Everyman, I will go with thee, and be thy guide, In thy most need to go by thy side. This is No. 734 of Everyman's Library. Alist of authors and their works in this serieswill be found at the end of this volume. Thepublishers will be pleased to send freely to allapplicants a separate, annotated list of theLibrary. J. M. DENT & SONS LIMITED10-13 BEDFORD STREET LONDON W. C. 2 E. P. DUTTON & CO. INC. 286-302 FOURTH AVENUENEW YORK EVERYMAN'S LIBRARYEDITED BY ERNEST RHYS HISTORY ANCIENT LAW BY SIR HENRY JAMES SUMNER MAINE INTRODUCTION BY PROF. J. H. MORGAN SIR HENRY JAMES SUMNER MAINE, the son of a doctor, born 1822 in India. Educated at Christ's Hospital and Pembroke College, Cambridge. In 1847 professor of civil law at Cambridge; 1850, called to the Bar. Member of Indian Council for seven years. Died at Cannes, 1888. ANCIENT LAW [Illustration] SIR HENRY MAINE LONDON: J. M. DENT & SONS LTD. NEW YORK: E. P. DUTTON & CO. INC. _All rights reserved Made in Great Britain at The Temple Press Letchworth and decorated by Eric Ravilious for J. M. Dent & Sons Ltd. Aldine House Bedford St. LondonFirst Published in this Edition 1917 Reprinted 1927, 1931, 1936_ INTRODUCTION No one who is interested in the growth of human ideas or the originsof human society can afford to neglect Maine's _Ancient Law_. Published some fifty-six years ago it immediately took rank as aclassic, and its epoch-making influence may not unfitly be compared tothat exercised by Darwin's _Origin of Species_. The revolutioneffected by the latter in the study of biology was hardly moreremarkable than that effected by Maine's brilliant treatise in thestudy of early institutions. Well does one of Maine's latest and mostlearned commentators say of his work that "he did nothing less thancreate the natural history of law. " This is only another way of sayingthat he demonstrated that our legal conceptions--using that term inits largest sense to include social and political institutions--are asmuch the product of historical development as biological organisms arethe outcome of evolution. This was a new departure, inasmuch as theschool of jurists, represented by Bentham and Austin, and of politicalphilosophers, headed by Hobbes, Locke, and their nineteenth-centurydisciples, had approached the study of law and political societyalmost entirely from an unhistoric point of view and had substituteddogmatism for historical investigation. They had read history, so faras they troubled to read it at all, "backwards, " and had investedearly man and early society with conceptions which, as a matter offact, are themselves historical products. The jurists, for example, had in their analysis of legal sovereignty postulated the commands ofa supreme lawgiver by simply ignoring the fact that, in point of time, custom precedes legislation and that early law is, to use Maine's ownphrase, "a habit" and not a conscious exercise of the volition of alawgiver or a legislature. The political philosophers, similarly, hadsought the origin of political society in a "state of nature"--humane, according to Locke and Rousseau, barbarous, according to Hobbes--inwhich men freely subscribed to an "original contract" whereby eachsubmitted to the will of all. It was not difficult to show, as Mainehas done, that contract--_i. E. _ the recognition of a mutual agreementas binding upon the parties who make it--is a conception which comesvery late to the human mind. But Maine's work covers much wider groundthan this. It may be summed up by saying that he shows that earlysociety, so far as we have any recognisable legal traces of it, beginswith the group, not with the individual. This group was, according to Maine's theory, the Family--that is tosay the Family as resting upon the patriarchal power of the father towhom all its members, wife, sons, daughters, and slaves, wereabsolutely subject. This, the central feature of Maine's speculation, is worked out with infinite suggestiveness and great felicity of stylein chapter V. ("Primitive Society and Ancient Law") of the presentwork, and his chief illustrations are sought in the history of Romanlaw. The topics of the other chapters are selected largely with a viewto supplying confirmation of the theory in question and, as we shallsee in a moment, Maine's later works do but serve to carry the trainof reasoning a step further by the use of the Comparative Method ininvoking evidence from other sources, notably from Irish and HinduLaw. Let us, however, confine ourselves for the moment to "AncientLaw. " Maine works out the implications of his theory by showing thatit, and it alone, can serve to explain such features of early Romanlaw as Agnation, _i. E. _ the tracing of descent exclusively throughmales, and Adoption, _i. E. _ the preservation of the family against theextinction of male heirs. The perpetual tutelage of women is theconsequence of this position. Moreover, all the members of the family, except its head, are in a condition best described as _status_: theyhave no power to acquire property, or to bequeath it, or to enter intocontracts in relation to it. The traces of this state of society areclearly visible in the pages of that classical text-book of Roman Law, the _Institutes_ of Justinian, [1] compiled in the sixth century A. D. , though equally visible is the disintegration wrought in it by thereforming activity of the praetor's edicts. That reformation followedthe course of a gradual emancipation of the members of the family, except those under age, from the despotic authority of the father. This gradual substitution of the Individual for the Family waseffected in a variety of ways, but in none more conspicuously than bythe development of the idea of contract, _i. E. _ of the capacity of theindividual to enter into independent agreements with strangers to hisfamily-group by which he was legally bound--an historical processwhich Maine sums up in his famous aphorism that the movement ofprogressive societies has hitherto been a movement from Status toContract. In the chapters on the early history of Wills, Property, and Contract, Maine supports his theory by showing that it is the key which unlocksmany, if not all, of the problems which those topics present. Thechapter on Wills--particularly the passage in which he explains whatis meant by Universal Succession--is a brilliant example of Maine'sanalytic power. He shows that a Will--in the sense of a secret andrevocable disposition of property only taking effect after the deathof the testator--is a conception unknown to early law, and that itmakes its first appearance as a means of transmitting the exercise ofdomestic sovereignty, the transfer of the property being only asubsidiary feature; wills only being permitted, in early times, incases where there was likely to be a failure of proper heirs. Thesubsequent popularity of wills, and the indulgence with which the lawcame to regard them, were due to a desire to correct the rigidity ofthe Patria Potestas, as reflected in the law of intestate succession, by giving free scope to natural affection. In other words, theconception of relationship as reckoned only through males, and asresting on the continuance of the children within their father'spower, gave way, through the instrumentality of the will, to the moremodern and more natural conception of relationship. In the chapter on Property Maine again shows that the theory of itsorigin in occupancy is too individualistic and that not separateownership but joint ownership is the really archaic institution. Thefather was in some sense (we must avoid importing modern terms) thetrustee of the joint property of the family. Here Maine makes anexcursion into the fields of the Early Village Community, and has, too, to look elsewhere than to Rome, where the village community hadalready been transformed by coalescence into the city-state. Hetherefore seeks his examples from India and points to the Indianvillage as an example of the expansion of the family into a largergroup of co-proprietors, larger but still bearing traces of its originto the patriarchal power. And, to quote his own words, "the mostimportant passage in the history of Private Property is its gradualseparation from the co-ownership of kinsmen. " The chapter on Contract, although it contains some of Maine's most suggestive writing, and thechapter on Delict and Crime, have a less direct bearing on his mainthesis except in so far as they go to show that the reason why thereis so little in early law of what we call civil, as distinct fromcriminal, law, and in particular of the Law of Contract, is to befound in the fact that, in the infancy of society, the Law of Persons, and with it the law of civil rights, is merged in the commonsubjection to Paternal Power. Such, putting it in the simplest possible language, is the mainargument of _Ancient Law_. The exigencies of space and of simplicitycompel me to pass by, to a large extent, most of the other topics withwhich Maine deals--the place of custom, code, and fiction in thedevelopment of early law, the affiliation of international Law to the_Jus Gentium_ and the Law of Nature, the origins of feudalism and ofprimogeniture, the early history of delict and crime, and that mostremarkable and profound passage in which Maine shows the heavy debt ofthe various sciences to Roman law and the influence which it hasexerted on the vocabulary of political science, the concepts of moralphilosophy, and the doctrines of theology. I must confine myself totwo questions: how far did Maine develop or modify in his subsequentwritings the main thesis of _Ancient Law_? to what extent has thisthesis stood the test of the criticism and research of others? Asregards the first point, it is to be remembered that _Ancient Law_ isbut the first, though doubtless the most important, of a whole seriesof works by its author on the subject of early law. It was followed atintervals by three volumes: _Village Communities in the East andWest_, _Early Institutions_, and _Early Law and_ _Custom_. In thefirst of these he dealt with a subject which has excited an enormousdegree of attention and not a little controversy among English, French, German, and Russian scholars, [2] amounting as it does tonothing less than an investigation into the origin of private propertyin land. The question has been put in various forms: did it commencewith joint (or, as some would put it, less justifiably, communal orcorporate) ownership or with individual ownership, and again was thevillage community free or servile? It is now pretty generallyrecognised that there was more than one type, though commoncultivation was doubtless a feature of them all, and even in Indiathere were at least two types, of which the one presenting several, asopposed to communal, ownership is not the less ancient. But it maywell be that, as Maitland so often pointed out, much of thecontroversy has been literally an anachronism; that is to say, thatnineteenth-century men have been asking the Early Ages questions whichthey could not answer and reading back into early history distinctionswhich are themselves historical products. Ownership is itself a lateabstraction developed out of use. We may say with some certainty thatfamily "ownership" preceded individual ownership, but in what sensethere was communal ownership by a whole village it is not so easy tosay. Maine was on surer ground when, as in his studies of Irish and Hindulaw, he confined himself to the more immediate circle of the familygroup. In his _Early Institutions_ he subjects the Brehon Laws ofearly Ireland to a suggestive examination as presenting an example ofCeltic law largely unaffected by Roman influences. He there shows, ashe has shown in _Ancient Law_, that in early times the only socialbrotherhood recognised was that of kinship, and that almost every formof social organisation, tribe, guild, and religious fraternity, wasconceived of under a similitude of it. Feudalism converted the villagecommunity, based on a real or assumed consanguinity of its members, into the fief in which the relations of tenant and lord were those ofcontract, while those of the unfree tenant rested on status. In his_Early Law and Custom_ he pursues much the same theme by anexamination of Hindu Law as presenting a peculiarly close implicationof early law with religion. Here he devotes his attention chiefly toAncestor-worship, a subject which about this time had engaged theattention, as regards its Greek and Roman forms, of that brilliantFrenchman, Fustel de Coulanges, whose monograph _La Cité Antique_ isnow a classic. As is well known, the right of inheriting a dead man'sproperty and the duty of performing his obsequies are co-relative tothis day in Hindu law, and his investigation of this subject bringsMaine back to the subject of the Patriarchal Power. He points out thatboth worshipper and the object of worship were exclusively males, andconcludes that it was the power of the father which generated thepractice of worshipping him, while this practice in turn, by thegradual admission of women to participate in the ceremonies, graduallyacted as a solvent upon the power itself. The necessity of findingsome one to perform these rites, on failure of direct male heirs, marked the beginning of the recognition of a right in women toinherit. The conception of the family becomes less intense and moreextensive. These discussions brought Maine, in chapter VII. Of _EarlyLaw and Custom_, to reconsider the main theory of _Ancient Law_ in thelight of the criticism to which it had been exposed, and every readerof _Ancient Law_ who desires to understand Maine's exact position inregard to the scope of his generalisations should read for himself thechapter in the later work entitled "Theories of Primitive Society. "His theory of the patriarchal power had been criticised by two ableand industrious anthropologists, M'Lennan and Morgan, who, by theirinvestigation of "survivals" among barbarous tribes in our own day, had arrived at the conclusion that, broadly speaking, the normalprocess through which society had passed was not patriarchal but"matriarchal, " _i. E. _ understanding by that term a system in whichdescent is traced through females. It would take up far too much spaceto enter into this controversy in detail. It is sufficient to say thatthe counter-theory rested on the assumption that society originatednot in families, based on the authority of the father and relationshipthrough him, but in promiscuous hordes among whom the only certainfact, and, consequently, the only recognised basis of relationship, was maternity. Maine's answer to this was that his generalisations asto the prevalence of the patriarchal power were confined toIndo-European races, and that he did not pretend to dogmatise aboutother races, also that he was dealing not with all societies but allthat had any permanence. He argues that the promiscuous horde, whereand when it is found, is to be explained as an abnormal case ofretrogression due to a fortuitous scarcity of females resulting inpolyandry, and he opposes to the theory of its predominance thepotency of sexual jealousy which might serve as only another name forthe patriarchal power. On the whole the better opinion is certainlywith Maine. His theory, at any rate, alone accords with a view ofsociety so soon as it is seen to possess any degree of civilisationand social cohesion. It will be seen that Maine's work, like that of most great thinkers, presents a singular coherence and intellectual elegance. It isdistinguished also by an extraordinary wide range of vision. He laysunder contribution with equal felicity and suggestiveness the OldTestament, the Homeric poems, the Latin dramatists, the laws of theBarbarians, the sacerdotal laws of the Hindus, the oracles of theBrehon caste, and the writings of the Roman jurists. In other words, he was a master of the Comparative Method. Few writers have thrown somuch light on the development of the human mind in its socialrelations. We know now--a hundred disciples have followed in Maine'sfootsteps and applied his teaching--how slow is the growth of thehuman intellect in these matters, with what painful steps man learnsto generalise, how convulsively he clings in the infancy ofcivilisation to the formal, the material, the realistic aspects ofthings, how late he develops such abstractions as "the State. " In allthis Maine first showed the way. As Sir Frederick Pollock hasadmirably put it-- 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 till 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. We may conclude with some remarks on Maine's views of thecontemporary problems of political society. Maine was what, for wantof a better term, may be called a Conservative, and, indeed, it may bedoubted whether, with the single exception of Burke, any Englishwriter has done more to provide English Conservatives with reasons forthe faith that is in them. He has set forth his views in a collectionof polemical essays under the title of _Popular Government_, whichwere given to the world in book form in 1885. He viewed the advent ofDemocracy with more distrust than alarm--he appears to have thought ita form of government which could not last--and he has an unerring eyefor its weaknesses. [3] Indeed, his remarks on the facility with whichDemocracy yields itself to manipulation by wire-pullers, newspapers, and demagogues, have found not a little confirmation in such studiesof the actual working of democratic government as M. Ostrogorski's_Democracy and the Organisation of Political Parties_. Maineemphasised the tyranny of majorities, the enslavement of untutoredminds by political catchwords, their susceptibility to "suggestion, "their readiness to adopt vicarious opinion in preference to anintellectual exercise of their own volition. It is not surprising thatthe writer who had subjected the theories of the Social Contract tosuch merciless criticism sighed for a scientific analysis of politicalterms as the first step to clear thinking about politics. Here he wason strong ground, but for such an analysis we have yet to wait. [4] Heseems to have placed his hopes in the adoption of some kind of writtenconstitution which, like the American prototype, would safeguard usfrom fundamental changes by the caprice of a single assembly. But thisis not the place to pursue such highly debateable matters. Enough ifwe say that the man who wishes to serve an apprenticeship to anintelligent understanding of the political society of the presentcannot do better than begin by a careful study of Maine's researchesinto the political society of the past. J. H. MORGAN. _Note. _--The reader who desires to study Maine in the light of modern criticism is recommended to read Sir F. Pollock's "Notes on Maine's _Ancient Law_" (published by John Murray at 2_s. _ 6_d. _, or, with the text, at 5_s. _). The best short study of Maine with which I am acquainted is the article by Professor Vinogradoff in the _Law Quarterly Review_ for April 1904. The field of research covered by Maine in his various writings is so vast that it is impossible to refer the reader, except at great length, to anything like an adequate list of later books on the subjects of his investigation. In addition to the works on the Village Community mentioned in a previous footnote, I may, however, refer the beginner to Mr. Edward Jenks' little book on _The History of Politics_ in Dent's Primers, to Professor Ashley's translation of a fragment of Fustel de Coulanges under the title of _The Origin of Property in Land_, and to Sir Frederick Pollock's brilliant little book, _The Expansion of the Common Law_. The reader is also recommended to study Mr. H. A. L. Fisher's succinct survey of the contributions of Maitland to legal history under the title of _F. W. Maitland; an Appreciation_ (Cambridge University Press). One of the most brilliant and ingenious studies of the origins of European civilisation is to be found in the work of the great German jurist, Ihering, _Die Vorgeschichte der Indo-Europder_, translated into English under the title of _The Early History of the Indo-European Races_ (Sonnenschein, 1897). [1] The reader who desires to pursue the subject by reference to one of Maine's chief authorities is recommended to read the translation of the _Institutes_ by Sandars. [2] English literature on the subject is best studied in Maitland's _Domesday Book and Beyond_, Vinogradoff's _The Growth of the Manor_ and _Villeinage in England_ (with an excellent historical introduction), and Seebohm's _English Village Community_. [3] Witness the characteristic sentence: "On the whole they [_i. E. _ the studies of earlier society] suggest that the differences which, after ages of change, separate the civilised man from savage or barbarian, are not so great as the vulgar opinion would have them. .. . Like the savage, he is a man of party with a newspaper for a totem . .. And like a savage he is apt to make of his totem his God. " [4] Something of the kind was done many years ago by Sir George Cornewall Lewis in his little book on the _Use and Abuse of Political Terms_. I have attempted to carry the task a step farther in an article which appeared in the form of a review of Lord Morley's "History and Politics" in the _Nineteenth Century_ for March 1913. BIBLIOGRAPHY Navis ornate atque armata in aquam deducitur (Prize Poem), 1842; TheBirth of the Prince of Wales (Prize Poem), 1842; Cæsar ad Rubiconemconstitit (Prize Poem), 1842; Memoir of H. F. Hallam, 1851; Roman Lawand Legal Education (Essay), 1856; Ancient Law: its Connection withthe Early History of Society and its Relation to Modern Ideas, 1861;Short Essays and Reviews on the Educational Policy of the Governmentof India, 1866; Village Communities in the East and West (Lectures), 1871; The Early History of the Property of Married Women as collectedfrom Roman and Hindoo Law (Lecture), 1873; The Effects of Observationof India on Modern European Thought (Lecture), 1875; Lectures on theEarly History of Institutions, 1875; Village Communities, etc. ; thirded. With other Lectures and Addresses, 1876; Dissertations on EarlyLaw and Custom (selected from Lectures), 1883; Popular Government(four Essays), 1885; India [1837-1887] (in "The Reign of QueenVictoria, " ed. By Thos. Humphry Ward, vol. I. ), 1887; The WhewellLectures: International Law, 1887, 1888; Ancient Law (ed. Withintroduction and notes by Sir Frederick Pollock), 1906; Ancient Law(Allahabad ed. , with introduction by K. C. Banerji), 1912. Contributions to: "Morning Chronicle, " 1851; "Cornhill Magazine, "1871; "Quarterly Review, " 1886; "Saturday Review, " and "St. James'sGazette. " A brief memoir of the life of Sir Henry Maine, by Sir M. E. Grant Duff;with some of his Indian speeches and minutes, selected by WhitleyStokes, 1892. PREFACE The chief object of the following pages is to indicate some of theearliest ideas of mankind, as they are reflected in Ancient Law, andto point out the relation of those ideas to modern thought. Much ofthe inquiry attempted could not have been prosecuted with theslightest hope of a useful result if there had not existed a body oflaw, like that of the Romans, bearing in its earliest portions thetraces of the most remote antiquity and supplying from its later rulesthe staple of the civil institutions by which modern society is evennow controlled. The necessity of taking the Roman law as a typicalsystem has compelled the author to draw from it what may appear adisproportionate number of his illustrations; but it has not been hisintention to write a treatise on Roman jurisprudence, and he has asmuch as possible avoided all discussions which might give thatappearance to his work. The space allotted in the third and fourthchapters to certain philosophical theories of the Roman Jurisconsultshas been appropriated to them for two reasons. In the first place, those theories appear to the author to have had a wider and morepermanent influence on the thought and action of the world than isusually supposed. Secondly, they are believed to be the ultimatesource of most of the views which have been prevalent, till quiterecently, on the subjects treated of in this volume. It was impossiblefor the author to proceed far with his undertaking without stating hisopinion on the origin, meaning, and value of those speculations. H. S. M. LONDON, _January 1861_. CONTENTS CHAP. PAGE I. ANCIENT CODES 1 II. LEGAL FICTIONS 13 III. LAW OF NATURE AND EQUITY 26 IV. THE MODERN HISTORY OF THE LAW OF NATURE 43 V. PRIMITIVE SOCIETY AND ANCIENT LAW 67 VI. THE EARLY HISTORY OF TESTAMENTARY SUCCESSION 101 VII. ANCIENT AND MODERN IDEAS RESPECTING WILLS AND SUCCESSIONS 127 VIII. THE EARLY HISTORY OF PROPERTY 144 IX. THE EARLY HISTORY OF CONTRACT 179 X. THE EARLY HISTORY OF DELICT AND CRIME 216 INDEX 235 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 itshistory, the expositors of Roman Law consistently employed languagewhich implied that the body of their system rested on the TwelveDecemviral Tables, and therefore on a basis of written law. Except inone particular, no institutions anterior to the Twelve Tables wererecognised at Rome. The theoretical descent of Roman jurisprudencefrom a code, the theoretical ascription of English law to immemorialunwritten tradition, were the chief reasons why the development oftheir system differed from the development of ours. Neither theorycorresponded exactly with the facts, but each produced consequences ofthe utmost importance. I need hardly say that the publication of the Twelve Tables is not theearliest point at which we can take up the history of law. The ancientRoman code belongs to a class of which almost every civilised nationin the world can show a sample, and which, so far as the Roman andHellenic worlds were concerned, were largely diffused over them atepochs not widely distant from one another. They appeared underexceedingly similar circumstances, and were produced, to ourknowledge, by very similar causes. Unquestionably, many juralphenomena lie behind these codes and preceded them in point of time. Not a few documentary records exist which profess to give usinformation concerning the early phenomena of law; but, untilphilology has effected a complete analysis of the Sanskrit literature, our best sources of knowledge are undoubtedly the Greek Homeric poems, considered of course not as a history of actual occurrences, but as adescription, not wholly idealised, of a state of society known to thewriter. However the fancy of the poet may have exaggerated certainfeatures of the heroic age, the prowess of warriors and the potency ofgods, there is no reason to believe that it has tampered with moral ormetaphysical conceptions which were not yet the subjects of consciousobservation; and in this respect the Homeric literature is far moretrustworthy than those relatively later documents which pretend togive an account of times similarly early, but which were compiledunder philosophical or theological influences. If by any means we candetermine the early forms of jural conceptions, they will beinvaluable to us. These rudimentary ideas are to the jurist what theprimary crusts of the earth are to the geologist. They contain, potentially, all the forms in which law has subsequently exhibiteditself. The haste or the prejudice which has generally refused themall but the most superficial examination, must bear the blame of theunsatisfactory condition in which we find the science ofjurisprudence. The inquiries of the jurist are in truth prosecutedmuch as inquiry in physics and physiology was prosecuted beforeobservation had taken the place of assumption. Theories, plausible andcomprehensive, but absolutely unverified, such as the Law of Nature orthe Social Compact, enjoy a universal preference over sober researchinto the primitive history of society and law; and they obscure thetruth not only by diverting attention from the only quarter in whichit can be found, but by that most real and most important influencewhich, when once entertained and believed in, they are enabled toexercise on the later stages of jurisprudence. The earliest notions connected with the conception, now so fullydeveloped, of a law or rule of life, are those contained in theHomeric words "Themis" and "Themistes. " "Themis, " it is well known, appears in the later Greek pantheon as the Goddess of Justice, butthis is a modern and much developed idea, and it is in a verydifferent sense that Themis is described in the Iliad as the assessorof Zeus. It is now clearly seen by all trustworthy observers of theprimitive condition of mankind that, in the infancy of the race, mencould only account for sustained or periodically recurring action bysupposing a personal agent. Thus, the wind blowing was a person and ofcourse a divine person; the sun rising, culminating, and setting wasa person and a divine person; the earth yielding her increase was aperson and divine. As, then, in the physical world, so in the moral. When a king decided a dispute by a sentence, the judgment was assumedto be the result of direct inspiration. The divine agent, suggestingjudicial awards to kings or to gods, the greatest of kings, was_Themis_. The peculiarity of the conception is brought out by the useof the plural. _Themistes_, Themises, the plural of _Themis_, are theawards themselves, divinely dictated to the judge. Kings are spoken ofas if they had a store of "Themistes" ready to hand for use; but itmust be distinctly understood that they are not laws, but judgments. "Zeus, or the human king on earth, " says Mr. Grote, in his History ofGreece, "is not a lawmaker, but a judge. " He is provided withThemistes, but, consistently with the belief in their emanation fromabove, they cannot be supposed to be connected by any thread ofprinciple; 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 simplemechanism of ancient society than they are now, and in the successionof similar cases awards are likely to follow and resemble each other. Here we have the germ or rudiment of a Custom, a conception posteriorto that of Themistes or judgments. However strongly we, with ourmodern associations, may be inclined to lay down _à priori_ that thenotion of a Custom must precede that of a judicial sentence, and thata judgment must affirm a Custom or punish its breach, it seems quitecertain that the historical order of the ideas is that in which I haveplaced them. The Homeric word for a custom in the embryo is sometimes"Themis" in the singular--more often "Dike, " the meaning of whichvisibly fluctuates between a "judgment" and a "custom" or "usage. "[Greek: Nomos], a Law, so great and famous a term in the politicalvocabulary of the later Greek society, does not occur in Homer. This notion of a divine agency, suggesting the Themistes, and itselfimpersonated in Themis, must be kept apart from other primitivebeliefs with which a superficial inquirer might confound it. Theconception of the Deity dictating an entire code or body of law, as inthe case of the Hindoo laws of Menu, seems to belong to a range ofideas more recent and more advanced. "Themis" and "Themistes" aremuch less remotely linked with that persuasion which clung so long andso tenaciously to the human mind, of a divine influence underlying andsupporting every relation of life, every social institution. In earlylaw, and amid the rudiments of political thought, symptoms of thisbelief meet us on all sides. A supernatural presidency is supposed toconsecrate and keep together all the cardinal institutions of thosetimes, the State, the Race, and the Family. Men, grouped together inthe different relations which those institutions imply, are bound tocelebrate periodically common rites and to offer common sacrifices;and every now and then the same duty is even more significantlyrecognised in the purifications and expiations which they perform, andwhich appear intended to deprecate punishment for involuntary orneglectful disrespect. Everybody acquainted with ordinary classicalliterature will remember the _sacra gentilicia_, which exercised soimportant an influence on the early Roman law of adoption and ofwills. And to this hour the Hindoo Customary Law, in which some of themost curious features of primitive society are stereotyped, makesalmost all the rights of persons and all the rules of succession hingeon the due solemnisation of fixed ceremonies at the dead man'sfuneral, that is, at every point where a breach occurs in thecontinuity of the family. Before we quit this stage of jurisprudence, a caution may be usefullygiven to the English student. Bentham, in his _Fragment onGovernment_, and Austin, in his _Province of JurisprudenceDetermined_, resolve every law into a _command_ of the lawgiver, _anobligation_ imposed thereby on the citizen, and a _sanction_threatened in the event of disobedience; and it is further predicatedof the _command_, which is the first element in a law, that it mustprescribe, not a single act, but a series or number of acts of thesame class or kind. The results of this separation of ingredientstally exactly with the facts of mature jurisprudence; and, by a littlestraining of language, they may be made to correspond in form with alllaw, of all kinds, at all epochs. It is not, however, asserted thatthe notion of law entertained by the generality is even now quite inconformity with this dissection; and it is curious that, the fartherwe penetrate into the primitive history of thought, the farther wefind ourselves from a conception of law which at all resembles acompound of the elements which Bentham determined. It is certainthat, in the infancy of mankind, no sort of legislature, not even adistinct author of law, is contemplated or conceived of. Law hasscarcely reached the footing of custom; it is rather a habit. It is, to use a French phrase, "in the air. " The only authoritative statementof right and wrong is a judicial sentence after the facts, not onepresupposing a law which has been violated, but one which is breathedfor the first time by a higher power into the judge's mind at themoment of adjudication. It is of course extremely difficult for us torealise a view so far removed from us in point both of time and ofassociation, but it will become more credible when we dwell more atlength on the constitution of ancient society, in which every man, living during the greater part of his life under the patriarchaldespotism, was practically controlled in all his actions by a regimennot of law but of caprice. I may add that an Englishman should bebetter able than a foreigner to appreciate the historical fact thatthe "Themistes" preceded any conception of law, because, amid the manyinconsistent theories which prevail concerning the character ofEnglish jurisprudence, the most popular, or at all events the onewhich most affects practice, is certainly a theory which assumes thatadjudged cases and precedents exist antecedently to rules, principles, and distinctions. The "Themistes" have too, it should be remarked, thecharacteristic which, in the view of Bentham and Austin, distinguishessingle or mere commands from laws. A true law enjoins on all thecitizens indifferently a number of acts similar in class or kind; andthis is exactly the feature of a law which has most deeply impresseditself on the popular mind, causing the term "law" to be applied tomere uniformities, successions, and similitudes. A _command_prescribes only a single act, and it is to commands, therefore, that"Themistes" are more akin than to laws. They are simply adjudicationson insulated states of fact, and do not necessarily follow each otherin any orderly sequence. The literature of the heroic age discloses to us law in the germ underthe "Themistes" and a little more developed in the conception of"Dike. " The next stage which we reach in the history of jurisprudenceis strongly marked and surrounded by the utmost interest. Mr. Grote, in the second part and second chapter of his History, has fullydescribed the mode in which society gradually clothed itself with adifferent character from that delineated by Homer. Heroic kingshipdepended partly on divinely given prerogative, and partly on thepossession of supereminent strength, courage, and wisdom. Gradually, as the impression of the monarch's sacredness became weakened, andfeeble members occurred in the series of hereditary kings, the royalpower decayed, and at last gave way to the dominion of aristocracies. If language so precise can be used of the revolution, we might saythat the office of the king was usurped by that council of chiefswhich Homer repeatedly alludes to and depicts. At all events from anepoch of kingly rule we come everywhere in Europe to an era ofoligarchies; and even where the name of the monarchical functions doesnot absolutely disappear, the authority of the king is reduced to amere shadow. He becomes a mere hereditary general, as in Lacedæmon, amere functionary, as the King Archon at Athens, or a mere formalhierophant, like the _Rex Sacrificulus_ at Rome. In Greece, Italy, andAsia Minor, the dominant orders seem to have universally consisted ofa number of families united by an assumed relationship in blood, and, though they all appear at first to have laid claim to a quasi-sacredcharacter, their strength does not seem to have resided in theirpretended sanctity. Unless they were prematurely overthrown by thepopular party, they all ultimately approached very closely to what weshould now understand by a political aristocracy. The changes whichsociety underwent in the communities of the further Asia occurred ofcourse at periods long anterior in point of time to these revolutionsof the Italian and Hellenic worlds; but their relative place incivilisation appears to have been the same, and they seem to have beenexceedingly similar in general character. There is some evidence thatthe races which were subsequently united under the Persian monarchy, and those which peopled the peninsula of India, had all their heroicage and their era of aristocracies; but a military and a religiousoligarchy appear to have grown up separately, nor was the authority ofthe king generally superseded. Contrary, too, to the course of eventsin the West, the religious element in the East tended to get thebetter of the military and political. Military and civil aristocraciesdisappear, annihilated or crushed into insignificance between thekings and the sacerdotal order; and the ultimate result at which wearrive is, a monarch enjoying great power, but circumscribed by theprivileges of a caste of priests. With these differences, however, that in the East aristocracies became religious, in the West civil orpolitical, the proposition that a historical era of aristocraciessucceeded a historical era of heroic kings may be considered as true, if not of all mankind, at all events of all branches of theIndo-European family of nations. The important point for the jurist is that these aristocracies wereuniversally the depositaries and administrators of law. They seem tohave succeeded to the prerogatives of the king, with the importantdifference, however, that they do not appear to have pretended todirect inspiration for each sentence. The connection of ideas whichcaused the judgments of the patriarchal chieftain to be attributed tosuperhuman dictation still shows itself here and there in the claim ofa divine origin for the entire body of rules, or for certain parts ofit, but the progress of thought no longer permits the solution ofparticular disputes to be explained by supposing an extra-humaninterposition. What the juristical oligarchy now claims is tomonopolise the _knowledge_ of the laws, to have the exclusivepossession of the principles by which quarrels are decided. We have infact arrived at the epoch of Customary Law. Customs or Observances nowexist as a substantive aggregate, and are assumed to be preciselyknown to the aristocratic order or caste. Our authorities leave us nodoubt that the trust lodged with the oligarchy was sometimes abused, but it certainly ought not to be regarded as a mere usurpation orengine of tyranny. Before the invention of writing, and during theinfancy of the art, an aristocracy invested with judicial privilegesformed the only expedient by which accurate preservation of thecustoms of the race or tribe could be at all approximated to. Theirgenuineness was, so far as possible, insured by confiding them to therecollection of a limited portion of the community. The epoch of Customary Law, and of its custody by a privileged order, is a very remarkable one. The condition of the jurisprudence which itimplies has left traces which may still be detected in legal andpopular phraseology. The law, thus known exclusively to a privilegedminority, whether a caste, an aristocracy, a priestly tribe, or asacerdotal college is true unwritten law. Except this, there is nosuch thing as unwritten law in the world. English case-law issometimes spoken of as unwritten, and there are some English theoristswho assure us that if a code of English jurisprudence were prepared weshould be turning unwritten law into written--a conversion, as theyinsist, if not of doubtful policy, at all events of the greatestseriousness. Now, it is quite true that there was once a period atwhich the English common law might reasonably have been termedunwritten. The elder English judges did really pretend to knowledge ofrules, principles, and distinctions which were not entirely revealedto the bar and to the lay-public. Whether all the law which theyclaimed to monopolise was really unwritten, is exceedinglyquestionable; but at all events, on the assumption that there was oncea large mass of civil and criminal rules known exclusively to thejudges, it presently ceased to be unwritten law. As soon as the Courtsat Westminster Hall began to base their judgments on cases recorded, whether in the year books or elsewhere, the law which theyadministered became written law. At the present moment a rule ofEnglish law has first to be disentangled from the recorded facts ofadjudged printed precedents, then thrown into a form of words varyingwith the taste, precision, and knowledge of the particular judge, andthen applied to the circumstances of the case for adjudication. But atno stage of this process has it any characteristic which distinguishesit from written law. It is written case-law, and only different fromcode-law because it is written in a different way. From the period of Customary Law we come to another sharply definedepoch in the history of jurisprudence. We arrive at the era of Codes, those ancient codes of which the Twelve Tables of Rome were the mostfamous specimen. In Greece, in Italy, on the Hellenised sea-board ofWestern Asia, these codes all made their appearance at periods muchthe same everywhere, not, I mean, at periods identical in point oftime, but similar in point of the relative progress of each community. Everywhere, in the countries I have named, laws engraven on tabletsand published to the people take the place of usages deposited withthe recollection of a privileged oligarchy. It must not for a momentbe supposed that the refined considerations now urged in favour ofwhat is called codification had any part or place in the change I havedescribed. The ancient codes were doubtless originally suggested bythe discovery and diffusion of the art of writing. It is true that thearistocracies seem to have abused their monopoly of legal knowledge;and at all events their exclusive possession of the law was aformidable impediment to the success of those popular movements whichbegan to be universal in the western world. But, though democraticsentiment may have added to their popularity, the codes were certainlyin the main a direct result of the invention of writing. Inscribedtablets were seen to be a better depositary of law, and a bettersecurity for its accurate preservation, than the memory of a number ofpersons 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 symmetricalclassifications, or to terseness and clearness of expression, but intheir publicity, and in the knowledge which they furnished toeverybody, 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 ofsystematic arrangement, but this is probably explained by thetradition that the framers of that body of law called in theassistance of Greeks who enjoyed the later Greek experience in the artof 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 evenless. Quite enough too remains of these collections, both in the Eastand in the West, to show that they mingled up religious, civil, andmerely moral ordinances, without any regard to differences in theiressential character; and this is consistent with all we know of earlythought from other sources, the severance of law from morality, and ofreligion from law, belonging very distinctly to the _later_ stages ofmental progress. But, whatever to a modern eye are the singularities of these Codes, their importance to ancient societies was unspeakable. Thequestion--and it was one which affected the whole future of eachcommunity--was not so much whether there should be a code at all, forthe majority of ancient societies seem to have obtained them sooner orlater, and, but for the great interruption in the history ofjurisprudence created by feudalism, it is likely that all modern lawwould be distinctly traceable to one or more of these fountain-heads. But the point on which turned the history of the race was, at whatperiod, at what stage of their social progress, they should have theirlaws put into writing. In the western world the plebeian or popularelement in each state successfully assailed the oligarchical monopoly, and a code was nearly universally obtained _early_ in the history ofthe Commonwealth. But in the East, as I have before mentioned, theruling aristocracies tended to become religious rather than militaryor political, and gained, therefore, rather than lost in power; whilein some instances the physical conformation of Asiatic countries hadthe effect of making individual communities larger and more numerousthan in the West; and it is a known social law that the larger thespace over which a particular set of institutions is diffused, thegreater is its tenacity and vitality. From whatever cause, the codesobtained by Eastern societies were obtained, relatively, much laterthan by Western, and wore a very different character. The religiousoligarchies of Asia, either for their own guidance, or for the reliefof their memory, or for the instruction of their disciples, seem inall cases to have ultimately embodied their legal learning in a code;but the opportunity of increasing and consolidating their influencewas probably too tempting to be resisted. Their complete monopoly oflegal knowledge appears to have enabled them to put off on the worldcollections, not so much of the rules actually observed as of therules which the priestly order considered proper to be observed. TheHindoo code, called the Laws of Menu, which is certainly a Brahmincompilation, undoubtedly enshrines many genuine observances of theHindoo race, but the opinion of the best contemporary orientalists is, that it does not, as a whole, represent a set of rules ever actuallyadministered in Hindostan. It is, in great part, an ideal picture ofthat which, in the view of the Brahmins, _ought_ to be the law. It isconsistent with human nature and with the special motives of theirauthors, that codes like that of Menu should pretend to the highestantiquity and claim to have emanated in their complete form from theDeity. Menu, according to Hindoo mythology, is an emanation from thesupreme God; but the compilation which bears his name, though itsexact date is not easily discovered, is, in point of the relativeprogress of Hindoo jurisprudence, a recent production. Among the chief advantages which the Twelve Tables and similar codesconferred on the societies which obtained them, was the protectionwhich they afforded against the frauds of the privileged oligarchy andalso against the spontaneous depravation and debasement of thenational institutions. The Roman Code was merely an enunciation inwords of the existing customs of the Roman people. Relatively to theprogress of the Romans in civilisation, it was a remarkably earlycode, and it was published at a time when Roman society had barelyemerged from that intellectual condition in which civil obligation andreligious duty are inevitably confounded. Now a barbarous societypractising a body of customs, is exposed to some especial dangerswhich may be absolutely fatal to its progress in civilisation. Theusages which a particular community is found to have adopted in itsinfancy and in its primitive seats are generally those which are onthe whole best suited to promote its physical and moral well-being;and, if they are retained in their integrity until new social wantshave taught new practices, the upward march of society is almostcertain. But unhappily there is a law of development which everthreatens to operate upon unwritten usage. The customs are of courseobeyed by multitudes who are incapable of understanding the trueground of their expediency, and who are therefore left inevitably toinvent superstitious reasons for their permanence. A process thencommences which may be shortly described by saying that usage which isreasonable generates usage which is unreasonable. Analogy, the mostvaluable of instruments in the maturity of jurisprudence, is the mostdangerous of snares in its infancy. Prohibitions and ordinances, originally confined, for good reasons, to a single description ofacts, are made to apply to all acts of the same class, because a manmenaced with the anger of the gods for doing one thing, feels anatural terror in doing any other thing which is remotely like it. After one kind of food has been interdicted for sanitary reasons, theprohibition is extended to all food resembling it, though theresemblance occasionally depends on analogies the most fanciful. So, again, a wise provision for insuring general cleanliness dictates intime long routines of ceremonial ablution; and that division intoclasses which at a particular crisis of social history is necessaryfor the maintenance of the national existence degenerates into themost disastrous and blighting of all human institutions--Caste. Thefate of the Hindoo law is, in fact, the measure of the value of theRoman code. Ethnology shows us that the Romans and the Hindoos sprangfrom the same original stock, and there is indeed a strikingresemblance between what appear to have been their original customs. Even now, Hindoo jurisprudence has a substratum of forethought andsound judgment, but irrational imitation has engrafted in it animmense apparatus of cruel absurdities. From these corruptions theRomans were protected by their code. It was compiled while the usagewas still wholesome, and a hundred years afterwards it might have beentoo late. The Hindoo law has been to a great extent embodied inwriting, but, ancient as in one sense are the compendia which stillexist in Sanskrit, they contain ample evidence that they were drawn upafter the mischief had been done. We are not of course entitled to saythat if the Twelve Tables had not been published the Romans would havebeen condemned to a civilisation as feeble and perverted as that ofthe Hindoos, but thus much at least is certain, that _with_ their codethey were exempt from the very chance of so unhappy a destiny. CHAPTER II LEGAL FICTIONS When primitive law has once been embodied in a Code, there is an endto what may be called its spontaneous development. Henceforward thechanges effected in it, if effected at all, are effected deliberatelyand from without. It is impossible to suppose that the customs of anyrace or tribe remained unaltered during the whole of the long--in someinstances the immense--interval between their declaration by apatriarchal monarch and their publication in writing. It would beunsafe too to affirm that no part of the alteration was effecteddeliberately. But from the little we know of the progress of lawduring this period, we are justified in assuming that set purpose hadthe very smallest share in producing change. Such innovations on theearliest usages as disclose themselves appear to have been dictated byfeelings and modes of thought which, under our present mentalconditions, we are unable to comprehend. A new era begins, however, with the Codes. Wherever, after this epoch, we trace the course oflegal modification we are able to attribute it to the conscious desireof improvement, or at all events of compassing objects other thanthose which were aimed at in the primitive times. It may seem at first sight that no general propositions worth trustingcan be elicited from the history of legal systems subsequent to thecodes. The field is too vast. We cannot be sure that we have includeda sufficient number of phenomena in our observations, or that weaccurately understand those which we have observed. But theundertaking will be seen to be more feasible, if we consider thatafter the epoch of codes the distinction between stationary andprogressive societies begins to make itself felt. It is only with theprogressive that we are concerned, and nothing is more remarkable thantheir extreme fewness. In spite of overwhelming evidence, it is mostdifficult for a citizen of western Europe to bring thoroughly home tohimself the truth that the civilisation which surrounds him is a rareexception in the history of the world. The tone of thought commonamong us, all our hopes, fears, and speculations, would be materiallyaffected, if we had vividly before us the relation of the progressiveraces to the totality of human life. It is indisputable that much thegreatest part of mankind has never shown a particle of desire that itscivil institutions should be improved since the moment when externalcompleteness was first given to them by their embodiment in somepermanent record. One set of usages has occasionally been violentlyoverthrown and superseded by another; here and there a primitive code, pretending to a supernatural origin, has been greatly extended, anddistorted into the most surprising forms, by the perversity ofsacerdotal commentators; but, except in a small section of the world, there has been nothing like the gradual amelioration of a legalsystem. There has been material civilisation, but, instead of thecivilisation expanding the law, the law has limited the civilisation. The study of races in their primitive condition affords us some clueto the point at which the development of certain societies hasstopped. We can see that Brahminical India has not passed beyond astage which occurs in the history of all the families of mankind, thestage at which a rule of law is not yet discriminated from a rule ofreligion. The members of such a society consider that thetransgression of a religious ordinance should be punished by civilpenalties, and that the violation of a civil duty exposes thedelinquent to divine correction. In China this point has been passed, but progress seems to have been there arrested, because the civil lawsare coextensive with all the ideas of which the race is capable. Thedifference 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 considerationsurged at the end of the last chapter. It may further be remarked thatno one is likely to succeed in the investigation who does not clearlyrealise that the stationary condition of the human race is the rule, the progressive the exception. And another indispensable condition ofsuccess is an accurate knowledge of Roman law in all its principalstages. The Roman jurisprudence has the longest known history of anyset of human institutions. The character of all the changes which itunderwent is tolerably well ascertained. From its commencement to itsclose, it was progressively modified for the better, or for whatthe authors of the modification conceived to be the better, and thecourse of improvement was continued through periods at which all therest of human thought and action materially slackened its pace, andrepeatedly threatened to settle down into stagnation. I confine myself in what follows to the progressive societies. Withrespect to them it may be laid down that social necessities and socialopinion are always more or less in advance of Law. We may comeindefinitely near to the closing of the gap between them, but it has aperpetual tendency to reopen. Law is stable; the societies we arespeaking of are progressive. The greater or less happiness of a peopledepends on the degree of promptitude with which the gulf is narrowed. A general proposition of some value may be advanced with respect tothe agencies by which Law is brought into harmony with society. Theseinstrumentalities seem to me to be three in number, Legal Fictions, Equity, and Legislation. Their historical order is that in which Ihave placed them. Sometimes two of them will be seen operatingtogether, and there are legal systems which have escaped the influenceof one or other of them. But I know of no instance in which the orderof their appearance has been changed or inverted. The early history ofone of them, Equity, is universally obscure, and hence it may bethought by some that certain isolated statutes, reformatory of thecivil law, are older than any equitable jurisdiction. My own belief isthat remedial Equity is everywhere older than remedial Legislation;but, should this be not strictly true, it would only be necessary tolimit the proposition respecting their order of sequence to theperiods at which they exercise a sustained and substantial influencein transforming the original law. I employ the word "fiction" in a sense considerably wider than that inwhich English lawyers are accustomed to use it, and with a meaningmuch more extensive than that which belonged to the Roman "fictiones. "Fictio, in old Roman law, is properly a term of pleading, andsignifies a false averment on the part of the plaintiff which thedefendant was not allowed to traverse; such, for example, as anaverment that the plaintiff was a Roman citizen, when in truth he wasa foreigner. The object of these "fictiones" was, of course, to givejurisdiction, and they therefore strongly resembled the allegationsin the writs of the English Queen's Bench, and Exchequer, by whichthose Courts contrived to usurp the jurisdiction of the CommonPleas:--the allegation that the defendant was in custody of the king'smarshal, or that the plaintiff was the king's debtor, and could notpay his debt by reason of the defendant's default. But I now employthe expression "Legal Fiction" to signify any assumption whichconceals, or affects to conceal, the fact that a rule of law hasundergone alteration, its letter remaining unchanged, its operationbeing modified. The words, therefore, include the instances offictions which I have cited from the English and Roman law, but theyembrace much more, for I should speak both of the English Case-law andof the Roman Responsa Prudentum as resting on fictions. Both theseexamples will be examined presently. The _fact_ is in both cases thatthe law has been wholly changed; the _fiction_ is that it remains whatit always was. It is not difficult to understand why fictions in alltheir forms are particularly congenial to the infancy of society. Theysatisfy the desire for improvement, which is not quite wanting, at thesame time that they do not offend the superstitious disrelish forchange which is always present. At a particular stage of socialprogress they are invaluable expedients for overcoming the rigidity oflaw, and, indeed, without one of them, the Fiction of Adoption whichpermits the family tie to be artificially created, it is difficult tounderstand how society would ever have escaped from its swaddlingclothes, and taken its first steps towards civilisation. We must, therefore, not suffer ourselves to be affected by the ridicule whichBentham pours on legal fictions wherever he meets them. To revile themas merely fraudulent is to betray ignorance of their peculiar officein the historical development of law. But at the same time it would beequally foolish to agree with those theorists, who, discerning thatfictions have had their uses, argue that they ought to be stereotypedin our system. They have had their day, but it has long since gone by. It is unworthy of us to effect an admittedly beneficial object by sorude a device as a legal fiction. I cannot admit any anomaly to beinnocent, which makes the law either more difficult to understand orharder to arrange in harmonious order. Now legal fictions are thegreatest of obstacles to symmetrical classification. The rule of lawremains sticking in the system, but it is a mere shell. It has beenlong ago undermined, and a new rule hides itself under its cover. Hence there is at once a difficulty in knowing whether the rule whichis actually operative should be classed in its true or in its apparentplace, and minds of different casts will differ as to the branch ofthe alternative which ought to be selected. If the English law is everto assume an orderly distribution, it will be necessary to prune awaythe legal fictions which, in spite of some recent legislativeimprovements, are still abundant in it. The next instrumentality by which the adaptation of law to socialwants is carried on I call Equity, meaning by that word any body ofrules existing by the side of the original civil law, founded ondistinct principles and claiming incidentally to supersede the civillaw in virtue of a superior sanctity inherent in those principles. TheEquity whether of the Roman Prætors or of the English Chancellors, differs from the Fictions which in each case preceded it, in that theinterference with law is open and avowed. On the other hand, itdiffers from Legislation, the agent of legal improvement which comesafter it, in that its claim to authority is grounded, not on theprerogative of any external person or body, not even on that of themagistrate who enunciates it, but on the special nature of itsprinciples, to which it is alleged that all law ought to conform. Thevery conception of a set of principles, invested with a highersacredness than those of the original law and demanding applicationindependently of the consent of any external body, belongs to a muchmore advanced stage of thought than that to which legal fictionsoriginally suggested themselves. Legislation, the enactments of a legislature which, whether it takethe form of an autocratic prince or of a parliamentary assembly, isthe assumed organ of the entire society, is the last of theameliorating instrumentalities. It differs from Legal Fictions just asEquity differs from them, and it is also distinguished from Equity, asderiving its authority from an external body or person. Its obligatoryforce is independent of its principles. The legislature, whatever bethe actual restraints imposed on it by public opinion, is in theoryempowered to impose what obligations it pleases on the members of thecommunity. There is nothing to prevent its legislating in thewantonness of caprice. Legislation may be dictated by equity, if thatlast word be used to indicate some standard of right and wrong towhich its enactments happen to be adjusted; but then these enactmentsare indebted for their binding force to the authority of thelegislature and not to that of the principles on which the legislatureacted; and thus they differ from rules of Equity, in the technicalsense of the word, which pretend to a paramount sacredness entitlingthem at once to the recognition of the courts even without theconcurrence of prince or parliamentary assembly. It is the morenecessary to note these differences, because a student of Benthamwould be apt to confound Fictions, Equity, and Statute law under thesingle head of legislation. They all, he would say, involve_law-making_; they differ only in respect of the machinery by whichthe new law is produced. That is perfectly true, and we must neverforget it; but it furnishes no reason why we should deprive ourselvesof so convenient a term as Legislation in the special sense. Legislation and Equity are disjoined in the popular mind and in theminds of most lawyers; and it will never do to neglect the distinctionbetween them, however conventional, when important practicalconsequences follow from it. It would be easy to select from almost any regularly developed body ofrules examples of _legal fictions_, which at once betray their truecharacter to the modern observer. In the two instances which I proceedto consider, the nature of the expedient employed is not so readilydetected. The first authors of these fictions did not perhaps intendto innovate, certainly did not wish to be suspected of innovating. There are, moreover, and always have been, persons who refuse to seeany fiction in the process, and conventional language bears out theirrefusal. No examples, therefore, can be better calculated toillustrate the wide diffusion of legal fictions, and the efficiencywith which they perform their two-fold office of transforming a systemof laws and of concealing the transformation. We in England are well accustomed to the extension, modification, andimprovement of law by a machinery which, in theory, is incapable ofaltering one jot or one line of existing jurisprudence. The process bywhich this virtual legislation is effected is not so much insensibleas unacknowledged. With respect to that great portion of our legalsystem which is enshrined in cases and recorded in law reports, wehabitually employ a double language and entertain, as it wouldappear, a double and inconsistent set of ideas. When a group of factscome before an English Court for adjudication, the whole course of thediscussion between the judge and the advocate assumes that no questionis, or can be, raised which will call for the application of anyprinciples but old ones, or any distinctions but such as have longsince been allowed. It is taken absolutely for granted that there issomewhere a rule of known law which will cover the facts of thedispute now litigated, and that, if such a rule be not discovered, itis only that the necessary patience, knowledge, or acumen is notforthcoming to detect it. Yet the moment the judgment has beenrendered and reported, we slide unconsciously or unavowedly into a newlanguage and a new train of thought. We now admit that the newdecision _has_ modified the law. The rules applicable have, to use thevery inaccurate expression sometimes employed, become more elastic. Infact they have been changed. A clear addition has been made to theprecedents, and the canon of law elicited by comparing the precedentsis not the same with that which would have been obtained if the seriesof cases had been curtailed by a single example. The fact that the oldrule 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 thelegal formulas which we derive from the precedents, so that a changein their tenor is not easily detected unless it is violent andglaring. I shall not now pause to consider at length the causes whichhave led English lawyers to acquiesce in these curious anomalies. Probably it will be found that originally it was the received doctrinethat somewhere, _in nubibus_ or _in gremio magistratuum_, thereexisted a complete, coherent, symmetrical body of English law, of anamplitude sufficient to furnish principles which would apply to anyconceivable combination of circumstances. The theory was at first muchmore thoroughly believed in than it is now, and indeed it may have hada better foundation. The judges of the thirteenth century may havereally had at their command a mine of law unrevealed to the bar and tothe lay-public, for there is some reason for suspecting that in secretthey borrowed freely, though not always wisely, from current compendiaof the Roman and Canon laws. But that storehouse was closed so soon asthe points decided at Westminster Hall became numerous enough tosupply a basis for a substantive system of jurisprudence; and now forcenturies English practitioners have so expressed themselves as toconvey the paradoxical proposition that, except by Equity and Statutelaw, nothing has been added to the basis since it was firstconstituted. We do not admit that our tribunals legislate; we implythat they have never legislated; and yet we maintain that the rules ofthe English common law, with some assistance from the Court ofChancery and from Parliament, are coextensive with the complicatedinterests of modern society. A body of law bearing a very close and very instructive resemblance toour case-law in those particulars which I have noticed, was known tothe Romans under the name of the Responsa Prudentum, the "answers ofthe learned in the law. " The form of these Responses varied a gooddeal at different periods of the Roman jurisprudence, but throughoutits whole course they consisted of explanatory glosses onauthoritative written documents, and at first they were exclusivelycollections of opinions interpretative of the Twelve Tables. As withus, all legal language adjusted itself to the assumption that the textof the old Code remained unchanged. There was the express rule. Itoverrode all glosses and comments, and no one openly admitted that anyinterpretation of it, however eminent the interpreter, was safe fromrevision on appeal to the venerable texts. Yet in point of fact, Booksof Responses bearing the names of leading jurisconsults obtained anauthority at least equal to that of our reported cases, and constantlymodified, extended, limited or practically overruled the provisions ofthe Decemviral law. The authors of the new jurisprudence during thewhole progress of its formation professed the most sedulous respectfor the letter of the Code. They were merely explaining it, deciphering it, bringing out its full meaning; but then, in theresult, by piecing texts together, by adjusting the law to states offact which actually presented themselves and by speculating on itspossible application to others which might occur, by introducingprinciples of interpretation derived from the exegesis of otherwritten documents which fell under their observation, they educed avast variety of canons which had never been dreamed of by thecompilers of the Twelve Tables and which were in truth rarely or neverto be found there. All these treatises of the jurisconsults claimedrespect on the ground of their assumed conformity with the Code, buttheir comparative authority depended on the reputation of theparticular jurisconsults who gave them to the world. Any name ofuniversally acknowledged greatness clothed a Book of Responses with abinding force hardly less than that which belonged to enactments ofthe legislature; and such a book in its turn constituted a newfoundation on which a further body of jurisprudence might rest. TheResponses of the early lawyers were not however published, in themodern sense, by their author. They were recorded and edited by hispupils, and were not therefore in all probability arranged accordingto any scheme of classification. The part of the students in thesepublications must be carefully noted, because the service theyrendered to their teacher seems to have been generally repaid by hissedulous attention to the pupils' education. The educational treatisescalled Institutes or Commentaries, which are a later fruit of the dutythen recognised, are among the most remarkable features of the Romansystem. It was apparently in these Institutional works, and not in thebooks intended for trained lawyers, that the jurisconsults gave to thepublic their classifications and their proposals for modifying andimproving the technical phraseology. In comparing the Roman Responsa Prudentum with their nearest Englishcounterpart, it must be carefully borne in mind that the authority bywhich this part of the Roman jurisprudence was expounded was not the_bench_, but the _bar_. The decision of a Roman tribunal, thoughconclusive in the particular case, had no ulterior authority exceptsuch as was given by the professional repute of the magistrate whohappened to be in office for the time. Properly speaking, there was noinstitution at Rome during the republic analogous to the EnglishBench, the Chambers of Imperial Germany, or the Parliaments ofMonarchical France. There were magistrates indeed, invested withmomentous judicial functions in their several departments, but thetenure of the magistracies was but for a single year, so that they aremuch less aptly compared to a permanent judicature than to a cycle ofoffices briskly circulating among the leaders of the bar. Much mightbe said on the origin of a condition of things which looks to us likea startling anomaly, but which was in fact much more congenial thanour own system to the spirit of ancient societies, tending, as theyalways did, to split into distinct orders which, however exclusivethemselves, tolerated no professional hierarchy above them. It is remarkable that this system did not produce certain effectswhich might on the whole have been expected from it. It did not, forexample, _popularise_ the Roman law--it did not, as in some of theGreek republics, lessen the effort of intellect required for themastery of the science, although its diffusion and authoritativeexposition were opposed by no artificial barriers. On the contrary, ifit had not been for the operation of a separate set of causes, therewere strong probabilities that the Roman jurisprudence would havebecome as minute, technical, and difficult as any system which hassince prevailed. Again, a consequence which might still more naturallyhave been looked for, does not appear at any time to have exhibiteditself. The jurisconsults, until the liberties of Rome wereoverthrown, formed a class which was quite undefined and must havefluctuated greatly in numbers; nevertheless, there does not seem tohave existed a doubt as to the particular individuals whose opinion, in their generation, was conclusive on the cases submitted to them. The vivid pictures of a leading jurisconsult's daily practice whichabound in Latin literature--the clients from the country flocking tohis antechamber in the early morning, and the students standing roundwith their note-books to record the great lawyer's replies--are seldomor never identified at any given period with more than one or twoconspicuous names. Owing too to the direct contact of the client andthe advocate, the Roman people itself seems to have been always aliveto the rise and fall of professional reputation, and there isabundance of proof, more particularly in the well-known oration ofCicero, _Pro Muræna_, that the reverence of the commons for forensicsuccess was apt to be excessive rather than deficient. We cannot doubt that the peculiarities which have been noted in theinstrumentality by which the development of the Roman law was firsteffected, were the source of its characteristic excellence, its earlywealth in principles. The growth and exuberance of principle wasfostered, in part, by the competition among the expositors of the law, an influence wholly unknown where there exists a Bench, thedepositaries intrusted by king or commonwealth with the prerogativeof justice. But the chief agency, no doubt, was the uncontrolledmultiplication of cases for legal decision. The state of facts whichcaused genuine perplexity to a country client was not a whit moreentitled to form the basis of the jurisconsult's Response, or legaldecision, than a set of hypothetical circumstances propounded by aningenious pupil. All combinations of fact were on precisely the samefooting, whether they were real or imaginary. It was nothing to thejurisconsult that his opinion was overruled for the moment by themagistrate who adjudicated on his client's case, unless thatmagistrate happened to rank above him in legal knowledge or the esteemof his profession. I do not, indeed, mean it to be inferred that hewould wholly omit to consider his client's advantage, for the clientwas in earlier times the great lawyer's constituent and at a laterperiod his paymaster, but the main road to the rewards of ambition laythrough the good opinion of his order, and it is obvious that undersuch a system as I have been describing this was much more likely tobe secured by viewing each case as an illustration of a greatprinciple, or an exemplification of a broad rule, than by merelyshaping it for an insulated forensic triumph. A still more powerfulinfluence must have been exercised by the want of any distinct checkon the suggestion or invention of possible questions. Where the datacan be multiplied at pleasure, the facilities for evolving a generalrule are immensely increased. As the law is administered amongourselves, the judge cannot travel out of the sets of facts exhibitedbefore him or before his predecessors. Accordingly each group ofcircumstances which is adjudicated upon receives, to employ aGallicism, a sort of consecration. It acquires certain qualities whichdistinguish it from every other case genuine or hypothetical. But atRome, as I have attempted to explain, there was nothing resembling aBench or Chamber of judges; and therefore no combination of factspossessed any particular value more than another. When a difficultycame for opinion before the jurisconsult, there was nothing to preventa person endowed with a nice perception of analogy from at onceproceeding to adduce and consider an entire class of supposedquestions with which a particular feature connected it. Whatever werethe practical advice given to the client, the _responsum_ treasured upin the note-books of listening pupils would doubtless contemplate thecircumstances as governed by a great principle, or included in asweeping rule. Nothing like this has ever been possible amongourselves, and it should be acknowledged that in many criticismspassed on the English law the manner in which it has been enunciatedseems to have been lost sight of. The hesitation of our courts indeclaring principles may be much more reasonably attributed to thecomparative scantiness of our precedents, voluminous as they appear tohim who is acquainted with no other system, than to the temper of ourjudges. It is true that in the wealth of legal principle we areconsiderably poorer than several modern European nations, But they, itmust be remembered, took the Roman jurisprudence for the foundation oftheir civil institutions. They built the _débris_ of the Roman lawinto their walls; but in the materials, and workmanship of the residuethere is not much which distinguishes it favourably from the structureerected by the English judicature. The period of Roman freedom was the period during which the stamp of adistinctive character was impressed on the Roman jurisprudence; andthrough all the earlier part of it, it was by the Responses of thejurisconsults that the development of the law was mainly carried on. But as we approach the fall of the republic there are signs that theResponses are assuming a form which must have been fatal to theirfarther expansion. They are becoming systematised and reduced intocompendia. Q. Mucius Scævola, the Pontifex, is said to have publisheda manual of the entire Civil Law, and there are traces in the writingsof Cicero of growing disrelish for the old methods, as compared withthe more active instruments of legal innovation. Other agencies had infact by this time been brought to bear on the law. The Edict, orannual proclamation of the Prætor, had risen into credit as theprincipal engine of law reform, and L. Cornelius Sylla, by causing tobe enacted the great group of statutes called the _Leges Corneliæ_, had shown what rapid and speedy improvements can be effected by directlegislation. The final blow to the Responses was dealt by Augustus, who limited to a few leading jurisconsults the right of giving bindingopinions on cases submitted to them, a change which, though it bringsus nearer the ideas of the modern world, must obviously have alteredfundamentally the characteristics of the legal profession and thenature of its influence on Roman law. At a later period anotherschool of jurisconsults arose, the great lights of jurisprudence forall time. But Ulpian and Paulus, Gaius and Papinian, were not authorsof Responses. Their works were regular treatises on particulardepartments of the law, more especially on the Prætor's Edict. The _Equity_ of the Romans and the Prætorian Edict by which it wasworked into their system, will be considered in the next chapter. Ofthe Statute Law it is only necessary to say that it was scanty duringthe republic, but became very voluminous under the empire. In theyouth and infancy of a nation it is a rare thing for the legislatureto be called into action for the general reform of private law. Thecry of the people is not for change in the laws, which are usuallyvalued above their real worth, but solely for their pure, complete, and easy administration; and recourse to the legislative body isgenerally directed to the removal of some great abuse, or the decisionof some incurable quarrel between classes and dynasties. There seemsin the minds of the Romans to have been some association between theenactment of a large body of statutes and the settlement of societyafter a great civil commotion. Sylla signalised his reconstitution ofthe republic by the Leges Corneliæ; Julius Cæsar contemplated vastadditions to the Statute Law; Augustus caused to be passed theall-important group of Leges Juliæ; and among later emperors the mostactive promulgators of constitutions are princes who, likeConstantine, have the concerns of the world to readjust. The trueperiod of Roman Statute Law does not begin till the establishment ofthe empire. The enactments of the emperors, clothed at first in thepretence of popular sanction, but afterwards emanating undisguisedlyfrom the imperial prerogative, extend in increasing massiveness fromthe consolidation of Augustus's power to the publication of the Codeof Justinian. It will be seen that even in the reign of the secondemperor a considerable approximation is made to that condition of thelaw and that mode of administering it with which we are all familiar. A statute law and a limited board of expositors have risen into being;a permanent court of appeal and a collection of approved commentarieswill very shortly be added; and thus we are brought close on the ideasof our own day. CHAPTER III LAW OF NATURE AND EQUITY The theory of a set of legal principles, entitled by their intrinsicsuperiority to supersede the older law, very early obtained currencyboth in the Roman state and in England. Such a body of principles, existing in any system, has in the foregoing chapters been denominatedEquity, a term which, as will presently be seen, was one (though onlyone) of the designations by which this agent of legal change was knownto the Roman jurisconsults. The jurisprudence of the Court ofChancery, which bears the name of Equity in England, could only beadequately discussed in a separate treatise. It is extremely complexin its texture and derives its materials from several heterogeneoussources. The early ecclesiastical chancellors contributed to it, fromthe Canon Law, many of the principles which lie deepest in itsstructure. The Roman law, more fertile than the Canon Law in rulesapplicable to secular disputes, was not seldom resorted to by a latergeneration of Chancery judges, amid whose recorded dicta we often findentire texts from the _Corpus Juris Civilis_ imbedded, with theirterms unaltered, though their origin is never acknowledged. Still morerecently, and particularly at the middle and during the latter half ofthe eighteenth century, the mixed systems of jurisprudence and moralsconstructed by the publicists of the Low Countries appear to have beenmuch studied by English lawyers, and from the chancellorship of LordTalbot to the commencement of Lord Eldon's chancellorship these workshad considerable effect on the rulings of the Court of Chancery. Thesystem, which obtained its ingredients from these various quarters, was greatly controlled in its growth by the necessity imposed on it ofconforming itself to the analogies of the common law, but it hasalways answered the description of a body of comparatively novel legalprinciples claiming to override the older jurisprudence of the countryon the strength of an intrinsic ethical superiority. The Equity of Rome was a much simpler structure, and its developmentfrom its first appearance can be much more easily traced. Both itscharacter and its history deserve attentive examination. It is theroot of several conceptions which have exercised profound influence onhuman thought, and through human thought have seriously affected thedestinies of mankind. The Romans described their legal system as consisting of twoingredients. "All nations, " says the Institutional Treatise publishedunder the authority of the Emperor Justinian, "who are ruled by lawsand customs, are governed partly by their own particular laws, andpartly by those laws which are common to all mankind. The law which apeople enacts is called the Civil Law of that people, but that whichnatural reason appoints for all mankind is called the Law of Nations, because all nations use it. " The part of the law "which natural reasonappoints for all mankind" was the element which the Edict of thePrætor was supposed to have worked into Roman jurisprudence. Elsewhereit is styled more simply Jus Naturale, or the Law of Nature; and itsordinances are said to be dictated by Natural Equity (_naturalisæquitas_) as well as by natural reason. I shall attempt to discoverthe origin of these famous phrases, Law of Nations, Law of Nature, Equity, and to determine how the conceptions which they indicate arerelated to one another. The most superficial student of Roman history must be struck by theextraordinary degree in which the fortunes of the republic wereaffected by the presence of foreigners, under different names, on hersoil. The causes of this immigration are discernible enough at a laterperiod, for we can readily understand why men of all races shouldflock to the mistress of the world; but the same phenomenon of a largepopulation of foreigners and denizens meets us in the very earliestrecords of the Roman State. No doubt, the instability of society inancient Italy, composed as it was in great measure of robber tribes, gave men considerable inducement to locate themselves in the territoryof any community strong enough to protect itself and them fromexternal attack, even though protection should be purchased at thecost of heavy taxation, political disfranchisement, and much socialhumiliation. It is probable, however, that this explanation isimperfect, and that it could only be completed by taking into accountthose active commercial relations which, though they are littlereflected in the military traditions of the republic, Rome appearscertainly to have had with Carthage and with the interior of Italy inpre-historic times. Whatever were the circumstances to which it wasattributable, the foreign element in the commonwealth determined thewhole course of its history, which, at all its stages, is little morethan a narrative of conflicts between a stubborn nationality and analien population. Nothing like this has been seen in modern times; onthe one hand, because modern European communities have seldom or neverreceived any accession of foreign immigrants which was large enough tomake itself felt by the bulk of the native citizens, and on the other, because modern states, being held together by allegiance to a king orpolitical superior, absorb considerable bodies of immigrant settlerswith a quickness unknown to the ancient world, where the originalcitizens of a commonwealth always believed themselves to be united bykinship in blood, and resented a claim to equality of privilege as ausurpation of their birthright. In the early Roman republic theprinciple of the absolute exclusion of foreigners pervaded the CivilLaw no less than the Constitution. The alien or denizen could have noshare in any institution supposed to be coeval with the State. Hecould not have the benefit of Quiritarian law. He could not be a partyto the _nexum_ which was at once the conveyance and the contract ofthe primitive Romans. He could not sue by the Sacramental Action, amode of litigation of which the origin mounts up to the very infancyof civilisation. Still, neither the interest nor the security of Romepermitted him to be quite outlawed. All ancient communities ran therisk of being overthrown by a very slight disturbance of equilibrium, and the mere instinct of self-preservation would force the Romans todevise some method of adjusting the rights and duties of foreigners, who might otherwise--and this was a danger of real importance in theancient world--have decided their controversies by armed strife. Moreover, at no period of Roman history was foreign trade entirelyneglected. It was therefore probably half as a measure of police andhalf in furtherance of commerce that jurisdiction was first assumed indisputes to which the parties were either foreigners or a native and aforeigner. The assumption of such a jurisdiction brought with it theimmediate necessity of discovering some principles on which thequestions to be adjudicated upon could be settled, and the principlesapplied to this object by the Roman lawyers were eminentlycharacteristic of the time. They refused, as I have said before, todecide the new cases by pure Roman Civil Law. They refused, no doubtbecause it seemed to involve some kind of degradation, to apply thelaw of the particular State from which the foreign litigant came. Theexpedient to which they resorted was that of selecting the rules oflaw common to Rome and to the different Italian communities in whichthe immigrants were born. In other words, they set themselves to forma system answering to the primitive and literal meaning of JusGentium, that is, Law common to all Nations. Jus Gentium was, in fact, the sum of the common ingredients in the customs of the old Italiantribes, for they were _all the nations_ whom the Romans had the meansof observing, and who sent successive swarms of immigrants to Romansoil. Whenever a particular usage was seen to be practised by a largenumber of separate races in common it was set down as part of the Lawcommon to all Nations, or Jus Gentium. Thus, although the conveyanceof property was certainly accompanied by very different forms in thedifferent commonwealths surrounding Rome, the actual transfer, tradition, or delivery of the article intended to be conveyed was apart of the ceremonial in all of them. It was, for instance, a part, though a subordinate part, in the Mancipation or conveyance peculiarto Rome. Tradition, therefore, being in all probability the onlycommon ingredient in the modes of conveyance which the jurisconsultshad the means of observing, was set down as an institution JurisGentium, or rule of the Law common to all Nations. A vast number ofother observances were scrutinised with the same result. Some commoncharacteristic was discovered in all of them, which had a commonobject, and this characteristic was classed in the Jus Gentium. TheJus Gentium was accordingly a collection of rules and principles, determined by observation to be common to the institutions whichprevailed among the various Italian tribes. The circumstances of the origin of the Jus Gentium are probably asufficient safeguard against the mistake of supposing that the Romanlawyers had any special respect for it. It was the fruit in part oftheir disdain for all foreign law, and in part of their disinclinationto give the foreigner the advantage of their own indigenous JusCivile. It is true that we, at the present day, should probably take avery different view of the Jus Gentium, if we were performing theoperation which was effected by the Roman jurisconsults. We shouldattach some vague superiority or precedence to the element which wehad thus discerned underlying and pervading so great a variety ofusage. We should have a sort of respect for rules and principles souniversal. Perhaps we should speak of the common ingredient as beingof the essence of the transaction into which it entered, and shouldstigmatise the remaining apparatus of ceremony, which varied indifferent communities, as adventitious and accidental. Or it may be, we should infer that the races which we were comparing had once obeyeda great system of common institutions of which the Jus Gentium was thereproduction, and that the complicated usages of separatecommonwealths were only corruptions and depravations of the simplerordinances which had once regulated their primitive state. But theresults to which modern ideas conduct the observer are, as nearly aspossible, the reverse of those which were instinctively brought hometo the primitive Roman. What we respect or admire, he disliked orregarded with jealous dread. The parts of jurisprudence which helooked upon with affection were exactly those which a modern theoristleaves out of consideration as accidental and transitory; the solemngestures of the mancipation; the nicely adjusted questions and answersof the verbal contract; the endless formalities of pleading andprocedure. The Jus Gentium was merely a system forced on his attentionby a political necessity. He loved it as little as he loved theforeigners from whose institutions it was derived and for whosebenefit it was intended. A complete revolution in his ideas wasrequired before it could challenge his respect, but so complete was itwhen it did occur, that the true reason why our modern estimate of theJus Gentium differs from that which has just been described, is thatboth modern jurisprudence and modern philosophy have inherited thematured views of the later jurisconsults on this subject. There didcome a time, when from an ignoble appendage of the Jus Civile, the JusGentium came to be considered a great though as yet imperfectlydeveloped model to which all law ought as far as possible to conform. This crisis arrived when the Greek theory of a Law of Nature wasapplied to the practical Roman administration of the Law common toall Nations. The Jus Naturale, or Law of Nature, is simply the Jus Gentium or Lawof Nations seen in the light of a peculiar theory. An unfortunateattempt to discriminate them was made by the jurisconsult Ulpian, withthe propensity to distinguish characteristic of a lawyer, but thelanguage of Gaius, a much higher authority, and the passage quotedbefore from the Institutes leave no room for doubt, that theexpressions were practically convertible. The difference between themwas entirely historical, and no distinction in essence could ever beestablished between them. It is almost unnecessary to add that theconfusion between Jus Gentium, or Law common to all Nations, and_international law_ is entirely modern. The classical expression forinternational law is Jus Feciale or the law of negotiation anddiplomacy. It is, however, unquestionable that indistinct impressionsas to the meaning of Jus Gentium had considerable share in producingthe modern theory that the relations of independent states aregoverned by the Law of Nature. It becomes necessary to investigate the Greek conceptions of natureand her law. The word [Greek: physis], which was rendered in the Latin_natura_ and our _nature_, denoted beyond all doubt originally thematerial universe, but it was the material universe contemplated underan aspect which--such is our intellectual distance from thosetimes--it is not very easy to delineate in modern language. Naturesignified the physical world regarded as the result of some primordialelement or law. The oldest Greek philosophers had been accustomed toexplain the fabric of creation as the manifestation of some singleprinciple which they variously asserted to be movement, force, fire, moisture, or generation. In its simplest and most ancient sense, Nature is precisely the physical universe looked upon in this way asthe manifestation of a principle. Afterwards, the later Greek sects, returning to a path from which the greatest intellects of Greece hadmeanwhile strayed, added the _moral_ to the _physical_ world in theconception of Nature. They extended the term till it embraced notmerely the visible creation, but the thoughts, observances, andaspirations of mankind. Still, as before, it was not solely the moralphenomena of human society which they understood by _Nature_, butthese phenomena considered as resolvable into some general and simplelaws. Now, just as the oldest Greek theorists supposed that the sports ofchance had changed the material universe from its simple primitiveform into its present heterogeneous condition, so their intellectualdescendants imagined that but for untoward accident the human racewould have conformed itself to simpler rules of conduct and a lesstempestuous life. To live according to _nature_ came to be consideredas the end for which man was created, and which the best men werebound to compass. To live according to _nature_ was to rise above thedisorderly habits and gross indulgences of the vulgar to higher lawsof action which nothing but self-denial and self-command would enablethe aspirant to observe. It is notorious that this proposition--liveaccording to nature--was the sum of the tenets of the famous Stoicphilosophy. Now on the subjugation of Greece that philosophy madeinstantaneous progress in Roman society. It possessed naturalfascinations for the powerful class who, in theory at least, adheredto the simple habits of the ancient Italian race, and disdained tosurrender themselves to the innovations of foreign fashions. Suchpersons began immediately to affect the Stoic precepts of lifeaccording to nature--an affectation all the more grateful, and, I mayadd, all the more noble, from its contrast with the unboundedprofligacy which was being diffused through the imperial city by thepillage of the world and by the example of its most luxurious races. In the front of the disciples of the new Greek school, we might besure, even if we did not know it historically, that the Roman lawyersfigured. We have abundant proof that, there being substantially buttwo professions in the Roman republic, the military men were generallyidentified with the party of movement, but the lawyers were universallyat the head of the party of resistance. The alliance of the lawyers with the Stoic philosophers lasted throughmany centuries. Some of the earliest names in the series of renownedjurisconsults are associated with Stoicism, and ultimately we have thegolden age of Roman jurisprudence fixed by general consent at the eraof the Antonine Cæsars, the most famous disciples to whom thatphilosophy has given a rule of life. The long diffusion of thesedoctrines among the members of a particular profession was sure toaffect the art which they practised and influenced. Several positionswhich we find in the remains of the Roman jurisconsults are scarcelyintelligible, unless we use the Stoic tenets as our key; but at thesame time it is a serious, though a very common, error to measure theinfluence of Stoicism on Roman law by counting up the number of legalrules which can be confidently affiliated on Stoical dogmas. It hasoften been observed that the strength of Stoicism resided not in itscanons of conduct, which were often repulsive or ridiculous, but inthe great though vague principle which it inculcated of resistance topassion. Just in the same way the influence on jurisprudence of theGreek theories, which had their most distinct expression in Stoicism, consisted not in the number of specific positions which theycontributed to Roman law, but in the single fundamental assumptionwhich they lent to it. After nature had become a household word in themouths of the Romans, the belief gradually prevailed among the Romanlawyers that the old Jus Gentium was in fact the lost code of Nature, and that the Prætor in framing an Edictal jurisprudence on theprinciples of the Jus Gentium was gradually restoring a type fromwhich law had only departed to deteriorate. The inference from thisbelief was immediate, that it was the Prætor's duty to supersede theCivil Law as much as possible by the Edict, to revive as far as mightbe the institutions by which Nature had governed man in the primitivestate. Of course, there were many impediments to the amelioration oflaw by this agency. There may have been prejudices to overcome even inthe legal profession itself, and Roman habits were far too tenaciousto give way at once to mere philosophical theory. The indirect methodsby which the Edict combated certain technical anomalies, show thecaution which its authors were compelled to observe, and down to thevery days of Justinian there was some part of the old law which hadobstinately resisted its influence. But, on the whole, the progress ofthe Romans in legal improvement was astonishingly rapid as soon asstimulus was applied to it by the theory of Natural Law. The ideas ofsimplification and generalisation had always been associated with theconception of Nature; simplicity, symmetry, and intelligibility cametherefore to be regarded as the characteristics of a good legalsystem, and the taste for involved language, multiplied ceremonials, and useless difficulties disappeared altogether. The strong will, andunusual opportunities of Justinian were needed to bring the Roman lawto its existing shape, but the ground plan of the system had beensketched long before the imperial reforms were effected. What was the exact point of contact between the old Jus Gentium andthe Law of Nature? I think that they touch and blend through Æquitas, or Equity in its original sense; and here we seem to come to the firstappearance in jurisprudence of this famous term, Equity. In examiningan expression which has so remote an origin and so long a history asthis, it is always safest to penetrate, if possible, to the simplemetaphor or figure which at first shadowed forth the conception. Ithas generally been supposed that Æquitas is the equivalent of theGreek [Greek: isotês], _i. E. _ the principle of equal or proportionatedistribution. The equal division of numbers or physical magnitudes isdoubtless closely entwined with our perceptions of justice; there arefew associations which keep their ground in the mind so stubbornly orare dismissed from it with such difficulty by the deepest thinkers. Yet in tracing the history of this association, it certainly does notseem to have suggested itself to very early thought, but is rather theoffspring of a comparatively late philosophy. It is remarkable toothat the "equality" of laws on which the Greek democracies pridedthemselves--that equality which, in the beautiful drinking song ofCallistratus, Harmodius and Aristogiton are said to have given toAthens--had little in common with the "equity" of the Romans. Thefirst was an equal administration of civil laws among the citizens, however limited the class of citizens might be; the last implied theapplicability of a law, which was not civil law, to a class which didnot necessarily consist of citizens. The first excluded a despot; thelast included foreigners, and for some purposes slaves. On the whole, I should be disposed to look in another direction for the germ of theRoman "Equity. " The Latin word "æquus" carries with it more distinctlythan the Greek "[Greek: isos]" the sense of _levelling_. Now itslevelling tendency was exactly the characteristic of the Jus Gentium, which would be most striking to a primitive Roman. The pureQuiritarian law recognised a multitude of arbitrary distinctionsbetween classes of men and kinds of property; the Jus Gentium, generalised from a comparison of various customs, neglected theQuiritarian divisions. The old Roman law established, for example, afundamental difference between "Agnatic" and "Cognatic" relationship, that is, between the Family considered as based upon common subjectionto patriarchal authority and the Family considered (in conformity withmodern ideas) as united through the mere fact of a common descent. This distinction disappears in the "law common to all nations, " asalso does the difference between the archaic forms of property, Things"Mancipi" and Things "nec Mancipi. " The neglect of demarcations andboundaries seems to me, therefore, the feature of the Jus Gentiumwhich was depicted in Æquitas. I imagine that the word was at first amere description of that constant _levelling_ or removal ofirregularities which went on wherever the prætorian system was appliedto the cases of foreign litigants. Probably no colour of ethicalmeaning belonged at first to the expression; nor is there any reasonto believe that the process which it indicated was otherwise thanextremely distasteful to the primitive Roman mind. On the other hand, the feature of the Jus Gentium which was presentedto the apprehension of a Roman by the word Equity, was exactly thefirst and most vividly realised characteristic of the hypotheticalstate of nature. Nature implied symmetrical order, first in thephysical world, and next in the moral, and the earliest notion oforder doubtless involved straight lines, even surfaces, and measureddistances. The same sort of picture or figure would be unconsciouslybefore the mind's eye, whether it strove to form the outlines of thesupposed natural state, or whether it took in at a glance the actualadministration of the "law common to all nations"; and all we know ofprimitive thought would lead us to conclude that this ideal similaritywould do much to encourage the belief in an identity of the twoconceptions. But then, while the Jus Gentium had little or noantecedent credit at Rome, the theory of a Law of Nature came insurrounded with all the prestige of philosophical authority, andinvested with the charms of association with an elder and moreblissful condition of the race. It is easy to understand how thedifference in the point of view would affect the dignity of the termwhich at once described the operation of the old principles and theresults of the new theory. Even to modern ears it is not at all thesame thing to describe a process as one of "levelling" and to call itthe "correction of anomalies, " though the metaphor is precisely thesame. Nor do I doubt that, when once Æquitas was understood to conveyan allusion to the Greek theory, associations which grew out of theGreek notion of [Greek: isotês] began to cluster round it. Thelanguage of Cicero renders it more than likely that this was so, andit was the first stage of a transmutation of the conception of Equity, which almost every ethical system which has appeared since those dayshas more or less helped to carry on. Something must be said of the formal instrumentality by which theprinciples and distinctions associated, first with the Law common toall Nations, and afterwards with the Law of Nature, were graduallyincorporated with the Roman law. At the crisis of primitive Romanhistory which is marked by the expulsion of the Tarquins, a changeoccurred which has its parallel in the early annals of many ancientstates, but which had little in common with those passages ofpolitical affairs which we now term revolutions. It may best bedescribed by saying that the monarchy was put into commission. Thepowers heretofore accumulated in the hands of a single person wereparcelled out among a number of elective functionaries, the very nameof the kingly office being retained and imposed on a personage knownsubsequently as the Rex Sacrorum or Rex Sacrificulus. As part of thechange, the settled duties of the supreme judicial office devolved onthe Prætor, at the time the first functionary in the commonwealth, andtogether with these duties was transferred the undefined supremacyover law and legislation which always attached to ancient sovereignsand which is not obscurely related to the patriarchal and heroicauthority they had once enjoyed. The circumstances of Rome gave greatimportance to the more indefinite portion of the functions thus astransferred, as with the establishment of the republic began thatseries of recurrent trials which overtook the state, in the difficultyof dealing with a multitude of persons who, not coming within thetechnical description of indigenous Romans, were neverthelesspermanently located within Roman jurisdiction. Controversies betweensuch persons, or between such persons and native-born citizens, wouldhave remained without the pale of the remedies provided by Roman law, if the Prætor had not undertaken to decide them, and he must soonhave addressed himself to the more critical disputes which in theextension of commerce arose between Roman subjects and avowedforeigners. The great increase of such cases in the Roman Courts aboutthe period of the first Punic War is marked by the appointment of aspecial Prætor, known subsequently as the Prætor Peregrinus, who gavethem his undivided attention. Meantime, one precaution of the Romanpeople against the revival of oppression, had consisted in obligingevery magistrate whose duties had any tendency to expand their sphere, to publish, on commencing his year of office, an Edict orproclamation, in which he declared the manner in which he intended toadminister his department. The Prætor fell under the rule with othermagistrates; but as it was necessarily impossible to construct eachyear a separate system of principles, he seems to have regularlyrepublished his predecessor's Edict with such additions and changes asthe exigency of the moment or his own views of the law compelled himto introduce. The Prætor's proclamation, thus lengthened by a newportion every year, obtained the name of the Edictum Perpetuum, thatis, the _continuous_ or _unbroken_ edict. The immense length to whichit extended, together perhaps with some distaste for its necessarilydisorderly texture, caused the practice of increasing it to be stoppedin the year of Salvius Julianus, who occupied the magistracy in thereign of the Emperor Hadrian. The edict of that Prætor embracedtherefore the whole body of equity jurisprudence, which it probablydisposed in new and symmetrical order, and the perpetual edict istherefore often cited in Roman law merely as the Edict of Julianus. Perhaps the first inquiry which occurs to an Englishman who considersthe peculiar mechanism of the Edict is, what were the limitations bywhich these extensive powers of the Prætor were restrained? How wasauthority so little definite reconciled with a settled condition ofsociety and of law? The answer can only be supplied by carefulobservation of the conditions under which our own English law isadministered. The Prætor, it should be recollected, was a jurisconsulthimself, or a person entirely in the hands of advisers who werejurisconsults, and it is probable that every Roman lawyer waitedimpatiently for the time when he should fill or control the greatjudicial magistracy. In the interval, his tastes, feelings, prejudices, and degree of enlightenment were inevitably those of hisown order, and the qualifications which he ultimately brought tooffice were those which he had acquired in the practice and study ofhis profession. An English Chancellor goes through precisely the sametraining, and carries to the woolsack the same qualifications. It iscertain when he assumes office that he will have, to some extent, modified the law before he leaves it; but until he has quitted hisseat, and the series of his decisions in the Law Reports has beencompleted, we cannot discover how far he has elucidated or added tothe principles which his predecessors bequeathed to him. The influenceof the Prætor on Roman jurisprudence differed only in respect of theperiod at which its amount was ascertained. As was before stated, hewas in office but for a year, and his decisions rendered during hisyear, though of course irreversible as regarded the litigants, were ofno ulterior value. The most natural moment for declaring the changeshe proposed to effect occurred therefore at his entrance on theprætorship, and hence, when commencing his duties, he did openly andavowedly that which in the end his English representative doesinsensibly and sometimes unconsciously. The checks on this apparentliberty are precisely those imposed on an English judge. Theoreticallythere seems to be hardly any limit to the powers of either of them, but practically the Roman Prætor, no less than the English Chancellor, was kept within the narrowest bounds by the prepossessions imbibedfrom early training and by the strong restraints of professionalopinion, restraints of which the stringency can only be appreciated bythose who have personally experienced them. It may be added that thelines within which movement is permitted, and beyond which there is tobe no travelling, were chalked with as much distinctness in the onecase as in the other. In England the judge follows the analogies ofreported decisions on insulated groups of facts. At Rome, as theintervention of the Prætor was at first dictated by simple concern forthe safety of the state, it is likely that in the earliest times itwas proportioned to the difficulty which it attempted to get rid of. Afterwards, when the taste for principle had been diffused by theResponses, he no doubt used the Edict as the means of giving a widerapplication to those fundamental principles, which he and the otherpractising jurisconsults, his contemporaries, believed themselvesto have detected underlying the law. Latterly he acted wholly underthe influence of Greek philosophical theories, which at once temptedhim to advance and confined him to a particular course of progress. The nature of the measures attributed to Salvius Julianus has beenmuch disputed. Whatever they were, their effects on the Edict aresufficiently plain. It ceased to be extended by annual additions, andhenceforward the equity jurisprudence of Rome was developed by thelabours of a succession of great jurisconsults who fill with theirwritings the interval between the reign of Hadrian and the reign ofAlexander Severus. A fragment of the wonderful system which they builtup survives in the Pandects of Justinian, and supplies evidence thattheir works took the form of treatises on all parts of Roman Law, butchiefly that of commentaries on the Edict. Indeed, whatever be theimmediate subject of a jurisconsult of this epoch, he may always becalled an expositor of Equity. The principles of the Edict had, beforethe epoch of its cessation, made their way into every part of Romanjurisprudence. The Equity of Rome, it should be understood, even whenmost distinct from the Civil Law, was always administered by the sametribunals. The Prætor was the chief equity judge as well as the greatcommon law magistrate, and as soon as the Edict had evolved anequitable rule the Prætor's court began to apply it in place of or bythe side of the old rule of the Civil Law, which was thus directly orindirectly repealed without any express enactment of the legislature. The result, of course, fell considerably short of a complete fusion oflaw and equity, which was not carried out till the reforms ofJustinian. The technical severance of the two elements ofjurisprudence entailed some confusion and some inconvenience, andthere were certain of the stubborner doctrines of the Civil Law withwhich neither the authors nor the expositors of the Edict had venturedto interfere. But at the same time there was no corner of the field ofjurisprudence which was not more or less swept over by the influenceof Equity. It supplied the jurist with all his materials forgeneralisation, with all his methods of interpretation, with hiselucidations of first principles, and with that great mass of limitingrules which are rarely interfered with by the legislator, but whichseriously control the application of every legislative act. The period of jurists ends with Alexander Severus. From Hadrian tothat emperor the improvement of law was carried on, as it is at thepresent moment in most continental countries, partly by approvedcommentaries and partly by direct legislation. But in the reign ofAlexander Severus the power of growth in Roman Equity seems to beexhausted, and the succession of jurisconsults comes to a close. Theremaining history of the Roman law is the history of the imperialconstitutions, and, at the last, of attempts to codify what had nowbecome the unwieldy body of Roman jurisprudence. We have the latestand most celebrated experiment of this kind in the _Corpus Juris_ ofJustinian. It would be wearisome to enter on a detailed comparison or contrast ofEnglish and Roman Equity, but it may be worth while to mention twofeatures which they have in common. The first may be stated asfollows. Each of them tended, and all such systems tend, to exactlythe same state in which the old common law was when Equity firstinterfered with it. A time always comes at which the moral principlesoriginally adopted have been carried out to all their legitimateconsequences, and then the system founded on them becomes as rigid, asunexpansive, and as liable to fall behind moral progress as thesternest code of rules avowedly legal. Such an epoch was reached atRome in the reign of Alexander Severus; after which, though the wholeRoman world was undergoing a moral revolution, the Equity of Romeceased to expand. The same point of legal history was attained inEngland under the chancellorship of Lord Eldon, the first of ourequity judges who, instead of enlarging the jurisprudence of his courtby indirect legislation, devoted himself through life to explainingand harmonising it. If the philosophy of legal history were betterunderstood in England, Lord Eldon's services would be less exaggeratedon the one hand and better appreciated on the other than they appearto be among contemporary lawyers. Other misapprehensions too, whichbear some practical fruit, would perhaps be avoided. It is easily seenby English lawyers that English Equity is a system founded on moralrules; but it is forgotten that these rules are the morality of pastcenturies--not of the present--that they have received nearly as muchapplication as they are capable of, and that though of course they donot differ largely from the ethical creed of our own day, they are notnecessarily on a level with it. The imperfect theories of the subjectwhich are commonly adopted have generated errors of opposite sorts. Many writers of treatises on Equity, struck with the completeness ofthe system in its present state, commit themselves expressly orimplicitly to the paradoxical assertion that the founders of thechancery jurisprudence contemplated its present fixity of form whenthey were settling its first bases. Others, again, complain--and thisis a grievance frequently observed upon in forensic arguments--thatthe moral rules enforced by the Court of Chancery fall short of theethical standard of the present day. They would have each LordChancellor perform precisely the same office for the jurisprudencewhich he finds ready to his hand, which was performed for the oldcommon law by the fathers of English equity. But this is to invert theorder of the agencies by which the improvement of the law is carriedon. Equity has its place and its time; but I have pointed out thatanother instrumentality is ready to succeed it when its energies arespent. Another remarkable characteristic of both English and Roman Equity isthe falsehood of the assumptions upon which the claim of the equitableto superiority over the legal rule is originally defended. Nothing ismore distasteful to men, either as individuals or as masses, than theadmission of their moral progress as a substantive reality. Thisunwillingness shows itself, as regards individuals, in the exaggeratedrespect which is ordinarily paid to the doubtful virtue ofconsistency. The movement of the collective opinion of a whole societyis too palpable to be ignored, and is generally too visible for thebetter to be decried; but there is the greatest disinclination toaccept it as a primary phenomenon, and it is commonly explained as therecovery of a lost perfection--the gradual return to a state fromwhich the race has lapsed. This tendency to look backward instead offorward for the goal of moral progress produced anciently, as we haveseen, on Roman jurisprudence effects the most serious and permanent. The Roman jurisconsults, in order to account for the improvement oftheir jurisprudence by the Prætor, borrowed from Greece the doctrineof a Natural state of man--a Natural society--anterior to theorganisation of commonwealths governed by positive laws. In England, on the other hand, a range of ideas especially congenial to Englishmenof that day, explained the claim of Equity to override the common lawby supposing a general right to superintend the administration ofjustice which was assumed to be vested in the king as a natural resultof his paternal authority. The same view appears in a different and aquainter form in the old doctrine that Equity flowed from the king'sconscience--the improvement which had in fact taken place in the moralstandard of the community being thus referred to an inherent elevationin the moral sense of the sovereign. The growth of the Englishconstitution rendered such a theory unpalatable after a time; but, asthe jurisdiction of the Chancery was then firmly established, it wasnot worth while to devise any formal substitute for it. The theoriesfound in modern manuals of Equity are very various, but all are alikein their untenability. Most of them are modifications of the Romandoctrine of a natural law, which is indeed adopted in tenour by thosewriters who begin a discussion of the jurisdiction of the Court ofChancery by laying down a distinction between natural justice andcivil. CHAPTER IV THE MODERN HISTORY OF THE LAW OF NATURE It will be inferred from what has been said that the theory whichtransformed the Roman jurisprudence had no claim to philosophicalprecision. It involved, in fact, one of those "mixed modes of thought"which are now acknowledged to have characterised all but the highestminds during the infancy of speculation, and which are far fromundiscoverable even in the mental efforts of our own day. The Law ofNature confused the Past and the Present. Logically, it implied astate of Nature which had once been regulated by natural law; yet thejurisconsults do not speak clearly or confidently of the existence ofsuch a state, which indeed is little noticed by the ancients exceptwhere it finds a poetical expression in the fancy of a golden age. Natural law, for all practical purposes, was something belonging tothe present, something entwined with existing institutions, somethingwhich could be distinguished from them by a competent observer. Thetest which separated the ordinances of Nature from the grossingredients with which they were mingled was a sense of simplicity andharmony; yet it was not on account of their simplicity and harmonythat these finer elements were primarily respected, but on the scoreof their descent from the aboriginal reign of Nature. This confusionhas not been successfully explained away by the modern disciples ofthe jurisconsults, and in truth modern speculations on the Law ofNature betray much more indistinctness of perception and are vitiatedby much more hopeless ambiguity of language than the Roman lawyers canbe justly charged with. There are some writers on the subject whoattempt to evade the fundamental difficulty by contending that thecode of Nature exists in the future and is the goal to which all civillaws are moving, but this is to reverse the assumptions on which theold theory rested, or rather perhaps to mix together two inconsistenttheories. The tendency to look not to the past but to the future fortypes of perfection was brought into the world by Christianity. Ancient literature gives few or no hints of a belief that the progressof society is necessarily from worse to better. But the importance of this theory to mankind has been very muchgreater than its philosophical deficiencies would lead us to expect. Indeed, it is not easy to say what turn the history of thought, andtherefore, of the human race, would have taken, if the belief in a lawnatural had not become universal in the ancient world. There are two special dangers to which law, and society which is heldtogether by law, appear to be liable in their infancy. One of them isthat law may be too rapidly developed. This occurred with the codes ofthe more progressive Greek communities, which disembarrassedthemselves with astonishing facility from cumbrous forms of procedureand needless terms of art, and soon ceased to attach any superstitiousvalue to rigid rules and prescriptions. It was not for the ultimateadvantage of mankind that they did so, though the immediate benefitconferred on their citizens may have been considerable. One of therarest qualities of national character is the capacity for applyingand working out the law, as such, at the cost of constant miscarriagesof abstract justice, without at the same time losing the hope or thewish that law may be conformed to a higher ideal. The Greek intellect, with all its nobility and elasticity, was quite unable to confineitself within the strait waistcoat of a legal formula; and, if we mayjudge them by the popular courts of Athens, of whose working we possessaccurate knowledge, the Greek tribunals exhibited the strongesttendency to confound law and fact. The remains of the Orators and theforensic commonplaces preserved by Aristotle in his Treatise onRhetoric, show that questions of pure law were constantly argued onevery consideration which could possibly influence the mind of thejudges. No durable system of jurisprudence could be produced in thisway. A community which never hesitated to relax rules of written lawwhenever they stood in the way of an ideally perfect decision on thefacts of particular cases, would only, if it bequeathed any body ofjudicial principles to posterity, bequeath one consisting of the ideasof right and wrong which happened to be prevalent at the time. Such ajurisprudence would contain no framework to which the more advancedconceptions of subsequent ages could be fitted. It would amount atbest to a philosophy marked with the imperfections of the civilisationunder which it grew up. Few national societies have had their jurisprudence menaced by thispeculiar danger of precocious maturity and untimely disintegration. Itis certainly doubtful whether the Romans were ever seriouslythreatened by it, but at any rate they had adequate protection intheir theory of Natural Law. For the Natural Law of the jurisconsultswas distinctly conceived by them as a system which ought gradually toabsorb civil laws, without superseding them so long as they remainedunrepealed. There was no such impression of its sanctity abroad, thatan appeal to it would be likely to overpower the mind of a judge whowas charged with the superintendence of a particular litigation. Thevalue and serviceableness of the conception arose from its keepingbefore the mental vision a type of perfect law, and from its inspiringthe hope of an indefinite approximation to it, at the same time thatit never tempted the practitioner or the citizen to deny theobligation of existing laws which had not yet been adjusted to thetheory. It is important too to observe that this model system, unlikemany of those which have mocked men's hopes in later days, was notentirely the product of imagination. It was never thought of asfounded on quite untested principles. The notion was that it underlayexisting law and must be looked for through it. Its functions were inshort remedial, not revolutionary or anarchical. And this, unfortunately, is the exact point at which the modern view of a Law ofNature has often ceased to resemble the ancient. The other liability to which the infancy of society is exposed hasprevented or arrested the progress of far the greater part of mankind. The rigidity of primitive law, arising chiefly from its earlyassociation and identification with religion, has chained down themass of the human race to those views of life and conduct which theyentertained at the time when their usages were first consolidated intoa systematic form. There were one or two races exempted by amarvellous fate from this calamity, and grafts from these stocks havefertilised a few modern societies, but it is still true that, over thelarger part of the world, the perfection of law has always beenconsidered as consisting in adherence to the ground plan supposed tohave been marked out by the original legislator. If intellect has insuch cases been exercised on jurisprudence, it has uniformly prideditself on the subtle perversity of the conclusions it could build onancient texts, without discoverable departure from their literaltenour. I know no reason why the law of the Romans should be superiorto the laws of the Hindoos, unless the theory of Natural Law had givenit a type of excellence different from the usual one. In this oneexceptional instance, simplicity and symmetry were kept before theeyes of a society whose influence on mankind was destined to beprodigious from other causes, as the characteristics of an ideal andabsolutely perfect law. It is impossible to overrate the importance toa nation or profession of having a distinct object to aim at in thepursuit of improvement. The secret of Bentham's immense influence inEngland during the past thirty years is his success in placing such anobject before the country. He gave us a clear rule of reform. Englishlawyers of the last century were probably too acute to be blinded bythe paradoxical commonplace that English law was the perfection ofhuman reason, but they acted as if they believed it for want of anyother principle to proceed upon. Bentham made the good of thecommunity take precedence of every other object, and thus gave escapeto a current which had long been trying to find its way outwards. It is not an altogether fanciful comparison if we call the assumptionswe have been describing the ancient counterpart of Benthamism. TheRoman theory guided men's efforts in the same direction as the theoryput into shape by the Englishman; its practical results were notwidely different from those which would have been attained by a sectof law-reformers who maintained a steady pursuit of the general goodof the community. It would be a mistake, however, to suppose it aconscious anticipation of Bentham's principles. The happiness ofmankind is, no doubt, sometimes assigned, both in the popular and inthe legal literature of the Romans, as the proper object of remediallegislation, but it is very remarkable how few and faint are thetestimonies to this principle compared with the tributes which areconstantly offered to the overshadowing claims of the Law of Nature. It was not to anything resembling philanthropy, but to their sense ofsimplicity and harmony--of what they significantly termed"elegance"--that the Roman jurisconsults freely surrenderedthemselves. The coincidence of their labours with those which a moreprecise philosophy would have counselled has been part of the goodfortune of mankind. Turning to the modern history of the law of nature, we find it easierto convince ourselves of the vastness of its influence than topronounce confidently whether that influence has been exerted for goodor for evil. The doctrines and institutions which may be attributed toit are the material of some of the most violent controversies debatedin our time, as will be seen when it is stated that the theory ofNatural Law is the source of almost all the special ideas as to law, politics, and society which France during the last hundred years hasbeen the instrument of diffusing over the western world. The partplayed by jurists in French history, and the sphere of juralconceptions in French thought, have always been remarkably large. Itwas not indeed in France, but in Italy, that the juridical science ofmodern Europe took its rise, but of the schools founded by emissariesof the Italian universities in all parts of the continent, andattempted (though vainly) to be set up in our island, that establishedin France produced the greatest effect on the fortunes of the country. The lawyers of France immediately formed a strict alliance with thekings of the house of Capet, and it was as much through theirassertions of royal prerogative, and through their interpretations ofthe rules of feudal succession, as by the power of the sword, that theFrench monarchy at last grew together out of the agglomeration ofprovinces and dependencies. The enormous advantage which theirunderstanding with the lawyers conferred on the French kings in theprosecution of their struggle with the great feudatories, thearistocracy, and the church, can only be appreciated if we take intoaccount the ideas which prevailed in Europe far down into the middleages. There was, in the first place, a great enthusiasm forgeneralisation and a curious admiration for all general propositions, and consequently, in the field of law, an involuntary reverence forevery general formula which seemed to embrace and sum up a number ofthe insulated rules which were practised as usages in variouslocalities. Such general formulas it was, of course, not difficult forpractitioners familiar with the Corpus Juris or the Glosses to supplyin almost any quantity. There was, however, another cause which addedyet more considerably to the lawyers' power. At the period of which weare speaking, there was universal vagueness of ideas as to the degreeand nature of the authority residing in written texts of law. For themost part, the peremptory preface, _Ita scriptum est_, seems to havebeen sufficient to silence all objections. Where a mind of our own daywould jealously scrutinise the formula which had been quoted, wouldinquire its source, and would (if necessary) deny that the body of lawto which it belonged had any authority to supersede local customs, theelder jurist would not probably have ventured to do more than questionthe applicability of the rule, or at best cite some counterproposition from the Pandects or the Canon Law. It is extremelynecessary to bear in mind the uncertainty of men's notions on thismost important side of juridical controversies, not only because ithelps to explain the weight which the lawyers threw into themonarchical scale, but on account of the light which it sheds onseveral curious historical problems. The motives of the author of theForged Decretals and his extraordinary success are rendered moreintelligible by it. And, to take a phenomenon of smaller interest, itassists us, though only partially, to understand the plagiarisms ofBracton. That an English writer of the time of Henry III. Should havebeen able to put off on his countrymen as a compendium of pure Englishlaw a treatise of which the entire form and a third of the contentswere directly borrowed from the Corpus Juris, and that he should haveventured on this experiment in a country where the systematic study ofthe Roman law was formally proscribed, will always be among the mosthopeless enigmas in the history of jurisprudence; but still it issomething to lessen our surprise when we comprehend the state ofopinion 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 supremacyto a successful close, an epoch which may be placed roughly at theaccession of the branch of Valois-Angoulême to the throne, thesituation of the French jurists was peculiar and continued to be sodown to the outbreak of the revolution. On the one hand, they formedthe best instructed and nearly the most powerful class in the nation. They had made good their footing as a privileged order by the side ofthe feudal aristocracy, and they had assured their influence by anorganisation which distributed their profession over France in greatchartered corporations possessing large defined powers and stilllarger indefinite claims. In all the qualities of the advocate, thejudge, and the legislator, they far excelled their compeers throughoutEurope. Their juridical tact, their ease of expression, their finesense of analogy and harmony, and (if they may be judged by thehighest names among them) their passionate devotion to theirconceptions of justice, were as remarkable as the singular variety oftalent which they included, a variety covering the whole groundbetween the opposite poles of Cujas and Montesquieu, of D'Aguesseauand Dumoulin. But, on the other hand, the system of laws which theyhad to administer stood in striking contrast with the habits of mindwhich they had cultivated. The France which had been in great partconstituted by their efforts was smitten with the curse of ananomalous and dissonant jurisprudence beyond every other country inEurope. One great division ran through the country and separated itinto _Pays du Droit Ecrit_ and _Pays du Droit Coutumier_, the firstacknowledging the written Roman law as the basis of theirjurisprudence, the last admitting it only so far as it suppliedgeneral forms of expression, and courses of juridical reasoning whichwere reconcileable with the local usages. The sections thus formedwere again variously subdivided. In the _Pays du Droit Coutumier_province differed from province, county from county, municipality frommunicipality, in the nature of its customs. In the _Pays du DroitEcrit_ the stratum of feudal rules which overlay the Roman law was ofthe most miscellaneous composition. No such confusion as this everexisted in England. In Germany it did exist, but was too much inharmony with the deep political and religious divisions of the countryto be lamented or even felt. It was the special peculiarity of Francethat an extraordinary diversity of laws continued without sensiblealteration while the central authority of the monarchy was constantlystrengthening itself, while rapid approaches were being made tocomplete administrative unity, and while a fervid national spirit hadbeen developed among the people. The contrast was one which fructifiedin many serious results, and among them we must rank the effect whichit produced on the minds of the French lawyers. Their speculativeopinions and their intellectual bias were in the strongest oppositionto their interests and professional habits. With the keenest sense andthe fullest recognition of those perfections of jurisprudence whichconsist in simplicity and uniformity, they believed, or seemed tobelieve, that the vices which actually infested French law wereineradicable; and in practice they often resisted the reformation ofabuses with an obstinacy which was not shown by many among their lessenlightened countrymen. But there was a way to reconcile thesecontradictions. 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, betweenburgess and peasant; it gave the most exalted place to lucidity, simplicity and system; but it committed its devotees to no specificimprovement, and did not directly threaten any venerable or lucrativetechnicality. Natural law may be said to have become the common law ofFrance, or, at all events, the admission of its dignity and claims wasthe one tenet which all French practitioners alike subscribed to. Thelanguage of the præ-revolutionary jurists in its eulogy is singularlyunqualified, and it is remarkable that the writers on the Customs, whooften made it their duty to speak disparagingly of the pure Roman law, speak even more fervidly of Nature and her rules than the civilianswho professed an exclusive respect for the Digest and the Code. Dumoulin, the highest of all authorities on old French Customary Law, has some extravagant passages on the Law of Nature; and his panegyricshave a peculiar rhetorical turn which indicated a considerabledeparture from the caution of the Roman jurisconsults. The hypothesisof a Natural Law had become not so much a theory guiding practice asan article of speculative faith, and accordingly we shall find that, in the transformation which it more recently underwent, its weakestparts rose to the level of its strongest in the esteem of itssupporters. The eighteenth century was half over when the most critical period inthe history of Natural Law was reached. Had the discussion of thetheory and of its consequences continued to be exclusively theemployment of the legal profession, there would possibly have been anabatement of the respect which it commanded; for by this time the_Esprit des Lois_ had appeared. Bearing in some exaggerations themarks of the excessive violence with which its author's mind hadrecoiled from assumptions usually suffered to pass without scrutiny, yet showing in some ambiguities the traces of a desire to compromisewith existing prejudice, the book of Montesquieu, with all itsdefects, still proceeded on that Historical Method before which theLaw of Nature has never maintained its footing for an instant. Itsinfluence on thought ought to have been as great as its generalpopularity; but, in fact, it was never allowed time to put it forth, for the counter-hypothesis which it seemed destined to destroy passedsuddenly from the forum to the street, and became the key-note ofcontroversies far more exciting than are ever agitated in the courtsor the schools. The person who launched it on its new career was thatremarkable man who, without learning, with few virtues, and with nostrength of character, has nevertheless stamped himself ineffaceablyon history by the force of a vivid imagination, and by the help of agenuine and burning love for his fellow-men, for which much willalways have to be forgiven him. We have never seen in our owngeneration--indeed the world has not seen more than once or twice inall the course of history--a literature which has exercised suchprodigious influence over the minds of men, over every cast and shadeof intellect, as that which emanated from Rousseau between 1749 and1762. It was the first attempt to re-erect the edifice of human beliefafter the purely iconoclastic efforts commenced by Bayle, and in partby our own Locke, and consummated by Voltaire; and besides thesuperiority which every constructive effort will always enjoy over onethat is merely destructive, it possessed the immense advantage ofappearing amid an all but universal scepticism as to the soundness ofall foregone knowledge in matters speculative. Now, in all thespeculations of Rousseau, the central figure, whether arrayed in anEnglish dress as the signatory of a social compact, or simply strippednaked of all historical qualities, is uniformly Man, in a supposedstate of nature. Every law or institution which would misbeseem thisimaginary being under these ideal circumstances is to be condemned ashaving lapsed from an original perfection; every transformation ofsociety which would give it a closer resemblance to the world overwhich the creature of Nature reigned, is admirable and worthy to beeffected at any apparent cost. The theory is still that of the Romanlawyers, for in the phantasmagoria with which the Natural Condition ispeopled, every feature and characteristic eludes the mind except thesimplicity and harmony which possessed such charms for thejurisconsult; but the theory is, as it were, turned upside down. It isnot the Law of Nature, but the State of Nature, which is now theprimary subject of contemplation. The Roman had conceived that bycareful observation of existing institutions parts of them could besingled out which either exhibited already, or could by judiciouspurification be made to exhibit, the vestiges of that reign of naturewhose reality he faintly affirmed. Rousseau's belief was that aperfect social order could be evolved from the unassistedconsideration of the natural state, a social order wholly irrespectiveof the actual condition of the world and wholly unlike it. The greatdifference between the views is that one bitterly and broadly condemnsthe present for its unlikeness to the ideal past; while the other, assuming the present to be as necessary as the past, does not affectto disregard or censure it. It is not worth our while to analyse withany particularity that philosophy of politics, art, education, ethics, and social relation which was constructed on the basis of a state ofnature. It still possesses singular fascination for the looserthinkers of every country, and is no doubt the parent, more or lessremote, of almost all the prepossessions which impede the employmentof the Historical Method of inquiry, but its discredit with the higherminds of our day is deep enough to astonish those who are familiarwith the extraordinary vitality of speculative error. Perhaps thequestion most frequently asked nowadays is not what is the value ofthese opinions, but what were the causes which gave them suchovershadowing prominence a hundred years ago. The answer is, Iconceive, a simple one. The study which in the last century would besthave corrected the misapprehensions into which an exclusive attentionto legal antiquities is apt to betray was the study of religion. ButGreek religion, as then understood, was dissipated in imaginativemyths. The Oriental religions, if noticed at all, appeared to be lostin vain cosmogonies. There was but one body of primitive records whichwas worth studying--the early history of the Jews. But resort to thiswas prevented by the prejudices of the time. One of the fewcharacteristics which the school of Rousseau had in common with theschool of Voltaire was an utter disdain of all religious antiquities;and, more than all, of those of the Hebrew race. It is well known thatit was a point of honour with the reasoners of that day to assume notmerely that the institutions called after Moses were not divinelydictated, nor even that they were codified at a later date than thatattributed to them, but that they and the entire Pentateuch were agratuitous forgery, executed after the return from the Captivity. Debarred, therefore, from one chief security against speculativedelusion, the philosophers of France, in their eagerness to escapefrom what they deemed a superstition of the priests, flung themselvesheadlong into a superstition of the lawyers. But though the philosophy founded on the hypothesis of a state ofnature has fallen low in general esteem, in so far as it is lookedupon under its coarser and more palpable aspect, it does not followthat in its subtler disguises it has lost plausibility, popularity, orpower. I believe, as I have said, that it is still the greatantagonist of the Historical Method; and whenever (religiousobjections apart) any mind is seen to resist or contemn that mode ofinvestigation, it will generally be found under the influence of aprejudice or vicious bias traceable to a conscious or unconsciousreliance on a non-historic, natural, condition of society or theindividual. It is chiefly, however, by allying themselves withpolitical and social tendencies that the doctrines of Nature and herlaw have preserved their energy. Some of these tendencies they havestimulated, others they have actually created, to a great number theyhave given expression and form. They visibly enter largely into theideas which constantly radiate from France over the civilised world, and thus become part of the general body of thought by which itscivilisation is modified. The value of the influence which they thusexercise over the fortunes of the race is of course one of the pointswhich our age debates most warmly, and it is beside the purpose ofthis treatise to discuss it. Looking back, however, to the period atwhich the theory of the state of nature acquired the maximum ofpolitical importance, there are few who will deny that it helped mostpowerfully to bring about the grosser disappointments of which thefirst French Revolution was fertile. It gave birth, or intensestimulus, to the vices of mental habit all but universal at the time, disdain of positive law, impatience of experience, and the preferenceof _à priori_ to all other reasoning. In proportion too as thisphilosophy fixes its grasp on minds which have thought less thanothers and fortified themselves with smaller observation, its tendencyis to become distinctly anarchical. It is surprising to note how manyof the _Sophismes Anarchiques_ which Dumont published for Bentham, andwhich embody Bentham's exposure of errors distinctively French, arederived from the Roman hypothesis in its French transformation, andare unintelligible unless referred to it. On this point too it is acurious exercise to consult the _Moniteur_ during the principal erasof the Revolution. The appeals to the Law and State of Nature becomethicker as the times grow darker. They are comparatively rare in theConstituent Assembly; they are much more frequent in the Legislative;in the Convention, amid the din of debate on conspiracy and war, theyare perpetual. There is a single example which very strikingly illustrates theeffects of the theory of natural law on modern society, and indicateshow very far are those effects from being exhausted. There cannot, Iconceive, be any question that to the assumption of a Law Natural weowe the doctrine of the fundamental equality of human beings. That"all men are equal" is one of a large number of legal propositionswhich, in progress of time, have become political. The Romanjurisconsults of the Antonine era lay down that "omnes homines naturâæquales sunt, " but in their eyes this is a strictly juridical axiom. They intend to affirm that, under the hypothetical Law of Nature, andin so far as positive law approximates to it, the arbitrarydistinctions which the Roman Civil Law maintained between classes ofpersons cease to have a legal existence. The rule was one ofconsiderable importance to the Roman practitioner, who required to bereminded that, wherever Roman jurisprudence was assumed to conformitself exactly to the code of Nature, there was no difference in thecontemplation of the Roman tribunals between citizen and foreigner, between freeman and slave, between Agnate and Cognate. Thejurisconsults who thus expressed themselves most certainly neverintended to censure the social arrangements under which civil law fellsomewhat short of its speculative type; nor did they apparentlybelieve that the world would ever see human society completelyassimilated to the economy of nature. But when the doctrine of humanequality makes its appearance in a modern dress it has evidentlyclothed itself with a new shade of meaning. Where the Romanjurisconsult had written "æquales sunt, " meaning exactly what he said, the modern civilian wrote "all men are equal" in the sense of "all menought to be equal. " The peculiar Roman idea that natural law coexistedwith civil law and gradually absorbed it, had evidently been lostsight of, or had become unintelligible, and the words which had atmost conveyed a theory concerning the origin, composition, anddevelopment of human institutions, were beginning to express the senseof a great standing wrong suffered by mankind. As early as thebeginning of the fourteenth century, the current language concerningthe birth-state of men, though visibly intended to be identical withthat of Ulpian and his contemporaries, has assumed an altogetherdifferent form and meaning. The preamble to the celebrated ordinanceof King Louis Hutin enfranchising the serfs of the royal domains wouldhave sounded strangely to Roman ears. "Whereas, according to naturallaw, everybody ought to be born free; and by some usages and customswhich, from long antiquity, have been introduced and kept until now inour realm, and peradventure by reason of the misdeeds of theirpredecessors, many persons of our common people have fallen intoservitude, therefore, We, etc. " This is the enunciation not of a legalrule but of a political dogma; and from this time the equality of menis spoken of by the French lawyers just as if it were a politicaltruth which happened to have been preserved among the archives oftheir science. Like all other deductions from the hypothesis of a LawNatural, and like the belief itself in a Law of Nature, it waslanguidly assented to and suffered to have little influence on opinionand practice until it passed out of the possession of the lawyers intothat of the literary men of the eighteenth century and of the publicwhich sat at their feet. With them it became the most distinct tenetof their creed, and was even regarded as a summary of all the others. It is probable, however, that the power which it ultimately acquiredover the events of 1789 was not entirely owing to its popularity inFrance, 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 chieflyfrom that of their English contemporaries in including much whichcould only have been derived from the legal literature of continentalEurope. A very few glances at the writings of Jefferson will show howstrongly his mind was affected by the semi-juridical, semi-popularopinions which were fashionable in France, and we cannot doubt that itwas sympathy with the peculiar ideas of the French jurists which ledhim and the other colonial lawyers who guided the course of events inAmerica to join the specially French assumption that "all men are bornequal" with the assumption, more familiar to Englishmen, that "all menare born free, " in the very first lines of their Declaration ofIndependence. The passage was one of great importance to the historyof the doctrine before us. The American lawyers, in thus prominentlyand emphatically affirming the fundamental equality of human beings, gave an impulse to political movements in their own country, and in aless degree in Great Britain, which is far from having yet spentitself; but besides this they returned the dogma they had adopted toits home in France, endowed with vastly greater energy and enjoyingmuch greater claims on general reception and respect. Even the morecautious politicians of the first Constituent Assembly repeatedUlpian's proposition as if it at once commended itself to theinstincts and intuitions of mankind; and of all the "principles of1789" it is the one which has been least strenuously assailed, whichhas most thoroughly leavened modern opinion, and which promises tomodify most deeply the constitution of societies and the politics ofstates. The grandest function of the Law of Nature was discharged in givingbirth to modern International Law and to the modern Law of War, butthis part of its effects must here be dismissed with considerationvery unequal to its importance. Among the postulates which form the foundation of International Law, or of so much of it as retains the figure which it received from itsoriginal architects, there are two or three of pre-eminent importance. The first of all is expressed in the position that there is adeterminable Law of Nature. Grotius and his successors took theassumption directly from the Romans, but they differed widely from theRoman jurisconsults and from each other in their ideas as to the modeof determination. The ambition of almost every Publicist who hasflourished since the revival of letters has been to provide new andmore manageable definitions of Nature and of her law, and it isindisputable that the conception in passing through the long series ofwriters on Public Law has gathered round it a large accretion, consisting of fragments of ideas derived from nearly every theory ofethics which has in its turn taken possession of the schools. Yet itis a remarkable proof of the essentially historical character of theconception that, after all the efforts which have been made to evolvethe code of nature from the necessary characteristics of the naturalstate, so much of the result is just what it would have been if menhad been satisfied to adopt the dicta of the Roman lawyers withoutquestioning or reviewing them. Setting aside the Conventional orTreaty Law of Nations, it is surprising how large a part of the systemis made up of pure Roman law. Wherever there is a doctrine of thejurisconsults affirmed by them to be in harmony with the Jus Gentium, the publicists have found a reason for borrowing it, however plainlyit may bear the marks of a distinctively Roman origin. We may observetoo that the derivative theories are afflicted with the weakness ofthe primary notion. In the majority of the Publicists, the mode ofthought is still "mixed. " In studying these writers, the greatdifficulty is always to discover whether they are discussing law ormorality--whether the state of international relations they describeis actual or ideal--whether they lay down that which is, or thatwhich, in their opinion, ought to be. The assumption that Natural Law is binding on states _inter se_ is thenext in rank of those which underlie International Law. A series ofassertions or admissions of this principle may be traced up to thevery infancy of modern juridical science, and at first sight it seemsa direct inference from the teaching of the Romans. The civilcondition of society being distinguished from the natural by the factthat in the first there is a distinct author of law, while in the lastthere is none, it appears as if the moment a number of _units_ wereacknowledged to obey no common sovereign or political superior theywere thrown back on the ulterior behests of the Law Natural. Statesare such units; the hypothesis of their independence excludes thenotion of a common lawgiver, and draws with it, therefore, accordingto a certain range of ideas, the notion of subjection to the primevalorder of nature. The alternative is to consider independentcommunities as not related to each other by any law, but thiscondition of lawlessness is exactly the vacuum which the Nature of thejurisconsults abhorred. There is certainly apparent reason forthinking that if the mind of a Roman lawyer rested on any sphere fromwhich civil law was banished, it would instantly fill the void withthe ordinances of Nature. It is never safe, however, to assume thatconclusions, however certain and immediate in our own eyes, wereactually drawn at any period of history. No passage has ever beenadduced from the remains of Roman law which, in my judgment, provesthe jurisconsults to have believed natural law to have obligatoryforce between independent commonwealths; and we cannot but see that tocitizens of the Roman empire who regarded their sovereign's dominionsas conterminous with civilisation, the equal subjection of states tothe Law of Nature, if contemplated at all, must have seemed at most anextreme result of curious speculation. The truth appears to be thatmodern International Law, undoubted as is its descent from Roman law, is only connected with it by an irregular filiation. The early moderninterpreters of the jurisprudence of Rome, misconceiving the meaningof Jus Gentium, assumed without hesitation that the Romans hadbequeathed to them a system of rules for the adjustment ofinternational transactions. This "Law of Nations" was at first anauthority which had formidable competitors to strive with, and thecondition of Europe was long such as to preclude its universalreception. Gradually, however, the western world arranged itself in aform more favourable to the theory of the civilians; circumstancesdestroyed the credit of rival doctrines; and at last, at a peculiarlyfelicitous conjuncture, Ayala and Grotius were able to obtain for itthe enthusiastic assent of Europe, an assent which has been over andover again renewed in every variety of solemn engagement. The greatmen to whom its triumph is chiefly owing attempted, it need scarcelybe said, to place it on an entirely new basis, and it isunquestionable that in the course of this displacement they alteredmuch of its structure, though far less of it than is commonlysupposed. Having adopted from the Antonine jurisconsults the positionthat the Jus Gentium and the Jus Naturæ were identical, Grotius, withhis immediate predecessors and his immediate successors, attributed tothe Law of Nature an authority which would never perhaps have beenclaimed for it, if "Law of Nations" had not in that age been anambiguous expression. They laid down unreservedly that Natural Law isthe code of states, and thus put in operation a process which hascontinued almost down to our own day, the process of engrafting on theinternational system rules which are supposed to have been evolvedfrom the unassisted contemplation of the conception of Nature. Thereis too one consequence of immense practical importance to mankindwhich, though not unknown during the early modern history of Europe, was never clearly or universally acknowledged till the doctrines ofthe Grotian school had prevailed. If the society of nations isgoverned by Natural Law, the atoms which compose it must be absolutelyequal. Men under the sceptre of Nature are all equal, and accordinglycommonwealths are equal if the international state be one of nature. The proposition that independent communities, however different insize and power, are all equal in the view of the law of nations, haslargely contributed to the happiness of mankind, though it isconstantly threatened by the political tendencies of each successiveage. It is a doctrine which probably would never have obtained asecure footing at all if International Law had not been entirelyderived from the majestic claims of Nature by the Publicists who wroteafter the revival of letters. On the whole, however, it is astonishing, as I have observed before, how small a proportion the additions made to International Law sinceGrotius's day bear to the ingredients which have been simply takenfrom the most ancient stratum of the Roman Jus Gentium. Acquisition ofterritory has always been the great spur of national ambition, and therules which govern this acquisition, together with the rules whichmoderate the wars in which it too frequently results, are merelytranscribed from the part of the Roman law which treats of the modesof acquiring property _jure gentium_. These modes of acquisition wereobtained by the elder jurisconsults, as I have attempted to explain, by abstracting a common ingredient from the usages observed to prevailamong the various tribes surrounding Rome; and, having been classed onaccount of their origin in the "law common to all nations, " they werethought by the later lawyers to fit in, on the score of theirsimplicity, with the more recent conception of a Law Natural. Theythus made their way into the modern Law of Nations, and the result isthat those parts of the international system which refer to_dominion_, its nature, its limitations, the modes of acquiring andsecuring it, are pure Roman Property Law--so much, that is to say, ofthe Roman Law of Property as the Antonine jurisconsults imagined toexhibit a certain congruity with the natural state. In order thatthese chapters of International Law may be capable of application, itis necessary that sovereigns should be related to each other like themembers of a group of Roman proprietors. This is another of thepostulates which lie at the threshold of the International Code, andit is also one which could not possibly have been subscribed to duringthe first centuries of modern European history. It is resolvable intothe double proposition that "sovereignty is territorial, " _i. E. _ thatit is always associated with the proprietorship of a limited portionof the earth's surface, and that "sovereigns _inter se_ are to bedeemed not _paramount_, but _absolute_, owners of the state'sterritory. " Many contemporary writers on International Law tacitly assume that thedoctrines of their system, founded on principles of equity and commonsense, were capable of being readily reasoned out in every stage ofmodern civilisation. But this assumption, while it conceals some realdefects of the international theory, is altogether untenable, so faras regards a large part of modern history. It is not true that theauthority of the Jus Gentium in the concerns of nations was alwaysuncontradicted; on the contrary, it had to struggle long against theclaims of several competing systems. It is again not true that theterritorial character of sovereignty was always recognised, for longafter the dissolution of the Roman dominion the minds of men wereunder the empire of ideas irreconcileable with such a conception. Anold order of things, and of views founded on it, had to decay--a newEurope, and an apparatus of new notions congenial to it, had to springup--before two of the chiefest postulates of International Law couldbe universally conceded. It is a consideration well worthy to be kept in view, that during alarge part of what we usually term modern history no such conceptionwas entertained as that of "_territorial sovereignty_. " Sovereigntywas not associated with dominion over a portion or subdivision of theearth. The world had lain for so many centuries under the shadow ofImperial Rome as to have forgotten that distribution of the vastspaces comprised in the empire which had once parcelled them out intoa number of independent commonwealths, claiming immunity fromextrinsic interference, and pretending to equality of national rights. After the subsidence of the barbarian irruptions, the notion ofsovereignty that prevailed seems to have been twofold. On the one handit assumed the form of what may be called "_tribe_-sovereignty. " TheFranks, the Burgundians, the Vandals, the Lombards, and Visigoths weremasters, of course, of the territories which they occupied, and towhich some of them have given a geographical appellation; but theybased no claim of right upon the fact of territorial possession, andindeed attached no importance to it whatever. They appear to haveretained the traditions which they brought with them from the forestand the steppe, and to have still been in their own view a patriarchalsociety, a nomad horde, merely encamped for the time upon the soilwhich afforded them sustenance. Part of Transalpine Gaul, with part ofGermany, had now become the country _de facto_ occupied by theFranks--it was France; but the Merovingian line of chieftains, thedescendants of Clovis, were not Kings of France, they were Kings ofthe Franks. The alternative to this peculiar notion of sovereigntyappears to have been--and this is the important point--the idea ofuniversal dominion. The moment a monarch departed from the specialrelation of chief to clansmen, and became solicitous, for purposes ofhis own, to invest himself with a novel form of sovereignty, the onlyprecedent which suggested itself for his adoption was the dominationof the Emperors of Rome. To parody a common quotation, he became "_autCæsar aut nullus_. " Either he pretended to the full prerogative of theByzantine Emperor, or he had no political status whatever. In our ownage, when a new dynasty is desirous of obliterating the prescriptivetitle of a deposed line of sovereigns, it takes its designation fromthe _people_, instead of the _territory_. Thus we have Emperors andKings of the French, and a King of the Belgians. At the period ofwhich we have been speaking, under similar circumstances a differentalternative presented itself. The Chieftain who would no longer callhimself King of the tribe must claim to be Emperor of the world. Thus, when the hereditary Mayors of the Palace had ceased to compromisewith the monarchs they had long since virtually dethroned, they soonbecame unwilling to call themselves Kings of the Franks, a title whichbelonged to the displaced Merovings; but they could not stylethemselves Kings of France, for such a designation, though apparentlynot unknown, was not a title of dignity. Accordingly they came forwardas aspirants to universal empire. Their motive has been greatlymisapprehended. It has been taken for granted by recent French writersthat Charlemagne was far before his age, quite as much in thecharacter of his designs as in the energy with which he prosecutedthem. Whether it be true or not that anybody is at any time before hisage, it is certainly true that Charlemagne, in aiming at an unlimiteddominion, was emphatically taking the only course which thecharacteristic ideas of his age permitted him to follow. Of hisintellectual eminence there cannot be a question, but it is proved byhis acts and not by his theory. These singularities of view were not altered on the partition of theinheritance of Charlemagne among his three grandsons. Charles theBald, Lewis, and Lothair were still theoretically--if it be proper touse the word--Emperors of Rome. Just as the Cæsars of the Eastern andWestern Empires had each been _de jure_ emperor of the whole world, with _de facto_ control over half of it, so the three Carlovingiansappear to have considered their power as limited, but their title asunqualified. The same speculative universality of sovereigntycontinued to be associated with the Imperial throne after the seconddivision on the death of Charles the Fat, and, indeed, was neverthoroughly dissociated from it so long as the empire of Germanylasted. Territorial sovereignty--the view which connects sovereigntywith the possession of a limited portion of the earth's surface--wasdistinctly an offshoot, though a tardy one, of _feudalism_. This mighthave been expected _à priori_, for it was feudalism which for thefirst time linked personal duties, and by consequence personal rights, to the ownership of land. Whatever be the proper view of its originand legal nature, the best mode of vividly picturing to ourselves thefeudal organisation is to begin with the basis, to consider therelation of the tenant to the patch of soil which created and limitedhis services--and then to mount up, through narrowing circles ofsuper-feudation, till we approximate to the apex of the system. Where that summit exactly was during the later portion of the darkages it is not easy to decide. Probably, wherever the conception oftribe sovereignty had really decayed, the topmost point was alwaysassigned to the supposed successor of the Cæsars of the West. Butbefore long, when the actual sphere of Imperial authority hadimmensely contracted, and when the emperors had concentrated thescanty remains of their power upon Germany and North Italy, thehighest feudal superiors in all the outlying portions of the formerCarlovingian empire found themselves practically without a supremehead. Gradually they habituated themselves to the new situation, andthe fact of immunity put at last out of sight the theory ofdependence; but there are many symptoms that this change was not quiteeasily accomplished; and, indeed, to the impression that in the natureof things there must necessarily be a culminating dominationsomewhere, we may, no doubt, refer the increasing tendency toattribute secular superiority to the See of Rome. The completion ofthe first stage in the revolution of opinion is marked, of course, bythe accession of the Capetian dynasty in France. When the feudalprince of a limited territory surrounding Paris began, from theaccident of his uniting an unusual number of suzerainties in his ownperson, to call himself _King of France_, he became king in quite anew sense, a sovereign standing in the same relation to the soil ofFrance as the baron to his estate, the tenant to his freehold. Theprecedent, however, was as influential as it was novel, and the formof the monarchy in France had visible effects in hastening changeswhich were elsewhere proceeding in the same direction. The kingship ofour Anglo-Saxon regal houses was midway between the chieftainship of atribe and a territorial supremacy; but the superiority of the Normanmonarchs, imitated from that of the King of France, was distinctly aterritorial sovereignty. Every subsequent dominion which wasestablished or consolidated was formed on the later model. Spain, Naples, and the principalities founded on the ruins of municipalfreedom in Italy, were all under rulers whose sovereignty wasterritorial. Few things, I may add, are more curious than the graduallapse of the _Venetians_ from one view to the other. At thecommencement of its foreign conquests, the republic regarded itselfas an antitype of the Roman commonwealth, governing a number ofsubject provinces. Move a century onwards, and you find that it wishesto be looked upon as a corporate sovereign, claiming the rights of afeudal suzerain over its possessions in Italy and the Ægean. During the period through which the popular ideas on the subject ofsovereignty were undergoing this remarkable change, the system whichstood in the place of what we now call International Law, washeterogeneous in form and inconsistent in the principles to which itappealed. Over so much of Europe as was comprised in the Romano-Germanempire, the connection of the confederate states was regulated by thecomplex and as yet incomplete mechanism of the Imperial constitution;and, surprising as it may seem to us, it was a favourite notion ofGerman lawyers that the relations of commonwealths, whether inside oroutside the empire, ought to be regulated not by the _Jus Gentium_, but by the pure Roman jurisprudence, of which Cæsar was still thecentre. This doctrine was less confidently repudiated in the outlyingcountries than we might have supposed antecedently; but, substantially, through the rest of Europe feudal subordinationsfurnished a substitute for a public law; and when those wereundetermined or ambiguous, there lay behind, in theory at least, asupreme regulating force in the authority of the head of the Church. It is certain, however, that both feudal and ecclesiastical influenceswere rapidly decaying during the fifteenth, and even the fourteenthcentury; and if we closely examine the current pretexts of wars, andthe avowed motives of alliances, it will be seen that, step by stepwith the displacement of the old principles, the views afterwardsharmonised and consolidated by Ayala and Grotius were makingconsiderable progress, though it was silent and but slow. Whether thefusion of all the sources of authority would ultimately have evolved asystem of international relations, and whether that system would haveexhibited material differences from the fabric of Grotius, is not nowpossible to decide, for as a matter of fact the Reformationannihilated all its potential elements except one. Beginning inGermany, it divided the princes of the empire by a gulf too broad tobe bridged over by the Imperial supremacy, even if the Imperialsuperior had stood neutral. He, however, was forced to take colourwith the church against the reformers; the Pope was, as a matter ofcourse, in the same predicament; and thus the two authorities to whombelonged the office of mediation between combatants became themselvesthe chiefs of one great faction in the schism of the nations. Feudalism, already enfeebled and discredited as a principle of publicrelations, furnished no bond whatever which was stable enough tocountervail the alliances of religion. In a condition, therefore, ofpublic law which was little less than chaotic, those views of a statesystem to which the Roman jurisconsults were supposed to have giventheir sanction alone remained standing. The shape, the symmetry, andthe prominence which they assumed in the hands of Grotius are known toevery educated man; but the great marvel of the Treatise "De JureBelli et Pacis, " was its rapid, complete, and universal success. Thehorrors of the Thirty Years' War, the boundless terror and pity whichthe unbridled license of the soldiery was exciting, must, no doubt, betaken to explain that success in some measure, but they do not whollyaccount for it. Very little penetration into the ideas of that age isrequired to convince one that if the ground plan of the internationaledifice which was sketched in the great book of Grotius had notappeared to be theoretically perfect, it would have been discarded byjurists and neglected by statesmen and soldiers. It is obvious that the speculative perfection of the Grotian system isintimately connected with that conception of territorial sovereigntywhich we have been discussing. The theory of International Law assumesthat commonwealths are, relatively to each other, in a state ofnature; but the component atoms of a natural society must, by thefundamental assumption, be insulated and independent of each other. Ifthere be a higher power connecting them, however slightly andoccasionally by the claim of common supremacy, the very conception ofa common superior introduces the notion of positive law, and excludesthe idea of a law natural. It follows, therefore, that if theuniversal suzerainty of an Imperial head had been admitted even inbare theory, the labours of Grotius would have been idle. Nor is thisthe only point of junction between modern public law and those viewsof sovereignty of which I have endeavoured to describe thedevelopment. I have said that there are entire departments ofinternational jurisprudence which consist of the Roman Law ofProperty. What then is the inference? It is, that if there had been nosuch change as I have described in the estimate of sovereignty--ifsovereignty had not been associated with the proprietorship of alimited portion of the earth, had not, in other words, becometerritorial--three parts of the Grotian theory would have beenincapable of application. CHAPTER V PRIMITIVE SOCIETY AND ANCIENT LAW The necessity of submitting the subject of jurisprudence to scientifictreatment has never been entirely lost sight of in modern times, andthe essays which the consciousness of this necessity has produced haveproceeded from minds of very various calibre, but there is not muchpresumption, I think, in asserting that what has hitherto stood in theplace of a science has for the most part been a set of guesses, thosevery guesses of the Roman lawyers which were examined in the twopreceding chapters. A series of explicit statements, recognising andadopting these conjectural theories of a natural state, and of asystem of principles congenial to it, has been continued with butbrief interruption from the days of their inventors to our own. Theyappear in the annotations of the Glossators who founded modernjurisprudence, and in the writings of the scholastic jurists whosucceeded them. They are visible in the dogmas of the canonists. Theyare thrust into prominence by those civilians of marvellous erudition, who flourished at the revival of ancient letters. Grotius and hissuccessors invested them not less with brilliancy and plausibilitythan with practical importance. They may be read in the introductorychapters of our own Blackstone, who has transcribed them textuallyfrom Burlamaqui, and wherever the manuals published in the present dayfor the guidance of the student or the practitioner begin with anydiscussion of the first principles of law, it always resolves itselfinto a restatement of the Roman hypothesis. It is however from thedisguises with which these conjectures sometimes clothe themselves, quite as much as from their native form, that we gain an adequate ideaof the subtlety with which they mix themselves in human thought. TheLockeian theory of the origin of Law in a Social Compact scarcelyconceals its Roman derivation, and indeed is only the dress by whichthe ancient views were rendered more attractive to a particulargeneration of the moderns; but on the other hand the theory of Hobbeson the same subject was purposely devised to repudiate the reality ofa law of nature as conceived by the Romans and their disciples. Yetthese two theories, which long divided the reflecting politicians ofEngland into hostile camps, resemble each other strictly in theirfundamental assumption of a non-historic, unverifiable, condition ofthe race. Their authors differed as to the characteristics of thepræ-social state, and as to the nature of the abnormal action by whichmen lifted themselves out of it into that social organisation withwhich alone we are acquainted, but they agreed in thinking that agreat chasm separated man in his primitive condition from man insociety, and this notion we cannot doubt that they borrowed, consciously or unconsciously, from the Romans. If indeed the phenomenaof law be regarded in the way in which these theorists regardedthem--that is, as one vast complex whole--it is not surprising thatthe mind should often evade the task it has set to itself by fallingback on some ingenious conjecture which (plausibly interpreted) willseem to reconcile everything, or else that it should sometimes abjurein despair the labour of systematization. From the theories of jurisprudence which have the same speculativebasis as the Roman doctrine two of much celebrity must be excepted. The first of them is that associated with the great name ofMontesquieu. Though there are some ambiguous expressions in the earlypart of the _Esprit des Lois_, which seem to show its writer'sunwillingness to break quite openly with the views hitherto popular, the general drift of the book is certainly to indicate a verydifferent conception of its subject from any which had beenentertained before. It has often been noticed that, amidst the vastvariety of examples which, in its immense width of survey, it sweepstogether from supposed systems of jurisprudence, there is an evidentanxiety to thrust into especial prominence those manners andinstitutions which astonish the civilised reader by their uncouthness, strangeness, or indecency. The inference constantly suggested is, thatlaws are the creatures of climate, local situation, accident, orimposture--the fruit of any causes except those which appear tooperate with tolerable constancy. Montesquieu seems, in fact, to havelooked on the nature of man as entirely plastic, as passivelyreproducing the impressions, and submitting implicitly to theimpulses, which it receives from without. And here no doubt lies theerror which vitiates his system as a system. He greatly underrates thestability of human nature. He pays little or no regard to theinherited qualities of the race, those qualities which each generationreceives from its predecessors, and transmits but slightly altered tothe generation which follows it. It is quite true, indeed, that nocomplete account can be given of social phenomena, and consequently oflaws, till due allowance has been made for those modifying causeswhich are noticed in the _Esprit des Lois_; but their number and theirforce appear to have been overestimated by Montesquieu. Many of theanomalies which he parades have since been shown to rest on falsereport or erroneous construction, and of those which remain not a fewprove the permanence rather than the variableness of man's nature, since they are relics of older stages of the race which haveobstinately defied the influences that have elsewhere had effect. Thetruth is that the stable part of our mental, moral, and physicalconstitution is the largest part of it, and the resistance it opposesto change is such that, though the variations of human society in aportion of the world are plain enough, they are neither so rapid norso extensive that their amount, character, and general directioncannot be ascertained. An approximation to truth may be all that isattainable with our present knowledge, but there is no reason forthinking that is so remote, or (what is the same thing) that itrequires so much future correction, as to be entirely useless anduninstructive. The other theory which has been adverted to is the historical theoryof Bentham. This theory which is obscurely (and, it might even besaid, timidly) propounded in several parts of Bentham's works is quitedistinct from that analysis of the conception of law which hecommenced in the "Fragment on Government, " and which was more recentlycompleted by Mr. John Austin. The resolution of a law into a commandof a particular nature, imposed under special conditions, does notaffect to do more than protect us against a difficulty--a mostformidable one certainly--of language. The whole question remains openas to the motives of societies in imposing these commands onthemselves, as to the connection of these commands with each other, andthe nature of their dependence on those which preceded them, andwhich they have superseded. Bentham suggests the answer thatsocieties modify, and have always modified, their laws according tomodifications of their views of general expediency. It is difficult tosay that this proposition is false, but it certainly appears to beunfruitful. For that which seems expedient to a society, or rather tothe governing part of it, when it alters a rule of law is surely thesame thing as the object, whatever it may be, which it has in viewwhen it makes the change. Expediency and the greatest good are nothingmore than different names for the impulse which prompts themodification; and when we lay down expediency as the rule of change inlaw or opinion, all we get by the proposition is the substitution ofan express term for a term which is necessarily implied when we saythat a change takes place. There is such wide-spread dissatisfaction with existing theories ofjurisprudence, and so general a conviction that they do not reallysolve the questions they pretend to dispose of, as to justify thesuspicion that some line of inquiry necessary to a perfect result hasbeen incompletely followed or altogether omitted by their authors. Andindeed there is one remarkable omission with which all thesespeculations are chargeable, except perhaps those of Montesquieu. Theytake no account of what law has actually been at epochs remote fromthe particular period at which they made their appearance. Theiroriginators carefully observed the institutions of their own age andcivilisation, and those of other ages and civilisations with whichthey had some degree of intellectual sympathy, but, when they turnedtheir attention to archaic states of society which exhibited muchsuperficial difference from their own, they uniformly ceased toobserve and began guessing. The mistake which they committed istherefore analogous to the error of one who, in investigating the lawsof the material universe, should commence by contemplating theexisting physical world as a whole, instead of beginning with theparticles which are its simplest ingredients. One does not certainlysee why such a scientific solecism should be more defensible injurisprudence than in any other region of thought. It would seemantecedently that we ought to commence with the simplest social formsin a state as near as possible to their rudimentary condition. Inother words, if we followed the course usual in such inquiries, weshould penetrate as far up as we could in the history of primitivesocieties. The phenomena which early societies present us with are noteasy at first to understand, but the difficulty of grappling with thembears no proportion to the perplexities which beset us in consideringthe baffling entanglement of modern social organisation. It is adifficulty arising from their strangeness and uncouthness, not fromtheir number and complexity. One does not readily get over thesurprise which they occasion when looked at from a modern point ofview; but when that is surmounted they are few enough and simpleenough. But even if they gave more trouble than they do, no painswould be wasted in ascertaining the germs out of which has assuredlybeen unfolded every form of moral restraint which controls our actionsand shapes our conduct at the present moment. The rudiments of the social state, so far as they are known to us atall, are known through testimony of three sorts--accounts bycontemporary observers of civilisations less advanced than their own, the records which particular races have preserved concerning theirprimitive history, and ancient law. The first kind of evidence is thebest we could have expected. As societies do not advance concurrently, but at different rates of progress, there have been epochs at whichmen trained to habits of methodical observation have really been in aposition to watch and describe the infancy of mankind. Tacitus madethe most of such an opportunity; but the _Germany_, unlike mostcelebrated classical books, has not induced others to follow theexcellent example set by its author, and the amount of this sort oftestimony which we possess is exceedingly small. The lofty contemptwhich a civilised people entertains for barbarous neighbours hascaused a remarkable negligence in observing them, and thiscarelessness has been aggravated at times by fear, by religiousprejudice, and even by the use of these very terms--civilisation andbarbarism--which convey to most persons the impression of a differencenot merely in degree but in kind. Even the _Germany_ has beensuspected by some critics of sacrificing fidelity to poignancy ofcontrast and picturesqueness of narrative. Other histories too, whichhave been handed down to us among the archives of the people to whoseinfancy they relate, have been thought distorted by the pride of raceor by the religious sentiment of a newer age. It is important then toobserve that these suspicions, whether groundless or rational, do notattach to a great deal of archaic law. Much of the old law which hasdescended to us was preserved merely because it was old. Those whopractised and obeyed it did not pretend to understand it; and in somecases they even ridiculed and despised it. They offered no account ofit except that it had come down to them from their ancestors. If weconfine our attention, then, to those fragments of ancientinstitutions which cannot reasonably be supposed to have been tamperedwith, we are able to gain a clear conception of certain greatcharacteristics of the society to which they originally belonged. Advancing a step further, we can apply our knowledge to systems of lawwhich, like the Code of Menu, are as a whole of suspiciousauthenticity; and, using the key we have obtained, we are in aposition to discriminate those portions of them which are trulyarchaic from those which have been affected by the prejudices, interests, or ignorance of the compiler. It will at least beacknowledged that, if the materials for this process are sufficient, and if the comparisons be accurately executed, the methods followedare as little objectionable as those which have led to such surprisingresults in comparative philology. The effect of the evidence derived from comparative jurisprudence isto establish that view of the primeval condition of the human racewhich is known as the Patriarchal Theory. There is no doubt, ofcourse, that this theory was originally based on the Scripturalhistory of the Hebrew patriarchs in Lower Asia; but, as has beenexplained already, its connection with Scripture rather militated thanotherwise against its reception as a complete theory, since themajority of the inquirers who till recently addressed themselves withmost earnestness to the colligation of social phenomena, were eitherinfluenced by the strongest prejudice against Hebrew antiquities or bythe strongest desire to construct their system without the assistanceof religious records. Even now there is perhaps a disposition toundervalue these accounts, or rather to decline generalising fromthem, as forming part of the traditions of a Semitic people. It is tobe noted, however, that the legal testimony comes nearly exclusivelyfrom the institutions of societies belonging to the Indo-Europeanstock, the Romans, Hindoos, and Sclavonians supplying the greater partof it; and indeed the 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 wasoriginally organised on the patriarchal model. The chief lineaments ofsuch a society, as collected from the early chapters in Genesis, Ineed not attempt to depict with any minuteness, both because they arefamiliar to most of us from our earliest childhood, and because, fromthe interest once attaching to the controversy which takes its namefrom the debate between Locke and Filmer, they fill a whole chapter, though not a very profitable one, in English literature. The pointswhich lie on the surface of the history are these:--The eldest maleparent--the eldest ascendant--is absolutely supreme in his household. His dominion extends to life and death, and is as unqualified over hischildren and their houses as over his slaves; indeed the relations ofsonship and serfdom appear to differ in little beyond the highercapacity which the child in blood possesses of becoming one day thehead of a family himself. The flocks and herds of the children are theflocks and herds of the father, and the possessions of the parent, which he holds in a representative rather than in a proprietarycharacter, are equally divided at his death among his descendants inthe first degree, the eldest son sometimes receiving a double shareunder the name of birthright, but more generally endowed with nohereditary advantage beyond an honorary precedence. A less obviousinference from the Scriptural accounts is that they seem to plant uson the traces of the breach which is first effected in the empire ofthe parent. The families of Jacob and Esau separate and form twonations; but the families of Jacob's children hold together and becomea people. This looks like the immature germ of a state orcommonwealth, and of an order of rights superior to the claims offamily relation. If I were attempting for the more special purposes of the jurist toexpress compendiously the characteristics of the situation in whichmankind disclose themselves at the dawn of their history, I should besatisfied to quote a few verses from the _Odyssee_ of Homer: [Greek: toisin d out agorai boulêphoroi oute themistes. * * * themisteuei de ekastos paidôn êd alochôn, oud allêlôn alegousin. ] "They have neither assemblies for consultation nor _themistes_, butevery one exercises jurisdiction over his wives and his children, andthey pay no regard to one another. " These lines are applied to theCyclops, and it may not perhaps be an altogether fanciful idea when Isuggest that the Cyclops is Homer's type of an alien and less advancedcivilisation; for the almost physical loathing which a primitivecommunity feels for men of widely different manners from its ownusually expresses itself by describing them as monsters, such asgiants, or even (which is almost always the case in Orientalmythology) as demons. However that may be, the verses condense inthemselves the sum of the hints which are given us by legalantiquities. Men are first seen distributed in perfectly insulatedgroups, held together by obedience to the parent. Law is the parent'sword, but it is not yet in the condition of those _themistes_ whichwere analysed in the first chapter of this work. When we go forward tothe state of society in which these early legal conceptions showthemselves as formed, we find that they still partake of the mysteryand spontaneity which must have seemed to characterise a despoticfather's commands, but that at the same time, inasmuch as they proceedfrom a sovereign, they presuppose a union of family groups in somewider organisation. The next question is, what is the nature of thisunion and the degree of intimacy which it involves? It is just herethat archaic law renders us one of the greatest of its services andfills up a gap which otherwise could only have been bridged byconjecture. It is full, in all its provinces, of the clearestindications that society in primitive times was not what it is assumedto be at present, a collection of _individuals_. In fact, and in theview 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 theIndividual. We must be prepared to find in ancient law all theconsequences of this difference. It is so framed as to be adjusted toa system of small independent corporations. It is therefore scanty, because it is supplemented by the despotic commands of the heads ofhouseholds. It is ceremonious, because the transactions to which itpays regard resemble international concerns much more than the quickplay of intercourse between individuals. Above all it has apeculiarity of which the full importance cannot be shown at present. It takes a view of _life_ wholly unlike any which appears in developedjurisprudence. Corporations _never die_, and accordingly primitive lawconsiders the entities with which it deals, _i. E. _ the patriarchal orfamily groups, as perpetual and inextinguishable. This view is closelyallied to the peculiar aspect under which, in very ancient times, moral attributes present themselves. The moral elevation and moraldebasement of the individual appear to be confounded with, orpostponed to, the merits and offences of the group to which theindividual belongs. If the community sins, its guilt is much more thanthe sum of the offences committed by its members; the crime is acorporate act, and extends in its consequences to many more personsthan have shared in its actual perpetration. If, on the other hand, the individual is conspicuously guilty, it is his children, hiskinsfolk, his tribesmen, or his fellow-citizens, who suffer with him, and sometimes for him. It thus happens that the ideas of moralresponsibility and retribution often seem to be more clearly realisedat very ancient than at more advanced periods, for, as the familygroup is immortal, and its liability to punishment indefinite, theprimitive mind is not perplexed by the questions which becometroublesome as soon as the individual is conceived as altogetherseparate from the group. One step in the transition from the ancientand simple view of the matter to the theological or metaphysicalexplanations of later days is marked by the early Greek notion of aninherited curse. The bequest received by his posterity from theoriginal criminal was not a liability to punishment, but a liabilityto the commission of fresh offences which drew with them a condignretribution; and thus the responsibility of the family was reconciledwith the newer phase of thought which limited the consequences ofcrime to the person of the actual delinquent. It would be a very simple explanation of the origin of society if wecould base a general conclusion on the hint furnished us by thescriptural example already adverted to, and could suppose thatcommunities began to exist wherever a family held together instead ofseparating at the death of its patriarchal chieftain. In most of theGreek states and in Rome there long remained the vestiges of anascending series of groups out of which the State was at firstconstituted. The Family, House, and Tribe of the Romans may be takenas the type of them, and they are so described to us that we canscarcely help conceiving them as a system of concentric circles whichhave gradually expanded from the same point. The elementary group isthe Family, connected by common subjection to the highest maleascendant. The aggregation of Families forms the Gens or House. Theaggregation of Houses makes the Tribe. The aggregation of Tribesconstitutes the Commonwealth. Are we at liberty to follow theseindications, and to lay down that the commonwealth is a collection ofpersons united by common descent from the progenitor of an originalfamily? Of this we may at least be certain, that all ancient societiesregarded themselves as having proceeded from one original stock, andeven laboured under an incapacity for comprehending any reason exceptthis for their holding together in political union. The history ofpolitical ideas begins, in fact, with the assumption that kinship inblood is the sole possible ground of community in political functions;nor is there any of those subversions of feeling, which we termemphatically revolutions, so startling and so complete as the changewhich is accomplished when some other principle--such as that, forinstance, of _local contiguity_--establishes itself for the first timeas the basis of common political action. It may be affirmed then ofearly commonwealths that their citizens considered all the groups inwhich they claimed membership to be founded on common lineage. Whatwas obviously true of the Family was believed to be true first of theHouse, next of the Tribe, lastly of the State. And yet we find thatalong with this belief, or, if we may use the word, this theory, eachcommunity preserved records or traditions which distinctly showed thatthe fundamental assumption was false. Whether we look to the Greekstates, or to Rome, or to the Teutonic aristocracies in Ditmarsh whichfurnished Niebuhr with so many valuable illustrations, or to theCeltic clan associations, or to that strange social organisation ofthe Sclavonic Russians and Poles which has only lately attractednotice, everywhere we discover traces of passages in their historywhen men of alien descent were admitted to, and amalgamated with, theoriginal brotherhood. Adverting to Rome singly, we perceive that theprimary group, the Family, was being constantly adulterated by thepractice of adoption, while stories seem to have been always currentrespecting the exotic extraction of one of the original Tribes andconcerning a large addition to the houses made by one of the earlykings. The composition of the state, uniformly assumed to be natural, was nevertheless known to be in great measure artificial. Thisconflict between belief or theory and notorious fact is at first sightextremely perplexing; but what it really illustrates is the efficiencywith which Legal Fictions do their work in the infancy of society. Theearliest and most extensively employed of legal fictions was thatwhich permitted family relations to be created artificially, and thereis none to which I conceive mankind to be more deeply indebted. If ithad never existed, I do not see how any one of the primitive groups, whatever were their nature, could have absorbed another, or on whatterms any two of them could have combined, except those of absolutesuperiority on one side and absolute subjection on the other. Nodoubt, when with our modern ideas we contemplate the union ofindependent communities, we can suggest a hundred modes of carrying itout, the simplest of all being that the individuals comprised in thecoalescing groups shall vote or act together according to localpropinquity; but the idea that a number of persons should exercisepolitical rights in common simply because they happened to live withinthe same topographical limits was utterly strange and monstrous toprimitive antiquity. The expedient which in those times commandedfavour was that the incoming population should _feign themselves_ tobe descended from the same stock as the people on whom they wereengrafted; and it is precisely the good faith of this fiction, and thecloseness with which it seemed to imitate reality, that we cannot nowhope to understand. One circumstance, however, which it is importantto recollect, is that the men who formed the various political groupswere certainly in the habit of meeting together periodically, for thepurpose of acknowledging and consecrating their association by commonsacrifices. Strangers amalgamated with the brotherhood were doubtlessadmitted to these sacrifices; and when that was once done we canbelieve that it seemed equally easy, or not more difficult, toconceive them as sharing in the common lineage. The conclusion thenwhich is suggested by the evidence is, not that all early societieswere formed by descent from the same ancestor, but that all of themwhich had any permanence and solidity either were so descended orassumed that they were. An indefinite number of causes may haveshattered the primitive groups, but wherever their ingredientsrecombined, it was on the model or principle of an association ofkindred. Whatever were the fact, all thought, language, and lawadjusted themselves to the assumption. But though all this seems to meto be established with reference to the communities with whose recordswe are acquainted, the remainder of their history sustains theposition before laid down as to the essentially transient andterminable influence of the most powerful Legal Fictions. At somepoint of time--probably as soon as they felt themselves strong enoughto resist extrinsic pressure--all these states ceased to recruitthemselves by factitious extensions of consanguinity. Theynecessarily, therefore, became Aristocracies, in all cases where afresh population from any cause collected around them which could putin no claim to community of origin. Their sternness in maintaining thecentral principle of a system under which political rights wereattainable on no terms whatever except connection in blood, real orartificial, taught their inferiors another principle, which proved tobe endowed with a far higher measure of vitality. This was theprinciple of _local contiguity_, now recognised everywhere as thecondition of community in political functions. A new set of politicalideas came at once into existence, which, being those of ourselves, our contemporaries, and in great measure of our ancestors, ratherobscure our perception of the older theory which they vanquished anddethroned. The Family then is the type of an archaic society in all themodifications which it was capable of assuming; but the family herespoken of is not exactly the family as understood by a modern. Inorder to reach the ancient conception we must give to our modern ideasan important extension and an important limitation. We must look onthe family as constantly enlarged by the absorption of strangerswithin its circle, and we must try to regard the fiction of adoptionas so closely simulating the reality of kinship that neither law noropinion makes the slightest difference between a real and an adoptiveconnection. On the other hand, the persons theoretically amalgamatedinto a family by their common descent are practically held together bycommon obedience to their highest living ascendant, the father, grandfather, or great-grandfather. The patriarchal authority of achieftain is as necessary an ingredient in the notion of the familygroup as the fact (or assumed fact) of its having sprung from hisloins; and hence we must understand that if there be any persons who, however truly included in the brotherhood by virtue of theirblood-relationship, have nevertheless _de facto_ withdrawn themselvesfrom the empire of its ruler, they are always, in the beginnings oflaw, considered as lost to the family. It is this patriarchalaggregate--the modern family thus cut down on one side and extended onthe other--which meets us on the threshold of primitive jurisprudence. Older probably than the State, the Tribe, and the House, it lefttraces of itself on private law long after the House and the Tribe hadbeen forgotten, and long after consanguinity had ceased to beassociated with the composition of States. It will be found to havestamped itself on all the great departments of jurisprudence, and maybe detected, I think, as the true source of many of their mostimportant and most durable characteristics. At the outset, thepeculiarities of law in its most ancient state lead us irresistibly tothe conclusion that it took precisely the same view of the familygroup which is taken of individual men by the systems of rights andduties now prevalent throughout Europe. There are societies open toour observation at this very moment whose laws and usages can scarcelybe explained unless they are supposed never to have emerged from thisprimitive condition; but in communities more fortunately circumstancedthe fabric of jurisprudence fell gradually to pieces, and if wecarefully observe the disintegration we shall perceive that it tookplace principally in those portions of each system which were mostdeeply affected by the primitive conception of the family. In oneall-important instance, that of the Roman law, the change was effectedso slowly, that from epoch to epoch we can observe the line anddirection which it followed, and can even give some idea of theultimate result to which it was tending. And, in pursuing this lastinquiry, we need not suffer ourselves to be stopped by the imaginarybarrier which separates the modern from the ancient world. For oneeffect of that mixture of refined Roman law with primitive barbaricusage, which is known to us by the deceptive name of feudalism, was torevive many features of archaic jurisprudence which had died out ofthe Roman world, so that the decomposition which had seemed to beover commenced again, and to some extent is still proceeding. On a few systems of law the family organisation of the earliestsociety has left a plain and broad mark in the life-long authority ofthe Father or other ancestor over the person and property of hisdescendants, an authority which we may conveniently call by its laterRoman name of Patria Potestas. No feature of the rudimentaryassociations of mankind is deposed to by a greater amount of evidencethan this, and yet none seems to have disappeared so generally and sorapidly from the usages of advancing communities. Gaius, writing underthe Antonines, describes the institution as distinctively Roman. It istrue that, had he glanced across the Rhine or the Danube to thosetribes of barbarians which were exciting the curiosity of some amonghis contemporaries, he would have seen examples of patriarchal powerin its crudest form; and in the far East a branch of the same ethnicalstock from which the Romans sprang was repeating their Patria Potestasin some of its most technical incidents. But among the racesunderstood to be comprised within the Roman empire, Gaius could findnone which exhibited an institution resembling the Roman "Power of theFather, " except only the Asiatic Galatæ. There are reasons, indeed, asit seems to me, why the direct authority of the ancestor should, inthe greater number of progressive societies, very shortly assumehumbler proportions than belonged to it in their earliest state. Theimplicit obedience of rude men to their parent is doubtless a primaryfact, which it would be absurd to explain away altogether byattributing to them any calculation of its advantages; but, at thesame time, if it is natural in the sons to obey the father, it isequally natural that they should look to him for superior strength orsuperior wisdom. Hence, when societies are placed under circumstanceswhich cause an especial value to be attached to bodily and mentalvigour, there is an influence at work which tends to confine thePatria Potestas to the cases where its possessor is actually skilfuland strong. When we obtain our first glimpse of organised Hellenicsociety, it seems as if supereminent wisdom would keep alive thefather's power in persons whose bodily strength had decayed; but therelations of Ulysses and Laertes in the _Odyssee_ appear to show that, where extraordinary valour and sagacity were united in the son, thefather in the decrepitude of age was deposed from the headship of thefamily. In the mature Greek jurisprudence, the rule advances a fewsteps on the practice hinted at in the Homeric literature; and thoughvery many traces of stringent family obligation remain, the directauthority of the parent is limited, as in European codes, to thenonage or minority of the children, or, in other words, to the periodduring which their mental and physical inferiority may always bepresumed. The Roman law, however, with its remarkable tendency toinnovate on ancient usage only just so far as the exigency of thecommonwealth may require, preserves both the primeval institution andthe natural limitation to which I conceive it to have been subject. Inevery relation of life in which the collective community might haveoccasion to avail itself of his wisdom and strength, for all purposesof counsel or of war, the filius familias, or Son under Power, was asfree as his father. It was a maxim of Roman jurisprudence that thePatria Potestas did not extend to the Jus Publicum. Father and sonvoted 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 delinquencies. But in all the relations created by Private Law, the son lived under adomestic despotism which, considering the severity it retained to thelast, 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 ofthe primeval paternal authority, is equally difficult to understand asan institution of civilised life, whether we consider its incidence onthe person or its effects on property. It is to be regretted that achasm which exists in its history cannot be more completely filled. Sofar as regards the person, the parent, when our information commences, has over his children the _jus vitæ necisque_, the power of life anddeath, and _à fortiori_ of uncontrolled corporal chastisement; he canmodify their personal condition at pleasure; he can give a wife to hisson; he can give his daughter in marriage; he can divorce his childrenof either sex; he can transfer them to another family by adoption; andhe can sell them. Late in the Imperial period we find vestiges of allthese powers, but they are reduced within very narrow limits. Theunqualified right of domestic chastisement has become a right ofbringing domestic offences under the cognisance of the civilmagistrate; the privilege of dictating marriage has declined into aconditional veto; the liberty of selling has been virtually abolished, and adoption itself, destined to lose almost all its ancientimportance in the reformed system of Justinian, can no longer beeffected without the assent of the child transferred to the adoptiveparentage. In short, we are brought very close to the verge of theideas which have at length prevailed in the modern world. But betweenthese widely distant epochs there is an interval of obscurity, and wecan only guess at the causes which permitted the Patria Potestas tolast as long as it did by rendering it more tolerable than it appears. The active discharge of the most important among the duties which theson owed to the state must have tempered the authority of his parentif they did not annul it. We can readily persuade ourselves that thepaternal despotism could not be brought into play without greatscandal against a man of full age occupying a high civil office. During the earlier history, however, such cases of practicalemancipation would be rare compared with those which must have beencreated by the constant wars of the Roman republic. The militarytribune and the private soldier who were in the field three-quartersof a year during the earlier contests, at a later period the proconsulin charge of a province, and the legionaries who occupied it, cannothave had practical reason to regard themselves as the slaves of adespotic master; and all these avenues of escape tended constantly tomultiply themselves. Victories led to conquests, conquests tooccupations; the mode of occupation by colonies was exchanged for thesystem of occupying provinces by standing armies. Each step in advancewas a call for the expatriation of more Roman citizens and a freshdraft on the blood of the failing Latin race. We may infer, I think, that a strong sentiment in favour of the relaxation of the PatriaPotestas had become fixed by the time that the pacification of theworld commenced on the establishment of the Empire. The first seriousblows at the ancient institution are attributed to the earlier Cæsars, and some isolated interferences of Trajan and Hadrian seem to haveprepared the ground for a series of express enactments which, thoughwe cannot always determine their dates, we know to have limited thefather's powers on the one hand, and on the other to have multipliedfacilities for their voluntary surrender. The older mode of gettingrid of the Potestas, by effecting a triple sale of the son's person, is evidence, I may remark, of a very early feeling against theunnecessary prolongation of the powers. The rule which declared thatthe son should be free after having been three times sold by hisfather seems to have been originally meant to entail penalconsequences on a practice which revolted even the imperfect moralityof the primitive Roman. But even before the publication of the TwelveTables it had been turned, by the ingenuity of the jurisconsults, intoan expedient for destroying the parental authority wherever the fatherdesired that it should cease. Many of the causes which helped to mitigate the stringency of thefather's power over the persons of his children are doubtless amongthose which do not lie upon the face of history. We cannot tell howfar public opinion may have paralysed an authority which the lawconferred, or how far natural affection may have rendered itendurable. But though the powers over the _person_ may have beenlatterly nominal, the whole tenour of the extant Roman jurisprudencesuggests that the father's rights over the son's _property_ werealways exercised without scruple to the full extent to which they weresanctioned by law. There is nothing to astonish us in the latitude ofthese rights when they first show themselves. The ancient law of Romeforbade the Children under Power to hold property apart from theirparent, or (we should rather say) never contemplated the possibilityof their claiming a separate ownership. The father was entitled totake the whole of the son's acquisitions, and to enjoy the benefit ofhis contracts without being entangled in any compensating liability. So much as this we should expect from the constitution of the earliestRoman society, for we can hardly form a notion of the primitive familygroup unless we suppose that its members brought their earnings of allkinds into the common stock while they were unable to bind it byimprovident individual engagements. The true enigma of the PatriaPotestas does not reside here, but in the slowness with which theseproprietary privileges of the parent were curtailed, and in thecircumstance that, before they were seriously diminished, the wholecivilised world was brought within their sphere. No innovation of anykind was attempted till the first years of the Empire, when theacquisitions of soldiers on service were withdrawn from the operationof the Patria Potestas, doubtless as part of the reward of the armieswhich had overthrown the free commonwealth. Three centuries afterwardsthe same immunity was extended to the earnings of persons who were inthe civil employment of the state. Both changes were obviously limitedin their application, and they were so contrived in technical form asto interfere as little as possible with the principle of PatriaPotestas. A certain qualified and dependent ownership had always beenrecognised by the Roman law in the perquisites and savings whichslaves and sons under power were not compelled to include in thehousehold accounts, and the special name of this permissive property, Peculium, was applied to the acquisitions newly relieved from PatriaPotestas, which were called in the case of soldiers CastrensePeculium, and Quasi-castrense Peculium in the case of civil servants. Other modifications of the parental privileges followed, which showeda less studious outward respect for the ancient principle. Shortlyafter the introduction of the Quasi-castrense Peculium, Constantinethe Great took away the father's absolute control over property whichhis children had inherited from their mother, and reduced it to a_usufruct_, or life-interest. A few more changes of slight importancefollowed in the Western Empire, but the furthest point reached was inthe East, under Justinian, who enacted that unless the acquisitions ofthe child were derived from the parent's own property, the parent'srights over them should not extend beyond enjoying their produce forthe period of his life. Even this, the utmost relaxation of the RomanPatria Potestas, left it far ampler and severer than any analogousinstitution of the modern world. The earliest modern writers onjurisprudence remark that it was only the fiercer and ruder of theconquerors of the empire, and notably the nations of Sclavonic origin, which exhibited a Patria Potestas at all resembling that which wasdescribed in the Pandects and the Code. All the Germanic immigrantsseem to have recognised a corporate union of the family under the_mund_, or authority of a patriarchal chief; but his powers areobviously only the relics of a decayed Patria Potestas, and fell farshort of those enjoyed by the Roman father. The Franks areparticularly mentioned as not having the Roman Institution, andaccordingly the old French lawyers, even when most busily engaged infilling the interstices of barbarous custom with rules of Roman law, were obliged to protect themselves against the intrusion of thePotestas by the express maxim, _Puyssance de père en France n'a lieu_. The tenacity of the Romans in maintaining this relic of their mostancient condition is in itself remarkable, but it is less remarkablethan the diffusion of the Potestas over the whole of a civilisationfrom which it had once disappeared. While the Castrense Peculiumconstituted as yet the sole exception to the father's power overproperty, and while his power over his children's persons was stillextensive, the Roman citizenship, and with it the Patria Potestas, were spreading into every corner of the empire. Every African orSpaniard, every Gaul, Briton, or Jew, who received this honour bygift, purchase, or inheritance, placed himself under the Roman Law ofPersons, and, though our authorities intimate that children bornbefore the acquisition of citizenship could not be brought under Poweragainst their will, children born after it and all ulteriordescendants were on the ordinary footing of a Roman _filius familias_. It does not fall within the province of this treatise to examine themechanism of the later Roman society, but I may be permitted to remarkthat there is little foundation for the opinion which represents theconstitution of Antoninus Caracalla conferring Roman citizenship onthe whole of his subjects as a measure of small importance. However wemay interpret it, it must have enormously enlarged the sphere of thePatria Potestas, and it seems to me that the tightening of familyrelations which it effected is an agency which ought to be kept inview more than it has been, in accounting for the great moralrevolution which was transforming the world. Before this branch of our subject is dismissed, it should be observedthat the Paterfamilias was answerable for the delicts (or _torts_) ofhis Sons under Power. He was similarly liable for the torts of hisslaves; but in both cases he originally possessed the singularprivilege of tendering the delinquent's person in full satisfaction ofthe damage. The responsibility thus incurred on behalf of sons, coupled with the mutual incapacity of parent and Child under Power tosue one another, has seemed to some jurists to be best explained bythe assumption of a "unity of person" between the Paterfamilias andthe Filius-familias. In the chapter on Successions I shall attemptto show in what sense, and to what extent, this "unity" can beaccepted as a reality. I can only say at present that theseresponsibilities of the Paterfamilias, and other legal phenomena whichwill be discussed hereafter, appear to me to point at certain _duties_of the primitive Patriarchal chieftain which balanced his _rights_. Iconceive that, if he disposed absolutely of the persons and fortune ofhis clansmen, this representative ownership was coextensive with aliability to provide for all members of the brotherhood out of thecommon fund. The difficulty is to throw ourselves out of our habitualassociations sufficiently for conceiving the nature of his obligation. It was not a legal duty, for law had not yet penetrated into theprecinct of the Family. To call it _moral_ is perhaps to anticipatethe ideas belonging to a later stage of mental development; but theexpression "moral obligation" is significant enough for our purpose, if we understand by it a duty semi-consciously followed and enforcedrather by instinct and habit than by definite sanctions. The Patria Potestas, in its normal shape, has not been, and, as itseems to me, could not have been, a generally durable institution. Theproof of its former universality is therefore incomplete so long as weconsider it by itself; but the demonstration may be carried muchfurther by examining other departments of ancient law which depend onit ultimately, but not by a thread of connection visible in all itsparts or to all eyes. Let us turn for example to Kinship, or in otherwords, to the scale on which the proximity of relatives to each otheris calculated in archaic jurisprudence. Here again it will beconvenient to employ the Roman terms, Agnatic and Cognaticrelationship. _Cognatic_ relationship is simply the conception ofkinship familiar to modern ideas; it is the relationship arisingthrough common descent from the same pair of married persons, whetherthe descent be traced through males or females. _Agnatic_ relationshipis something very different: it excludes a number of persons whom wein our day should certainly consider of kin to ourselves, and itincludes many more whom we should never reckon among our kindred. Itis in truth the connection existing between the members of the Family, conceived as it was in the most ancient times. The limits of thisconnection are far from conterminous with those of modernrelationship. Cognates then are all those persons who can trace their blood to asingle ancestor and ancestress; or, if we take the strict technicalmeaning of the word in Roman law, they are all who trace their bloodto the legitimate marriage of a common pair. "Cognation" is thereforea relative term, and the degree of connection in blood which itindicates depends on the particular marriage which is selected as thecommencement of the calculation. If we begin with the marriage offather and mother, Cognation will only express the relationship ofbrothers and sisters; if we take that of the grandfather andgrandmother, then uncles, aunts, and their descendants will also beincluded in the notion of Cognation, and following the same process alarger number of Cognates may be continually obtained by choosing thestarting point higher and higher up in the line of ascent. All this iseasily understood by a modern; but who are the Agnates? In the firstplace, they are all the Cognates who trace their connection exclusivelythrough males. A table of Cognates is, of course, formed by takingeach lineal ancestor in turn and including all his descendants of bothsexes in the tabular view; if then, in tracing the various branches ofsuch a genealogical table or tree, we stop whenever we come to thename of a female and pursue that particular branch or ramification nofurther, all who remain after the descendants of women have beenexcluded are Agnates, and their connection together is AgnaticRelationship. I dwell a little on the process which is practicallyfollowed in separating them from the Cognates, because it explains amemorable legal maxim, "Mulier est finis familiæ"--a woman is theterminus of the family. A female name closes the branch or twig of thegenealogy in which it occurs. None of the descendants of a female areincluded in the primitive notion of family relationship. If the system of archaic law at which we are looking be one whichadmits Adoption, we must add to the Agnate thus obtained all persons, male or female, who have been brought into the Family by theartificial extension of its boundaries. But the descendants of suchpersons will only be Agnates, if they satisfy the conditions whichhave just been described. What then is the reason of this arbitrary inclusion and exclusion? Whyshould a conception of Kinship, so elastic as to include strangersbrought into the family by adoption, be nevertheless so narrow as toshut out the descendants of a female member? To solve thesequestions, we must recur to the Patria Potestas. The foundation ofAgnation is not the marriage of Father and Mother, but the authorityof the Father. All persons are Agnatically connected together who areunder the same Paternal Power, or who have been under it, or who mighthave been under it if their lineal ancestor had lived long enough toexercise his empire. In truth, in the primitive view, Relationship isexactly limited by Patria Potestas. Where the Potestas begins, Kinshipbegins; and therefore adoptive relatives are among the kindred. Wherethe Potestas ends, Kinship ends; so that a son emancipated by hisfather loses all rights of Agnation. And here we have the reason whythe descendants of females are outside the limits 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 ofher Father, but of her Husband, and thus were lost to her own family. It is obvious that the organisation of primitive societies would havebeen confounded, if men had called themselves relatives of theirmother's relatives. The inference would have been that a person mightbe subject to two distinct Patriæ Potestates; but distinct PatriæPotestates implied distinct jurisdictions, so that anybody amenable totwo of them at the same time would have lived under two differentdispensations. As long as the Family was an imperium in imperio, acommunity within the commonwealth, governed by its own institutions ofwhich the parent was the source, the limitation of relationship to theAgnates was a necessary security against a conflict of laws in thedomestic forum. The Parental Powers proper are extinguished by the death of theParent, but Agnation is as it were a mould which retains their imprintafter they have ceased to exist. Hence comes the interest of Agnationfor the inquirer into the history of jurisprudence. The Powersthemselves are discernible in comparatively few monuments of ancientlaw, but Agnatic Relationship, which implies their former existence, is discoverable almost everywhere. There are few indigenous bodies oflaw belonging to communities of the Indo-European stock, which do notexhibit peculiarities in the most ancient part of their structurewhich are clearly referable to Agnation. In Hindoo law, for example, which is saturated with the primitive notions of family dependency, kinship is entirely Agnatic, and I am informed that in Hindoogenealogies the names of women are generally omitted altogether. Thesame view of relationship pervades so much of the laws of the raceswho overran the Roman Empire as appears to have really formed part oftheir primitive usage, and we may suspect that it would haveperpetuated itself even more than it has in modern Europeanjurisprudence, if it had not been for the vast influence of the laterRoman law on modern thought. The Prætors early laid hold on Cognationas the _natural_ form of kinship, and spared no pains in purifyingtheir system from the older conception. Their ideas have descended tous, but still traces of Agnation are to be seen in many of the modernrules of succession after death. The exclusion of females and theirchildren from governmental functions, commonly attributed to the usageof the Salian Franks, has certainly an agnatic origin, being descendedfrom the ancient German rule of succession to allodial property. InAgnation too is to be sought the explanation of that extraordinaryrule of English Law, only recently repealed, which prohibited brothersof the half-blood from succeeding to one another's lands. In theCustoms of Normandy, the rule applies to _uterine_ brothers only, thatis, to brothers by the same mother but not by the same father; and, limited in this way, it is a strict deduction from the system ofAgnation, under which uterine brothers are no relations at all to oneanother. When it was transplanted to England, the English judges, whohad no clue to its principle, interpreted it as a general prohibitionagainst the succession of the half-blood, and extended it to_consanguineous_ brothers, that is to sons of the same father bydifferent wives. In all the literature which enshrines the pretendedphilosophy of law, there is nothing more curious than the pages ofelaborate sophistry in which Blackstone attempts to explain andjustify the exclusion of the half-blood. It may be shown, I think, that the Family, as held together by thePatria Potestas, is the nidus out of which the entire Law of Personshas germinated. Of all the chapters of that Law the most important isthat which is concerned with the status of Females. It has just beenstated that Primitive Jurisprudence, though it does not allow a Womanto communicate any rights of Agnation to her descendants, includesherself nevertheless in the Agnatic bond. Indeed, the relation of afemale to the family in which she was born is much stricter, closer, and more durable than that which unites her male kinsmen. We haveseveral times laid down that early law takes notice of Families only;this is the same thing as saying that it only takes notice of personsexercising Patria Potestas, and accordingly the only principle onwhich it enfranchises a son or grandson at the death of his Parent, isa consideration of the capacity inherent in such son or grandson tobecome himself the head of a new family and the root of a new set ofParental Powers. But a woman, of course, has no capacity of the kind, and no title accordingly to the liberation which it confers. There istherefore a peculiar contrivance of archaic jurisprudence forretaining her in the bondage of the Family for life. This is theinstitution known to the oldest Roman law as the Perpetual Tutelage ofWomen, under which a Female, though relieved from her Parent'sauthority by his decease, continues subject through life to hernearest male relations as her Guardians. Perpetual Guardianship isobviously neither more nor less than an artificial prolongation of thePatria Potestas, when for other purposes it has been dissolved. InIndia, the system survives in absolute completeness, and its operationis so strict that a Hindoo Mother frequently becomes the ward of herown sons. Even in Europe, the laws of the Scandinavian nationsrespecting women preserved it until quite recently. The invaders ofthe Western Empire had it universally among their indigenous usages, and indeed their ideas on the subject of Guardianship, in all itsforms, were among the most retrogressive of those which theyintroduced into the Western world. But from the mature Romanjurisprudence it had entirely disappeared. We should know almostnothing about it, if we had only the compilations of Justinian toconsult; but the discovery of the manuscript of Gaius discloses it tous at a most interesting epoch, just when it had fallen into completediscredit and was verging on extinction. The great jurisconsulthimself scouts the popular apology offered for it in the mentalinferiority of the female sex, and a considerable part of his volumeis taken up with descriptions of the numerous expedients, some of themdisplaying extraordinary ingenuity, which the Roman lawyers haddevised for enabling Women to defeat the ancient rules. Led by theirtheory of Natural Law, the jurisconsults had evidently at this timeassumed the equality of the sexes as a principle of their code ofequity. The restrictions which they attacked were, it is to beobserved, restrictions on the disposition of property, for which theassent of the woman's guardians was still formally required. Controlof her person was apparently quite obsolete. Ancient Law subordinates the woman to her blood-relations, while aprime phenomenon of modern jurisprudence has been her subordination toher husband. The history of the change is remarkable. It begins farback in the annals of Rome. Anciently, there were three modes in whichmarriage might be contracted according to Roman usage, one involving areligious solemnity, the other two the observance of certain secularformalities. By the religious marriage or _Confarreation_; by thehigher form of civil marriage, which was called _Coemption_; and bythe lower form, which was termed _Usus_, the Husband acquired a numberof rights over the person and property of his wife, which were on thewhole in excess of such as are conferred on him in any system ofmodern 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 itsubsisted, and surviving it when it had expired. All her propertybecame absolutely his, and she was retained in tutelage after hisdeath to the guardian whom he had appointed by will. These threeancient forms of marriage fell, however, gradually into disuse, sothat, at the most splendid period of Roman greatness, they had almostentirely given place to a fashion of wedlock--old apparently, but nothitherto considered reputable--which was founded on a modification ofthe lower form of civil marriage. Without explaining the technicalmechanism of the institution now generally popular, I may describe itas amounting in law to little more than a temporary deposit of thewoman by her family. The rights of the family remained unimpaired, andthe lady continued in the tutelage of guardians whom her parents hadappointed and whose privileges of control overrode, in many materialrespects, the inferior authority of her husband. The consequence wasthat the situation of the Roman female, whether married or unmarried, became one of great personal and proprietary independence, for thetendency of the later law, as I have already hinted, was to reducethe power of the guardian to a nullity, while the form of marriage infashion conferred on the husband no compensating superiority. ButChristianity tended somewhat from the very first to narrow thisremarkable liberty. Led at first by justifiable disrelish for theloose practices of the decaying heathen world, but afterwards hurriedon by a passion of asceticism, the professors of the new faith lookedwith disfavour on a marital tie which was in fact the laxest theWestern world has seen. The latest Roman law, so far as it is touchedby the constitutions of the Christian Emperors, bears some marks of areaction against the liberal doctrines of the great Antoninejurisconsults. And the prevalent state of religious sentiment mayexplain why it is that modern jurisprudence, forged in the furnace ofbarbarian conquest, and formed by the fusion of Roman jurisprudencewith patriarchal usage, has absorbed, among its rudiments, much morethan usual of those rules concerning the position of women whichbelong peculiarly to an imperfect civilisation. During the troubledera which begins modern history, and while the laws of the Germanicand Sclavonic immigrants remained superposed like a separate layerabove the Roman jurisprudence of their provincial subjects, the womenof the dominant races are seen everywhere under various forms ofarchaic guardianship, and the husband who takes a wife from any familyexcept his own pays a money-price to her relations for the tutelagewhich they surrender to him. When we move onwards, and the code of themiddle ages has been formed by the amalgamation of the two systems, the law relating to women carries the stamp of its double origin. Theprinciple of the Roman jurisprudence is so far triumphant thatunmarried females are generally (though there are local exceptions tothe rule) relieved from the bondage of the family; but the archaicprinciple of the barbarians has fixed the position of married women, and the husband has drawn to himself in his marital character thepowers which had once belonged to his wife's male kindred, the onlydifference being that he no longer purchases his privileges. At thispoint therefore the modern law of Western and Southern Europe beginsto be distinguished by one of its chief characteristics, thecomparative freedom it allows to unmarried women and widows, the heavydisabilities it imposes on wives. It was very long before thesubordination entailed on the other sex by marriage was sensiblydiminished. The principal and most powerful solvent of the revivedbarbarism of Europe was always the codified jurisprudence ofJustinian, wherever it was studied with that passionate enthusiasmwhich it seldom failed to awaken. It covertly but most efficaciouslyundermined the customs which it pretended merely to interpret. But theChapter of law relating to married women was for the most part read bythe light, not of Roman, but of Canon Law, which in no one particulardeparts so widely from the spirit of the secular jurisprudence as inthe view it takes of the relations created by marriage. This was inpart inevitable, since no society which preserves any tincture ofChristian institution is likely to restore to married women thepersonal liberty conferred on them by the middle Roman law, but theproprietary disabilities of married females stand on quite a differentbasis from their personal incapacities, and it is by keeping alive andconsolidating the former that the expositors of the Canon Law havedeeply injured civilisation. There are many vestiges of a strugglebetween the secular and ecclesiastical principles, but the Canon Lawnearly everywhere prevailed. In some of the French provinces marriedwomen, of a rank below nobility, obtained all the powers of dealingwith property which Roman jurisprudence had allowed, and this locallaw has been largely followed by the Code Napoléon; but the state ofthe Scottish law shows that scrupulous deference to the doctrines ofthe Roman jurisconsults did not always extend to mitigating thedisabilities of wives. The systems however which are least indulgentto married women are invariably those which have followed the CanonLaw exclusively, or those which, from the lateness of their contactwith European civilisation, have never had their archaisms weeded out. The Scandinavian laws, harsh till lately to all females, are stillremarkable for their severity to wives. And scarcely less stringent inthe proprietary incapacities it imposes is the English Common Law, which borrows far the greatest number of its fundamental principlesfrom the jurisprudence of the Canonists. Indeed, the part of theCommon Law which prescribes the legal situation of married women mayserve to give an Englishman clear notions of the great institutionwhich has been the principal subject of this chapter. I do not knowhow the operation and nature of the ancient Patria Potestas can bebrought so vividly before the mind as by reflecting on theprerogatives attached to the husband by the pure English Common Law, and by recalling the rigorous consistency with which the view of acomplete legal subjection on the part of the wife is carried by it, where it is untouched by equity or statutes, through every departmentof rights, duties, and remedies. The distance between the eldest andlatest Roman law on the subject of Children under Power may beconsidered as equivalent to the difference between the Common Law andthe jurisprudence of the Court of Chancery in the rules which theyrespectively apply to wives. If we were to lose sight of the true origin of Guardianship in bothits forms and were to employ the common language on these topics, weshould find ourselves remarking that, while the Tutelage of Women isan instance in which systems of archaic law push to an extravagantlength the fiction of suspended rights, the rules which they lay downfor the Guardianship of Male Orphans are an example of a fault inprecisely the opposite direction. All such systems terminate theTutelage of males at an extraordinary early period. Under the ancientRoman law, which may be taken as their type, the son who was deliveredfrom Patria Potestas by the death of his Father or Grandfatherremained under guardianship till an epoch which for general purposesmay be described as arriving with his fifteenth year; but the arrivalof that epoch placed him at once in the full enjoyment of personal andproprietary independence. The period of minority appears therefore tohave been as unreasonably short as the duration of the disabilities ofwomen was preposterously long. But, in point of fact, there was noelement either of excess or of shortcoming in the circumstances whichgave their original form to the two kinds of guardianship. Neither theone nor the other of them was based on the slightest consideration ofpublic or private convenience. The guardianship of male orphans was nomore designed originally to shield them till the arrival of years ofdiscretion than the tutelage of women was intended to protect theother sex against its own feebleness. The reason why the death of thefather delivered the son from the bondage of the family was the son'scapacity for becoming himself the head of a new family and the founderof a new Patria Potestas; no such capacity was possessed by the womanand therefore she was _never_ enfranchised. Accordingly theGuardianship of Male Orphans was a contrivance for keeping alive thesemblance of subordination to the family of the Parent, up to the timewhen the child was supposed capable of becoming a parent himself. Itwas a prolongation of the Patria Potestas up to the period of barephysical manhood. It ended with puberty, for the rigour of the theorydemanded that it should do so. Inasmuch, however, as it did notprofess to conduct the orphan ward to the age of intellectual maturityor fitness for affairs, it was quite unequal to the purposes ofgeneral convenience; and this the Romans seem to have discovered at avery early stage of their social progress. One of the very oldestmonuments of Roman legislation is the _Lex Lætoria_ or _Plætoria_which placed all free males who were of full years and rights underthe temporary control of a new class of guardians, called _Curatores_, whose sanction was required to validate their acts or contracts. Thetwenty-sixth year of the young man's age was the limit of thisstatutory supervision; and it is exclusively with reference to the ageof twenty-five that the terms "majority" and "minority" are employedin Roman law. _Pupilage_ or _wardship_ in modern jurisprudence hadadjusted itself with tolerable regularity to the simple principle ofprotection to the immaturity of youth both bodily and mental. It hasits natural termination with years of discretion. But for protectionagainst physical weakness and for protection against intellectualincapacity, the Romans looked to two different institutions, distinctboth in theory and design. The ideas attendant on both are combined inthe modern idea of guardianship. The Law of Persons contains but one other chapter which can beusefully cited for our present purpose. The legal rules by whichsystems of nature jurisprudence regulate the connection of _Master andSlave_, present no very distinct traces of the original conditioncommon to ancient societies. But there are reasons for this exception. There seems to be something in the institution of Slavery which has atall times either shocked or perplexed mankind, however littlehabituated to reflection, and however slightly advanced in thecultivation of its moral instincts. The compunction which ancientcommunities almost unconsciously experienced appears to have alwaysresulted in the adoption of some imaginary principle upon which adefence, or at least a rationale, of slavery could be plausiblyfounded. Very early in their history the Greeks explained theinstitution as grounded on the intellectual inferiority of certainraces and their consequent natural aptitude for the servile condition. The Romans, in a spirit equally characteristic, derived it from asupposed agreement between the victor and the vanquished in which thefirst stipulated for the perpetual services of his foe; and the othergained in consideration the life which he had legitimately forfeited. Such theories were not only unsound but plainly unequal to the casefor which they affected to account. Still they exercised powerfulinfluence in many ways. They satisfied the conscience of the Master. They perpetuated and probably increased the debasement of the Slave. And they naturally tended to put out of sight the relation in whichservitude had originally stood to the rest of the domestic system. Therelation, though not clearly exhibited, is casually indicated in manyparts of primitive law, and more particularly in the typicalsystem--that of ancient Rome. Much industry and some learning have been bestowed in the UnitedStates of America on the question whether the Slave was in the earlystages of society a recognised member of the Family. There is a sensein which an affirmative answer must certainly be given. It is clear, from the testimony both of ancient law and of many primeval histories, that the Slave might under certain conditions be made the Heir, orUniversal Successor, of the Master, and this significant faculty, as Ishall explain in the Chapter on Succession, implies that thegovernment and representation of the Family might, in a particularstate of circumstances, devolve on the bondman. It seems, however, tobe assumed in the American arguments on the subject that, if we allowSlavery to have been a primitive Family institution, theacknowledgment is pregnant with an admission of the moraldefensibility of Negro-servitude at the present moment. What then ismeant by saying that the Slave was originally included in the Family?Not that his situation may not have been the fruit of the coarsestmotives which can actuate man. The simple wish to use the bodilypowers of another person as a means of ministering to one's own easeor pleasure is doubtless the foundation of Slavery, and as old ashuman nature. When we speak of the Slave as anciently included in theFamily, we intend to assert nothing as to the motives of those whobrought him into it or kept him there; we merely imply that the tiewhich bound him to his master was regarded as one of the same generalcharacter with that which united every other member of the group toits chieftain. This consequence is, in fact, carried in the generalassertion already made that the primitive ideas of mankind wereunequal to comprehending any basis of the connection _inter se_ ofindividuals, apart from the relations of family. The Family consistedprimarily of those who belonged to it by consanguinity and next ofthose who had been engrafted on it by adoption; but there was still athird class of persons who were only joined to it by common subjectionto its head, and these were the Slaves. The born and the adoptedsubjects of the chief were raised above the Slave by the certaintythat in the ordinary course of events they would be relieved frombondage and entitled to exercise powers of their own; but that theinferiority of the Slave was not such as to place him outside the paleof the Family, or such as to degrade him to the footing of inanimateproperty, is clearly proved, I think, by the many traces which remainof his ancient capacity for inheritance in the last resort. It would, of course, be unsafe in the highest degree to hazard conjectures howfar the lot of the Slave was mitigated, in the beginnings of society, by having a definite place reserved to him in the empire of theFather. It is, perhaps, more probable that the son was practicallyassimilated to the Slave, than that the Slave shared any of thetenderness which in later times was shown to the son. But it may beasserted with some confidence of advanced and matured codes that, wherever servitude is sanctioned, the Slave has uniformly greateradvantages under systems which preserve some memento of his earliercondition than under those which have adopted some other theory of hiscivil degradation. The point of view from which jurisprudence regardsthe Slave is always of great importance to him. The Roman law wasarrested in its growing tendency to look upon him more and more as anarticle of property by the theory of the Law of Nature; and hence itis that, wherever servitude is sanctioned by institutions which havebeen deeply affected by Roman jurisprudence, the servile condition isnever intolerably wretched. There is a great deal of evidence that inthose American States which have taken the highly Romanised code ofLouisiana as the basis of their jurisprudence, the lot and prospectsof the negro-population are better in many material respects thanunder institutions founded on the English Common Law, which, asrecently interpreted, has no true place for the Slave, and can onlytherefore regard him as a chattel. We have now examined all parts of the ancient Law of Persons whichfall within the scope of this treatise, and the result of the inquiryis, I trust, to give additional definiteness and precision to our viewof the infancy of jurisprudence. The Civil laws of States first maketheir appearance as the Themistes of a patriarchal sovereign, and wecan now see that these Themistes are probably only a developed form ofthe irresponsible commands which, in a still earlier condition of therace, the head of each isolated household may have addressed to hiswives, his children, and his slaves. But, even after the State hasbeen organised, the laws have still an extremely limited application. Whether they retain their primitive character as Themistes, or whetherthey advance to the condition of Customs or Codified Texts, they arebinding not on individuals, but on Families. Ancient jurisprudence, ifa perhaps deceptive comparison may be employed, may be likened toInternational Law, filling nothing, as it were, excepting theinterstices between the great groups which are the atoms of society. In a community so situated, the legislation of assemblies and thejurisdiction of Courts reaches only to the heads of families, and toevery other individual the rule of conduct is the law of his home, ofwhich his Parent is the legislator. But the sphere of civil law, smallat first, tends steadily to enlarge itself. The agents of legalchange, Fictions, Equity, and Legislation, are brought in turn to bearon the primeval institutions, and at every point of the progress, agreater number of personal rights and a larger amount of property areremoved from the domestic forum to the cognisance of the publictribunals. The ordinances of the government obtain gradually the sameefficacy in private concerns as in matters of state, and are no longerliable to be overridden by the behests of a despot enthroned by eachhearthstone. We have in the annals of Roman law a nearly completehistory of the crumbling away of an archaic system, and of theformation of new institutions from the recombined materials, institutions some of which descended unimpaired to the modern world, while others, destroyed or corrupted by contact with barbarism in thedark ages, had again to be recovered by mankind. When we leave thisjurisprudence at the epoch of its final reconstruction by Justinian, few traces of archaism can be discovered in any part of it except inthe single article of the extensive powers still reserved to theliving Parent. Everywhere else principles of convenience, or ofsymmetry, or of simplification--new principles at any rate--haveusurped the authority of the jejune considerations which satisfied theconscience of ancient times. Everywhere a new morality has displacedthe canons of conduct and the reasons of acquiescence which were inunison with the ancient usages, because in fact they were born ofthem. The movement of the progressive societies has been uniform in onerespect. Through all its course it has been distinguished by thegradual dissolution of family dependency and the growth of individualobligation in its place. The Individual is steadily substituted forthe Family, as the unit of which civil laws take account. The advancehas been accomplished at varying rates of celerity, and there aresocieties not absolutely stationary in which the collapse of theancient organisation can only be perceived by careful study of thephenomena they present. But, whatever its pace, the change has notbeen subject to reaction or recoil, and apparent retardations will befound to have been occasioned through the absorption of archaic ideasand customs from some entirely foreign source. Nor is it difficult tosee what is the tie between man and man which replaces by degreesthose forms of reciprocity in rights and duties which have theirorigin in the Family. It is Contract. Starting, as from one terminusof history, from a condition of society in which all the relations ofPersons are summed up in the relations of Family, we seem to havesteadily moved towards a phase of social order in which all theserelations arise from the free agreement of Individuals. In WesternEurope the progress achieved in this direction has been considerable. Thus the status of the Slave has disappeared--it has been supersededby the contractual relation of the servant to his master. The statusof the Female under Tutelage, if the tutelage be understood of personsother than her husband, has also ceased to exist; from her coming ofage to her marriage all the relations she may form are relations ofcontract. So too the status of the Son under Power has no true placein law of modern European societies. If any civil obligation bindstogether the Parent and the child of full age, it is one to which onlycontract gives its legal validity. The apparent exceptions areexceptions of that stamp which illustrate the rule. The child beforeyears of discretion, the orphan under guardianship, the adjudgedlunatic, have all their capacities and incapacities regulated by theLaw of Persons. But why? The reason is differently expressed in theconventional language of different systems, but in substance it isstated to the same effect by all. The great majority of Jurists areconstant to the principle that the classes of persons just mentionedare subject to extrinsic control on the single ground that they do notpossess the faculty of forming a judgment on their own interests; inother words, that they are wanting in the first essential of anengagement by Contract. The word Status may be usefully employed to construct a formulaexpressing the law of progress thus indicated, which, whatever be itsvalue, seems to me to be sufficiently ascertained. All the forms ofStatus taken notice of in the Law of Persons were derived from, and tosome extent are still coloured by, the powers and privileges ancientlyresiding in the Family. If then we employ Status, agreeably with theusage of the best writers, to signify these personal conditions only, and avoid applying the term to such conditions as are the immediate orremote result of agreement, we may say that the movement of theprogressive societies has hitherto been a movement _from Status toContract_. CHAPTER VI THE EARLY HISTORY OF TESTAMENTARY SUCCESSION If an attempt were made to demonstrate in England the superiority ofthe historical method of investigation to the modes of inquiryconcerning Jurisprudence which are in fashion among us, no departmentof Law would better serve as an example than Testaments or Wills. Itscapabilities it owes to its great length and great continuity. At thebeginning of its history we find ourselves in the very infancy of thesocial state, surrounded by conceptions which it requires some effortof mind to realise in their ancient form; while here, at the otherextremity of its line of progress, we are in the midst of legalnotions which are nothing more than those same conceptions disguisedby the phraseology and by the habits of thought which belong to moderntimes, and exhibiting therefore a difficulty of another kind, thedifficulty of believing that ideas which form part of our everydaymental stock can really stand in need of analysis and examination. Thegrowth of the Law of Wills between these extreme points can be tracedwith remarkable distinctness. It was much less interrupted at theepoch of the birth of feudalism, than the history of most otherbranches of law. It is, indeed, true that, as regards all provinces ofjurisprudence, the break caused by the division between ancient andmodern history, or in other words by the dissolution of the Romanempire, has been very greatly exaggerated. Indolence has disinclinedmany writers to be at the pains of looking for threads of connectionentangled and obscured by the confusions of six troubled centuries, while other inquirers, not naturally deficient in patience andindustry, have been misled by idle pride in the legal system of theircountry, and by consequent unwillingness to confess its obligations tothe jurisprudence of Rome. But these unfavourable influences have hadcomparatively little effect on the province of Testamentary Law. Thebarbarians were confessedly strangers to any such conception as thatof a Will. The best authorities agree that there is no trace of it inthose parts of their written codes which comprise the customspractised by them in their original seats, and in their subsequentsettlements on the edge of the Roman empire. But soon after theybecame mixed with the population of the Roman provinces theyappropriated from the Imperial jurisprudence the conception of a Will, at first in part, and afterwards in all its integrity. The influenceof the Church had much to do with this rapid assimilation. Theecclesiastical power had very early succeeded to those privileges ofcustody and registration of Testaments which several of the heathentemples had enjoyed; and even thus early it was almost exclusively toprivate bequests that the religious foundations owed their temporalpossessions. Hence it is that the decrees of the earliest ProvincialCouncils perpetually contain anathemas against those who deny thesanctity of Wills. Here, in England, Church influence was certainlychief among the causes which by universal acknowledgment haveprevented that discontinuity in the history of Testamentary Law, whichis sometimes believed to exist in the history of other provinces ofJurisprudence. The jurisdiction over one class of Wills was delegatedto the Ecclesiastical Courts, which applied to them, though not alwaysintelligently, the principles of Roman jurisprudence; and, thoughneither the courts of Common Law nor the Court of Chancery owned anypositive obligation to follow the Ecclesiastical tribunals, they couldnot escape the potent influence of a system of settled rules in courseof application by their side. The English law of testamentarysuccession to personalty has become a modified form of thedispensation under which the inheritances of Roman citizens wereadministered. It is not difficult to point out the extreme difference of theconclusions forced on us by the historical treatment of the subjectfrom those to which we are conducted when, without the help ofhistory, we merely strive to analyse our _primâ facie_ impressions. Isuppose there is nobody who, starting from the popular or even thelegal conception of a Will, would not imagine that certain qualitiesare necessarily attached to it. He would say, for example, that a Willnecessarily takes effect _at death only_--that it is _secret_, notknown as a matter of course to persons taking interests under itsprovisions--that it is _revocable_, _i. E. _ always capable of beingsuperseded by a new act of testation. Yet I shall be able to showthat there was a time when none of these characteristics belonged to aWill. The Testaments from which our Wills are directly descended atfirst took effect immediately on their execution; they were notsecret; they were not revocable. Few legal agencies are, in fact, thefruit of more complex historical agencies than that by which a man'swritten intentions control the posthumous disposition of his goods. Testaments very slowly and gradually gathered round them the qualitiesI have mentioned; and they did this from causes and under pressure ofevents which may be called casual, or which at any rate have nointerest for us at present, except so far as they have affected thehistory of law. At a time when legal theories were more abundant than atpresent--theories which, it is true, were for the most part gratuitousand premature enough, but which nevertheless rescued jurisprudencefrom that worse and more ignoble condition, not unknown to ourselves, in which nothing like a generalisation is aspired to, and law isregarded as a mere empirical pursuit--it was the fashion to explainthe ready and apparently intuitive perception which we have of certainqualities in a Will, by saying that they were natural to it, or, asthe phrase would run in full, attached to it by the Law of Nature. Nobody, I imagine, would affect to maintain such a doctrine, when onceit was ascertained that all these characteristics had their originwithin historical memory; at the same time, vestiges of the theory ofwhich the doctrine is an offshoot, linger in forms of expression whichwe all of us use and perhaps scarcely know how to dispense with. I mayillustrate this by mentioning a position common in the legalliterature of the seventeenth century. The jurists of that period verycommonly 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 substancefollowed by those who affirm that the right of dictating orcontrolling the posthumous disposal of property is a necessary ornatural consequence of the proprietary rights themselves. And everystudent of technical jurisprudence must have come across the sameview, clothed in the language of a rather different school, which, inits rationale of this department of law, treats succession _extestamento_ as the mode of devolution which the property of deceasedpersons ought primarily to follow, and then proceeds to account forsuccession _ab intestato_ as the incidental provision of the lawgiverfor the discharge of a function which was only left unperformedthrough the neglect or misfortune of the deceased proprietor. Theseopinions are only expanded forms of the more compendious doctrine thatTestamentary disposition is an institution of the Law of Nature. It iscertainly never quite safe to pronounce dogmatically as to the rangeof association embraced by modern minds, when they reflect on Natureand her Law; but I believe that most persons, who affirm that theTestamentary Power is of Natural Law, may be taken to imply eitherthat, as a matter of fact, it is universal, or that nations areprompted to sanction it by an original instinct and impulse. Withrespect to the first of these positions, I think that, when explicitlyset forth, it can never be seriously contended for in an age which hasseen the severe restraints imposed on the Testamentary Power by the_Code Napoléon_, and has witnessed the steady multiplication ofsystems for which the French codes have served as a model. To thesecond assertion we must object that it is contrary to thebest-ascertained facts in the early history of law, and I venture toaffirm generally that, in all indigenous societies, a condition ofjurisprudence in which Testamentary privileges are _not_ allowed, orrather not contemplated, has preceded that later stage of legaldevelopment in which the mere will of the proprietor is permittedunder more or less of restriction to override the claims of hiskindred 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. Initself a Will is simply the instrument by which the intention of thetestator is declared. It must be clear, I think, that before such aninstrument takes its turn for discussion, there are severalpreliminary points to be examined--as, for example, what is it, whatsort of right or interest, which passes from a dead man on hisdecease? to whom and in what form does it pass? and how came it thatthe dead were allowed to control the posthumous disposition of theirproperty? Thrown into technical language, the dependence of thevarious conceptions which contribute to the notion of a Will is thusexpressed. A Will or Testament is an instrument by which thedevolution of an inheritance is prescribed. Inheritance is a form ofuniversal succession. A universal succession is a succession to a_universitas juris_, or university of rights and duties. Invertingthis order we have therefore to inquire what is a _universitas juris_;what is a universal succession; what is the form of universalsuccession which is called an inheritance? And there are also twofurther questions, independent to some extent of the points I havemooted, but demanding solution before the subject of Wills can beexhausted. These are, how came an inheritance to be controlled in anycase by the testator's volition, and what is the nature of theinstrument by which it came to be controlled? The first question relates to the _universitas juris_; that is, auniversity (or bundle) of rights and duties. A _universitas juris_ isa collection of rights and duties united by the single circumstance oftheir having belonged at one time to some one person. It is, as itwere, the legal clothing of some given individual. It is not formed bygrouping together _any_ rights and _any_ duties. It can only beconstituted by taking all the rights and all the duties of aparticular person. The tie which so connects a number of rights ofproperty, rights of way, rights to legacies, duties of specificperformance, debts, obligations to compensate wrongs--which soconnects all these legal privileges and duties together as toconstitute them a _universitas juris_, is the _fact_ of their havingattached to some individual capable of exercising them. Without this_fact_ there is no university of rights and duties. The expression_universitas juris_ is not classical, but for the notion jurisprudenceis exclusively indebted to Roman law; nor is it at all difficult toseize. We must endeavour to collect under one conception the whole setof legal relations in which each one of us stands to the rest of theworld. These, whatever be their character and composition, make uptogether a _universitas juris_; and there is but little danger ofmistake in forming the notion, if we are only careful to remember thatduties enter into it quite as much as rights. Our duties mayoverbalance our rights. A man may owe more than he is worth, andtherefore if a money value is set on his collective legal relations hemay be what is called insolvent. But for all that the entire group ofrights and duties which centres in him is not the less a "jurisuniversitas. " We come next to a "universal succession. " A universal succession is asuccession to a _universitas juris_. It occurs when one man isinvested with the legal clothing of another, becoming at the samemoment subject to all his liabilities and entitled to all his rights. In order that the universal succession may be true and perfect, thedevolution must take place _uno ictu_, as the jurists phrase it. It isof course possible to conceive one man acquiring the whole of therights and duties of another at different periods, as for example bysuccessive purchases; or he might acquire them in differentcapacities, part as heir, part as purchaser, part as legatee. Butthough the group of rights and duties thus made up should in factamount to the whole legal personality of a particular individual, theacquisition would not be a universal succession. In order that theremay be a true universal succession, the transmission must be such asto pass the whole aggregate of rights and duties at the _same_ momentand in virtue of the _same_ legal capacity in the recipient. Thenotion of a universal succession, like that of a juris universitas, ispermanent in jurisprudence, though in the English legal system it isobscured by the great variety of capacities in which rights areacquired, and, above all, by the distinction between the two greatprovinces of English property, "realty" and "personalty. " Thesuccession of an assignee in bankruptcy to the entire property of thebankrupt is, however, a universal succession, though as the assigneeonly pays debts to the extent of the assets, this is only a modifiedform of the primary notion. Were it common among us for persons totake assignments of _all_ a man's property on condition of paying_all_ his debts, such transfers would exactly resemble the universalsuccessions known to the oldest Roman Law. When a Roman citizen_adrogated_ a son, _i. E. _ took a man, not already under PatriaPotestas, as his adoptive child, he succeeded _universally_ to theadoptive child's estate, _i. E. _ he took all the property and becameliable for all the obligations. Several other forms of universalsuccession appear in the primitive Roman Law, but infinitely the mostimportant and the most durable of all was that one with which we aremore immediately concerned, Hæreditas or Inheritance. Inheritance wasa universal succession occurring at a death. The universal successorwas Hæres or Heir. He stepped at once into all the rights and all theduties of the dead man. He was instantly clothed with his entire legalperson, and I need scarcely add that the special character of theHæres remained the same, whether he was named by a Will or whether hetook on an Intestacy. The term Hæres is no more emphatically used ofthe Intestate than of the Testamentary Heir, for the manner in which aman became Hæres had nothing to do with the legal character hesustained. The dead man's universal successor, however he became so, whether by Will or by Intestacy, was his Heir. But the Heir was notnecessarily a single person. A group of persons considered in law as asingle unit, might succeed as _co-heirs_ to the Inheritance. Let me now quote the usual Roman definition of an Inheritance. Thereader will be in a position to appreciate the full force of theseparate terms. _Hæreditas est successio in universum jus quoddefunctus habuit_ ("an inheritance is a succession to the entire legalposition of a deceased man"). The notion was that, though the physicalperson of the deceased had perished, his legal personality survivedand descended unimpaired on his Heir or Co-heirs, in whom his identity(so far as the law was concerned) was continued. Our own law, inconstituting the Executor or Administrator the representative of thedeceased to the extent of his personal assets, may serve as anillustration of the theory from which it emanated, but, although itillustrates, it does not explain it. The view of even the later RomanLaw required a closeness of correspondence between the position of thedeceased and of his Heir which is no feature of an Englishrepresentation; and in the primitive jurisprudence everything turnedon the continuity of succession. Unless provision was made in the willfor the instant devolution of the testator's rights and duties on theHeir or Co-heirs, the testament lost all its effect. In modern Testamentary jurisprudence, as in the later Roman law, theobject of first importance is the execution of the testator'sintentions. In the ancient law of Rome the subject of correspondingcarefulness was the bestowal of the Universal Succession. One of theserules seems to our eyes a principle dictated by common sense, whilethe other looks very much like an idle crotchet. Yet that without thesecond of them the first would never have come into being is ascertain as any proposition of the kind can be. In order to solve this apparent paradox, and to bring into greaterclearness the train of ideas which I have been endeavouring toindicate, I must borrow the results of the inquiry which was attemptedin the earlier portion of the preceding chapter. We saw onepeculiarity invariably distinguishing the infancy of society. Men areregarded and treated, not as individuals, but always as members of aparticular group. Everybody is first a citizen, and then, as acitizen, he is a member of his order--of an aristocracy or ademocracy, of an order of patricians or plebeians; or, in thosesocieties which an unhappy fate has afflicted with a specialperversion in their course of development, of a caste. Next, he is amember of a gens, house, or clan; and lastly, he is a member of his_family_. This last was the narrowest and most personal relation inwhich he stood; nor, paradoxical as it may seem, was he ever regardedas _himself_, as a distinct individual. His individuality wasswallowed up in his family. I repeat the definition of a primitivesociety given before. It has for its units, not individuals, butgroups of men united by the reality or the fiction of blood-relationship. It is in the peculiarities of an undeveloped society that we seize thefirst trace of a universal succession. Contrasted with theorganisation of a modern state, the commonwealths of primitive timesmay be fairly described as consisting of a number of little despoticgovernments, each perfectly distinct from the rest, each absolutelycontrolled by the prerogative of a single monarch. But though thePatriarch, for we must not yet call him the Pater-familias, had rightsthus extensive, it is impossible to doubt that he lay under an equalamplitude of obligations. If he governed the family, it was for itsbehoof. If he was lord of its possessions, he held them as trustee forhis children and kindred. He had no privilege or position distinctfrom that conferred on him by his relation to the petty commonwealthwhich he governed. The Family, in fact, was a Corporation; and he wasits representative or, we might almost say, its Public officer. Heenjoyed rights and stood under duties, but the rights and the dutieswere, in the contemplation of his fellow-citizens and in the eye ofthe law, quite as much those of the collective body as his own. Let usconsider for a moment the effect which would be produced by the deathof such a representative. In the eye of the law, in the view of thecivil magistrate, the demise of the domestic authority would be aperfectly immaterial event. The person representing the collectivebody of the family and primarily responsible to municipal jurisdictionwould bear a different name; and that would be all. The rights andobligations which attached to the deceased head of the house wouldattach, without breach of continuity, to his successor; for, in pointof fact, they would be the rights and obligations of the family, andthe family had the distinctive characteristic of a corporation--thatit never died. Creditors would have the same remedies against the newchieftain as against the old, for the liability being that of thestill existing family would be absolutely unchanged. All rightsavailable to the family would be as available after the demise of theheadship as before it--except that the Corporation would beobliged--if indeed language so precise and technical can be properlyused of these early times--would be obliged to _sue_ under a slightlymodified name. The history of jurisprudence must be followed in its whole course, ifwe are to understand how gradually and tardily society dissolveditself into the component atoms of which it is now constituted--bywhat insensible gradations the relation of man to man substituteditself for the relation of the individual to his family and offamilies to each other. The point now to be attended to is that evenwhen the revolution had apparently quite accomplished itself, evenwhen the magistrate had in great measure assumed the place of thePater-familias, and the civil tribunal substituted itself for thedomestic forum, nevertheless the whole scheme of rights and dutiesadministered by the judicial authorities remained shaped by theinfluence of the obsolete privileges and coloured in every part bytheir reflection. There seems little question that the devolution ofthe Universitas Juris, so strenuously insisted upon by the Roman Lawas the first condition of a testamentary or intestate succession, wasa feature of the older form of society which men's minds had beenunable to dissociate from the new, though with that newer phase it hadno true or proper connection. It seems, in truth, that theprolongation of a man's legal existence in his heir, or in a group ofco-heirs, is neither more nor less than a characteristic of _thefamily_ transferred by a fiction to _the individual_. Succession incorporations is necessarily universal, and the family was acorporation. Corporations never die. The decease of individual membersmakes no difference to the collective existence of the aggregate body, and does not in any way affect its legal incidents, its faculties orliabilities. Now in the idea of a Roman universal succession allthese qualities of a corporation seem to have been transferred to theindividual citizen. His physical death is allowed to exercise noeffect on the legal position which he filled, apparently on theprinciple that that position is to be adjusted as closely as possibleto the analogies of a family, which, in its corporate character, wasnot of course liable to physical extinction. I observe that not a few continental jurists have much difficulty incomprehending the nature of the connection between the conceptionsblended in a universal succession, and there is perhaps no topic inthe philosophy of jurisprudence on which their speculations, as ageneral rule, possess so little value. But the student of English lawought to be in no danger of stumbling at the analysis of the ideawhich we are examining. Much light is cast upon it by a fiction in ourown system with which all lawyers are familiar. English lawyersclassify corporations as Corporations aggregate and Corporations sole. A Corporation aggregate is a true Corporation, but a Corporation soleis an individual, being a member of a series of individuals, who isinvested by a fiction with the qualities of a Corporation. I needhardly cite the King or the Parson of a Parish as instances ofCorporations sole. The capacity or office is here considered apartfrom the particular person who from time to time may occupy it, and, this capacity being perpetual, the series of individuals who fill itare clothed with the leading attribute of Corporations--Perpetuity. Now in the older theory of Roman Law the individual bore to the familyprecisely the same relation which in the rationale of Englishjurisprudence a Corporation sole bears to a Corporation aggregate. Thederivation and association of ideas are exactly the same. In fact, ifwe say to ourselves that for purposes of Roman TestamentaryJurisprudence each individual citizen was a Corporation sole, we shallnot only realise the full conception of an inheritance, but haveconstantly at command the clue to the assumption in which itoriginated. It is an axiom with us that the King never dies, being aCorporation sole. His capacities are instantly filled by hissuccessor, and the continuity of dominion is not deemed to have beeninterrupted. With the Romans it seemed an equally simple and naturalprocess, to eliminate the fact of death from the devolution of rightsand obligations. The testator lived on in his heir or in the group ofhis co-heirs. He was in law the same person with them, and if any onein his testamentary dispositions had even constructively violated theprinciple which united his actual and his posthumous existence, thelaw rejected the defective instrument, and gave the inheritance to thekindred in blood, whose capacity to fulfil the conditions of heirshipwas conferred on them by the law itself, and not by any document whichby possibility might be erroneously framed. When a Roman citizen died intestate or leaving no valid Will, hisdescendants or kindred became his heirs according to a scale whichwill be presently described. The person or class of persons whosucceeded did not simply _represent_ the deceased, but, in conformitywith the theory just delineated, they _continued_ his civil life, hislegal existence. The same results followed when the order ofsuccession was determined by a Will, but the theory of the identitybetween the dead man and his heirs was certainly much older than anyform of Testament or phase of Testamentary jurisprudence. This indeedis the proper moment for suggesting a doubt which will press on uswith greater force the further we plumb the depths of thissubject, --whether _wills_ would ever have come into being at all if ithad not been for these remarkable ideas connected with universalsuccession. Testamentary law is the application of a principle whichmay be explained on a variety of philosophical hypotheses as plausibleas they are gratuitous; it is interwoven with every part of modernsociety, and it is defensible on the broadest grounds of generalexpediency. But the warning can never be too often repeated, that thegrand source of mistake in questions of jurisprudence is theimpression that those reasons which actuate us at the present moment, in the maintenance of an existing institution, have necessarilyanything in common with the sentiment in which the institutionoriginated. It is certain that, in the old Roman Law of Inheritance, the notion of a will or testament is inextricably mixed up, I mightalmost say confounded, with the theory of a man's posthumous existencein the person of his heir. The conception of a universal succession, firmly as it has taken rootin jurisprudence, has not occurred spontaneously to the framers ofevery body of laws. Wherever it is now found, it may be shown to havedescended from Roman law; and with it have come down a host of legalrules on the subject of Testaments and Testamentary gifts, whichmodern practitioners apply without discerning their relation to theparent theory. But, in the pure Roman jurisprudence, the principlethat a man lives on in his Heir--the elimination, if we may so speak, of the fact of death--is too obviously for mistake the centre roundwhich the whole Law of Testamentary and Intestate succession iscircling. The unflinching sternness of the Roman law in enforcingcompliance with the governing theory would in itself suggest that thetheory grew out of something in the primitive constitution of Romansociety; but we may push the proof a good way beyond the presumption. It happens that several technical expressions, dating from theearliest institution of Wills at Rome, have been accidentallypreserved to us. We have in Gaius the formula of investiture by whichthe universal successor was created. We have the ancient name by whichthe person afterwards called Heir was at first designated. We havefurther the text of the celebrated clause in the Twelve Tables bywhich the Testamentary power was expressly recognised, and the clausesregulating Intestate Succession have also been preserved. All thesearchaic phrases have one salient peculiarity. They indicate that whatpassed from the Testator to the Heir was the _Family_, that is, theaggregate of rights and duties contained in the Patria Potestas andgrowing out of it. The material property is in three instances notmentioned at all; in two others, it is visibly named as an adjunct orappendage of the Family. The original Will or Testament was thereforean instrument, or (for it was probably not at first in writing) aproceeding, by which the devolution of the _Family_ was regulated. Itwas a mode of declaring who was to have the chieftainship, insuccession to the Testator. When Wills are understood to have this fortheir original object, we see at once how it is that they came to beconnected with one of the most curious relics of ancient religion andlaw, the _sacra_, or Family Rites. These _sacra_ were the Roman formof an institution which shows itself wherever society has not whollyshaken itself free from its primitive clothing. They are thesacrifices and ceremonies by which the brotherhood of the family iscommemorated, the pledge and the witness of its perpetuity. Whateverbe their nature, --whether it be true or not that in all cases they arethe worship of some mythical ancestor, --they are everywhere employedto attest the sacredness of the family-relation; and therefore theyacquire prominent significance and importance, whenever the continuousexistence of the Family is endangered by a change in the person of itschief. Accordingly we hear most about them in connection with demisesof domestic sovereignty. Among the Hindoos, the right to inherit adead man's property is exactly co-extensive with the duty ofperforming his obsequies. If the rites are not properly performed ornot performed by the proper person, no relation is considered asestablished between the deceased and anybody surviving him; the Law ofSuccession does not apply, and nobody can inherit the property. Everygreat event in the life of a Hindoo seems to be regarded as leading upto and bearing upon those solemnities. If he marries, it is to havechildren who may celebrate them after his death; if he has nochildren, he lies under the strongest obligation to adopt them fromanother family, "with a view, " writes the Hindoo doctor, "to thefuneral cake, the water, and the solemn sacrifice. " The spherepreserved to the Roman _sacra_ in the time of Cicero, was not less inextent. It embraced Inheritances and Adoptions. No Adoption wasallowed to take place without due provision for the _sacra_ of thefamily from which the adoptive son was transferred, and no Testamentwas allowed to distribute an Inheritance without a strictapportionment of the expenses of these ceremonies among the differentco-heirs. The differences between the Roman law at this epoch, when weobtain our last glimpse of the _sacra_, and the existing Hindoosystem, are most instructive. Among the Hindoos, the religious elementin law has acquired a complete predominance. Family sacrifices havebecome the keystone of all the Law of Persons and much of the Law ofThings. They have even received a monstrous extension, for it is aplausible opinion that the self-immolation of the widow at herhusband's funeral, a practice continued to historical times by theHindoos, and commemorated in the traditions of several Indo-Europeanraces, was an addition grafted on the primitive _sacra_, under theinfluence of the impression, which always accompanies the idea ofsacrifice, that human blood is the most precious of all oblations. With the Romans, on the contrary, the legal obligation and thereligious duty have ceased to be blended. The necessity of solemnisingthe _sacra_ forms no part of the theory of civil law, but they areunder the separate jurisdiction of the College of Pontiffs. Theletters of Cicero to Atticus, which are full of allusions to them, leave no doubt that they constituted an intolerable burden onInheritances; but the point of development at which law breaks awayfrom religion has been passed, and we are prepared for their entiredisappearance from the later jurisprudence. In Hindoo law there is no such thing as a true Will. The place filledby Wills is occupied by Adoptions. We can now see the relation of theTestamentary Power to the Faculty of Adoption, and the reason why theexercise of either of them could call up a peculiar solicitude for theperformance of the _sacra_. Both a Will and an Adoption threaten adistortion of the ordinary course of Family descent, but they areobviously contrivances for preventing the descent being whollyinterrupted, when there is no succession of kindred to carry it on. Ofthe two expedients Adoption, the factitious creation ofblood-relationship, is the only one which has suggested itself to thegreater part of archaic societies. The Hindoos have indeed advancedone point on what was doubtless the antique practice, by allowing thewidow to adopt when the father has neglected to do so, and there arein the local customs of Bengal some faint traces of the Testamentarypowers. But to the Romans belongs pre-eminently the credit ofinventing the Will, the institution which, next to the Contract, hasexercised the greatest influence in transforming human society. Wemust be careful not to attribute to it in its earliest shape thefunctions which have attended it in more recent times. It was atfirst, not a mode of distributing a dead man's goods, but one amongseveral ways of transferring the representation of the household to anew chief. The goods descend no doubt to the Heir, but that is onlybecause the government of the family carries with it in its devolutionthe power of disposing of the common stock. We are very far as yetfrom that stage in the history of Wills in which they become powerfulinstruments in modifying society through the stimulus they give to thecirculation of property and the plasticity they produce in proprietaryrights. No such consequences as these appear in fact to have beenassociated with the Testamentary power even by the latest Romanlawyers. It will be found that Wills were never looked upon in theRoman community as a contrivance for parting Property and the Family, or for creating a variety of miscellaneous interests, but rather as ameans of making a better provision for the members of a household thancould be secured through the rules of Intestate succession. We maysuspect indeed that the associations of a Roman with the practice ofwill-making were extremely different from those familiar to usnowadays. The habit of regarding Adoption and Testation as modes ofcontinuing the Family cannot but have had something to do with thesingular laxity of Roman notions as to the inheritance of sovereignty. It is impossible not to see that the succession of the early RomanEmperors to each other was considered reasonably regular, and that, inspite of all that had occurred, no absurdity attached to thepretension of such Princes as Theodosius or Justinian to stylethemselves Cæsar and Augustus. When the phenomena of primitive societies emerge into light, it seemsimpossible to dispute a proposition which the jurists of theseventeenth century considered doubtful, that Intestate Inheritance isa more ancient institution than Testamentary Succession. As soon asthis is settled, a question of much interest suggests itself, how andunder what conditions were the directions of a will first allowed toregulate the devolution of authority over the household, andconsequently the posthumous distribution of property. The difficultyof deciding the point arises from the rarity of Testamentary power inarchaic communities. It is doubtful whether a true power of testationwas known to any original society except the Roman. Rudimentary formsof it occur here and there, but most of them are not exempt from thesuspicion of a Roman origin. The Athenian will was, no doubt, indigenous, but then, as will appear presently, it was only aninchoate Testament. As to the Wills which are sanctioned by the bodiesof law which have descended to us as the codes of the barbarianconquerors of Imperial Rome, they are almost certainly Roman. The mostpenetrating German criticism has recently been directed to these_leges Barbarorum_, the great object of investigation being to detachthose portions of each system which formed the customs of the tribe inits original home from the adventitious ingredients which wereborrowed from the laws of the Romans. In the course of this process, one result has invariably disclosed itself, that the ancient nucleusof the code contains no trace of a Will. Whatever testamentary lawexists, has been taken from Roman jurisprudence. Similarly, therudimentary Testament which (as I am informed) the Rabbinical Jewishlaw provides for, has been attributed to contact with the Romans. Theonly form of testament, not belonging to a Roman or Hellenic society, which can reasonably be supposed indigenous, is that recognised by theusages of the province of Bengal; and the testament of Bengal is onlya rudimentary Will. The evidence, however, such as it is, seems to point to the conclusionthat Testaments are at first only allowed to take effect on failure ofthe persons entitled to have the inheritance by right of blood genuineor fictitious. Thus, when Athenian citizens were empowered for thefirst time by the Laws of Solon to execute Testaments, they wereforbidden to disinherit their direct male descendants. So, too, theWill of Bengal is only permitted to govern the succession so far as itis consistent with certain overriding claims of the family. Again, theoriginal institutions of the Jews having provided nowhere for theprivileges of Testatorship, the later Rabbinical jurisprudence, whichpretends to supply the _casus omissi_ of the Mosaic law, allows thePower of Testation to attach when all the kindred entitled under theMosaic system to succeed have failed or are undiscoverable. Thelimitations by which the ancient German codes hedge in thetestamentary jurisprudence which has been incorporated with them arealso significant, and point in the same direction. It is thepeculiarity of most of these German laws, in the only shape in whichwe know them, that, besides the _allod_ or domain of each household, they recognise several subordinate kinds or orders of property, eachof which probably represents a separate transfusion of Romanprinciples into the primitive body of Teutonic usage. The primitiveGerman or allodial property is strictly reserved to the kindred. Notonly is it incapable of being disposed of by testament but it isscarcely capable of being alienated by conveyance _inter vivos_. Theancient German law, like the Hindoo jurisprudence, makes the malechildren co-proprietors with their father, and the endowment of thefamily cannot be parted with except by the consent of all its members. But the other sorts of property, of more modern origin and lowerdignity than the allodial possessions, are much more easily alienatedthan they, and follow much more lenient rules of devolution. Womenand the descendants of women succeed to them, obviously on theprinciple that they lie outside the sacred precinct of the Agnaticbrotherhood. Now, it is on these last descriptions of property, and onthese only, that the Testaments borrowed from Rome were at firstallowed to operate. These few indications may serve to lend additional plausibility tothat which in itself appears to be the most probable explanation of anascertained fact in the early history of Roman Wills. We have itstated on abundant authority that Testaments, during the primitiveperiod of the Roman State, were executed in the Comitia Calata, thatis, in the Comitia Curiata, or Parliament of the Patrician Burghers ofRome, when assembled for Private Business. This mode of execution hasbeen the source of the assertion, handed down by one generation ofcivilians to another, that every Will at one era of Roman history wasa solemn legislative enactment. But there is no necessity whatever forresorting to an explanation which has the defect of attributing fartoo much precision to the proceedings of the ancient assembly. Theproper key to the story concerning the execution of Wills in theComitia Calata must no doubt be sought in the oldest Roman Law of_intestate_ succession. The canons of primitive Roman jurisprudenceregulating the inheritance of relations from each other were, so longas they remained unmodified by the Edictal Law of the Prætor, to thefollowing effect:--First, the _sui_ or direct descendants who hadnever been emancipated succeeded. On the failure of the _sui_, theNearest Agnate came into their place, that is, the nearest person orclass of the kindred who was or might have been under the same PatriaPotestas with the deceased. The third and last degree came next, inwhich the inheritance devolved on the _gentiles_, that is on thecollective members of the dead man's _gens_ or _House_. The House, Ihave explained already, was a fictitious extension of the family, consisting of all Roman Patrician citizens who bore the same name, andwho, on the ground of bearing the same name, were supposed to bedescended from a common ancestor. Now the Patrician Assembly calledthe Comitia Curiata was a Legislature in which Gentes or Houses wereexclusively represented. It was a representative assembly of the Romanpeople, constituted on the assumption that the constituent unit of thestate was the Gens. This being so, the inference seems inevitable, that the cognizance of Wills by the Comitia was connected with therights of the Gentiles, and was intended to secure them in theirprivilege of ultimate inheritance. The whole apparent anomaly isremoved, if we suppose that a Testament could only be made when thetestator had no _gentiles_ discoverable, or when they waived theirclaims, and that every Testament was submitted to the General Assemblyof the Roman Gentes, in order that those aggrieved by its dispositionsmight put their veto upon it if they pleased, or by allowing it topass might be presumed to have renounced their reversion. It ispossible that on the eve of the publication of the Twelve Tables thisvetoing power may have been greatly curtailed or only occasionally andcapriciously exercised. It is much easier, however, to indicate themeaning 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 tracedis not, however, the Testament executed in the Calata Comitia, butanother Testament designed to compete with it and destined tosupersede it. The historical importance of this early Roman Will, andthe light it casts on much of ancient thought, will excuse me fordescribing it at some length. When the Testamentary power first discloses itself to us in legalhistory, there are signs that, like almost all the great Romaninstitutions, it was the subject of contention between the Patriciansand the Plebeians. The effect of the political maxim, _Plebs Gentemnon habet_, "a Plebeian cannot be a member of a House, " was entirelyto exclude the Plebeians from the Comitia Curiata. Some critics haveaccordingly supposed that a Plebeian could not have his Will read orrecited to the Patrician Assembly, and was thus deprived ofTestamentary privileges altogether. Others have been satisfied topoint out the hardships of having to submit a proposed Will to theunfriendly jurisdiction of an assembly in which the Testator was notrepresented. Whatever be the true view, a form of Testament came intouse, which has all the characteristics of a contrivance intended toevade some distasteful obligation. The Will in question was aconveyance _inter vivos_, a complete and irrevocable alienation of theTestator's family and substance to the person whom he meant to be hisheir. The strict rules of Roman law must always have permitted such analienation, but, when the transaction was intended to have aposthumous effect, there may have been disputes whether it was validfor Testamentary purposes without the formal assent of the PatricianParliament. If a difference of opinion existed on the point betweenthe two classes of the Roman population, it was extinguished, withmany other sources of heartburning, by the great Decemviralcompromise. The text of the Twelve Tables is still extant which says, "_Pater familias uti de pecuniâ tutelâve rei suæ legâssit, ita jusesto_"--a law which can hardly have had any other object than thelegalisation of the Plebeian Will. It is well known to scholars that, centuries after the PatricianAssembly had ceased to be the legislature of the Roman State, it stillcontinued to hold formal sittings for the convenience of privatebusiness. Consequently, at a period long subsequent to the publicationof the Decemviral Law, there is reason to believe that the ComitiaCalata still assembled for the validation of Testaments. Its probablefunctions may be best indicated by saying that it was a Court ofRegistration, with the understanding however that the Wills exhibitedwere not _enrolled_, but simply recited to the members, who weresupposed to take note of their tenor and to commit them to memory. Itis very likely that this form of Testament was never reduced towriting at all, but at all events if the Will had been originallywritten, the office of the Comitia was certainly confined to hearingit read aloud, the document being retained afterwards in the custodyof the Testator, or deposited under the safeguard of some religiouscorporation. This publicity may have been one of the incidents of theTestament executed in the Comitia Calata which brought it into populardisfavour. In the early years of the Empire the Comitia still held itsmeetings, but they seem to have lapsed into the merest form, and fewWills, or none, were probably presented at the periodical sitting. It is the ancient Plebeian Will--the alternative of the Testament justdescribed--which in its remote effects has deeply modified thecivilisation of the modern world. It acquired at Rome all thepopularity which the Testament submitted to the Calata Comitia appearsto have lost. The key to all its characteristics lies in its descentfrom the _mancipium_, or ancient Roman conveyance, a proceeding towhich we may unhesitatingly assign the parentage of two greatinstitutions without which modern society can scarcely be supposedcapable of holding together, the Contract and the Will. The_mancipium_, or as the word would exhibit itself in later Latinity, the Mancipation, carries us back by its incidents to the infancy ofcivil society. As it sprang from times long anterior, if not to theinvention, at all events to the popularisation, of the art of writing, gestures, symbolical acts, and solemn phrases take the place ofdocumentary forms, and a lengthy and intricate ceremonial is intendedto call the attention of the parties to the importance of thetransaction, and to impress it on the memory of the witnesses. Theimperfection too of oral, as compared with written, testimonynecessitates the multiplication of the witnesses and assistants beyondwhat in later times would be reasonable or intelligible limits. The Roman Mancipation required the presence first of all of theparties, the vendor and vendee, or we should perhaps rather say, if weare to use modern legal language, the grantor and grantee. There werealso no less than _five_ witnesses; and an anomalous personage, theLibripens, who brought with him a pair of scales to weigh the uncoinedcopper money of ancient Rome. The Testament we are considering--theTestament _per æs et libram_, "with the copper and the scales, " as itlong continued to be technically called--was an ordinary Mancipationwith no change in the form and hardly any in words. The Testator wasthe grantor; the five witnesses and the libripens were present; andthe place of grantee was taken by a person known technically as the_familiæ emptor_, the Purchaser of the Family. The ordinary ceremonyof a Mancipation was then proceeded with. Certain formal gestures weremade and sentences pronounced. The _Emptor familiæ_ simulated thepayment of a price by striking the scales with a piece of money, andfinally the Testator ratified what had been done in a set form ofwords called the "Nuncupatio" or publication of the transaction, aphrase which, I need scarcely remind the lawyer, has had a longhistory in Testamentary jurisprudence. It is necessary to attendparticularly to the character of the person called _familiæ emptor_. There is no doubt that at first he was the Heir himself. The Testatorconveyed to him outright his whole "familia, " that is, all the rightshe enjoyed over and through the family; his property, his slaves, andall his ancestral privileges, together, on the other hand, with allhis duties and obligations. With these data before us, we are able to note several remarkablepoints in which the Mancipatory Testament, as it may be called, differed in its primitive form from a modern will. As it amounted to aconveyance _out-and-out_ of the Testator's estate, it was not_revocable_. There could be no new exercise of a power which had beenexhausted. Again, it was not secret. The Familiæ Emptor, being himself the Heir, knew exactly what his rights were, and was aware that he wasirreversibly entitled to the inheritance; a knowledge which theviolences inseparable from the best-ordered ancient society renderedextremely dangerous. But perhaps the most surprising consequence ofthis relation of Testaments to Conveyances was the immediate vestingof the inheritance in the Heir. This has seemed so incredible to not afew civilians, that they have spoken of the Testator's estate asvesting conditionally on the Testator's death or as granted to himfrom a time uncertain, _i. E. _ the death of the grantor. But down tothe latest period of Roman jurisprudence there was a certain class oftransactions which never admitted of being directly modified by acondition, or of being limited to or from a point of time. Intechnical language they did not admit _conditio_ or _dies_. Mancipation was one of them, and therefore, strange as it may seem, weare forced to conclude that the primitive Roman Will took effect atonce, even though the Testator survived his act of Testation. It isindeed likely that Roman citizens originally made their Wills only inthe article of death, and that a provision for the continuance of theFamily effected by a man in the flower of life would take the formrather of an Adoption than of a Will. Still we must believe that, ifthe Testator did recover, he could only continue to govern hishousehold by the sufferance of his Heir. Two or three remarks should be made before I explain how theseinconveniences were remedied, and how Testaments came to be investedwith the characteristics now universally associated with them. TheTestament was not necessarily written: at first, it seems to have beeninvariably oral, and, even in later times, the instrument declaratoryof the bequests was only incidentally connected with the Will andformed no essential part of it. It bore in fact exactly the samerelation to the Testament, which the deed leading the uses bore to theFines and Recoveries of old English law, or which the charter offeoffment bore to the feoffment itself. Previously, indeed, to theTwelve Tables, no writing would have been of the slightest use, forthe Testator had no power of giving legacies, and the only persons whocould be advantaged by a will were the Heir or Co-heirs. But theextreme generality of the clause in the Twelve Tables soon producedthe doctrine that the Heir must take the inheritance burdened by anydirections which the Testator might give him, or in other words, takeit subject to legacies. Written testamentary instruments assumedthereupon a new value, as a security against the fraudulent refusal ofthe heir to satisfy the legatees; but to the last it was at theTestator's pleasure to rely exclusively on the testimony of thewitnesses, and to declare by word of mouth the legacies which the_familiæ emptor_ was commissioned to pay. The terms of the expression _Emptor familiæ_ demand notice. "Emptor"indicates that the Will was literally a sale, and the word "familiæ, "when compared with the phraseology in the Testamentary clause in theTwelve Tables, leads us to some instructive conclusions. "Familia, " inclassical Latinity, means always a man's slaves. Here, however, andgenerally in the language of ancient Roman law, it includes allpersons under his Potestas, and the Testator's material property orsubstance is understood to pass as an adjunct or appendage of hishousehold. Turning to the law of the Twelve Tables, it will be seenthat it speaks of _tutela rei suæ_, "the guardianship of hissubstance, " a form of expression which is the exact reverse of thephrase just examined. There does not therefore appear to be any modeof escaping from the conclusion, that, even at an era so comparativelyrecent as that of the Decemviral compromise, terms denoting"household" and "property" were blended in the current phraseology. Ifa man's household had been spoken of as his property we might haveexplained the expression as pointing to the extent of the PatriaPotestas, but, as the interchange is reciprocal, we must allow thatthe form of speech carries us back to that primeval period in whichproperty is owned by the family, and the family is governed by thecitizen, so that the members of the community do not own theirproperty _and_ their family, but rather own their property _through_their family. At an epoch not easy to settle with precision, the Roman Prætors fellinto the habit of acting upon Testaments solemnised in closerconformity with the spirit than the letter of the law. Casualdispensations became insensibly the established practice, till atlength a wholly new form of Will was matured and regularly engraftedon the Edictal Jurisprudence. The new or _Prætorian_ Testament derivedthe whole of its impregnability from the _Jus Honorarium_ or Equity ofRome. The Prætor of some particular year must have inserted a clausein his inaugural Proclamation declaratory of his intention to sustainall Testaments which should have been executed with such and suchsolemnities; and, the reform having been found advantageous, thearticle relating to it must have been again introduced by the Prætor'ssuccessor, and repeated by the next in office, till at length itformed a recognised portion of that body of jurisprudence which fromthese successive incorporations was styled the Perpetual or ContinuousEdict. On examining the conditions of a valid Prætorian Will they willbe plainly seen to have been determined by the requirements of theMancipatory Testament, the innovating Prætor having obviouslyprescribed to himself the retention of the old formalities just so faras they were warrants of genuineness or securities against fraud. Atthe execution of the Mancipatory Testament seven persons had beenpresent besides the Testator. Seven witnesses were accordinglyessential to the Prætorian Will: two of them corresponding to the_libripens_ and _familiæ emptor_, who were now stripped of theirsymbolical character, and were merely present for the purpose ofsupplying their testimony. No emblematic ceremony was gone through;the Will was merely recited; but then it is probable (though notabsolutely certain) that a written instrument was necessary toperpetuate the evidence of the Testator's dispositions. At all events, whenever a writing was read or exhibited as a person's last Will, weknow certainly that the Prætorian Court would not sustain it byspecial intervention, unless each of the seven witnesses had severallyaffixed his seal to the outside. This is the first appearance of_sealing_ in the history of jurisprudence, considered as a mode ofauthentication. It is to be observed that the seals of Roman Wills, and other documents of importance, did not simply serve as the indexof the presence or assent of the signatory, but were literallyfastenings which had to be broken before the writing could beinspected. The Edictal Law would therefore enforce the dispositions of aTestator, when, instead of being symbolised through the forms ofmancipation, they were simply evidenced by the seals of sevenwitnesses. But it may be laid down as a general proposition, that theprincipal qualities of Roman property were incommunicable exceptthrough processes which were supposed to be coeval with the origin ofthe Civil Law. The Prætor therefore could not confer an _Inheritance_on anybody. He could not place the Heir or Co-heirs in that veryrelation in which the Testator had himself stood to his own rights andobligations. All he could do was to confer on the person designated asHeir the practical enjoyment of the property bequeathed, and to givethe force of legal acquittances to his payments of the Testator'sdebts. When he exerted his powers to these ends, the Prætor wastechnically said to communicate the _Bonorum Possessio_. The Heirspecially inducted under these circumstances, or _Bonorum Possessor_, had every proprietary privilege of the Heir by the Civil Law. He tookthe profits and he could alienate, but then, for all his remedies forredress against wrong, he must go, as we should phrase it, not to theCommon Law, but to the Equity side of the Prætorian Court. No greatchance of error would be incurred by describing him as having an_equitable_ estate in the inheritance; but then, to secure ourselvesagainst being deluded by the analogy, we must always recollect that inone year the _Bonorum Possessio_ was operated upon a principle ofRoman Law known as Usucapion, and the Possessor became Quiritarianowner of all the property comprised in the inheritance. We know too little of the older law of Civil Process to be able tostrike the balance of advantage and disadvantage between the differentclasses of remedies supplied by the Prætorian Tribunal. It is certain, however, that, in spite of its many defects, the Mancipatory Testamentby which the _universitas juris_ devolved at once and unimpaired wasnever entirely superseded by the new Will; and at a period lessbigoted to antiquarian forms, and perhaps not quite alive to theirsignificance, all the ingenuity of the Jurisconsults seems to havebeen expended on the improvement of the more venerable instrument. Atthe era of Gaius, which is that of the Antonine Cæsars, the greatblemishes of the Mancipatory Will had been removed. Originally, as wehave seen, the essential character of the formalities had requiredthat the Heir himself should be the Purchaser of the Family, and theconsequence was that he not only instantly acquired a vested interestin the Testator's Property, but was formally made aware of his rights. But the age of Gaius permitted some unconcerned person to officiate asPurchaser of the Family. The heir, therefore, was not necessarilyinformed of the succession to which he was destined; and Willsthenceforward acquired the property of _secrecy_. The substitution ofa stranger for the actual Heir in the functions of "Familiæ Emptor"had other ulterior consequences. As soon as it was legalised, a RomanTestament came to consist of two parts or stages--a conveyance, whichwas a pure form, and a Nuncupatio, or Publication. In this latterpassage of the proceeding, the Testator either orally declared to theassistants the wishes which were to be executed after his death, orproduced a written document in which his wishes were embodied. It wasnot probably till attention had been quite drawn off from theimaginary Conveyance, and concentrated on the Nuncupation as theessential part of the transaction, that Wills were allowed to become_revocable_. I have thus carried the pedigree of Wills some way down in legalhistory. The root of it is the old Testament "with the copper and thescales, " founded on a Mancipation or Conveyance. This ancient Willhas, however, manifold defects, which are remedied, though onlyindirectly, by the Prætorian law. Meantime the ingenuity of theJurisconsults effects, in the Common-Law Will or MancipatoryTestament, the very improvements which the Prætor may haveconcurrently carried out in Equity. These last ameliorations depend, however, on mere legal dexterity, and we see accordingly that theTestamentary Law of the day of Gaius or Ulpian is only transitional. What changes next ensued we know not; but at length, just before thereconstruction of the jurisprudence by Justinian, we find the subjectsof the Eastern Roman Empire employing a form of Will of which thepedigree is traceable to the Prætorian Testament on one side, and tothe Testament "with the copper and the scales" on the other. Like theTestament of the Prætor, it required no Mancipation, and was invalidunless sealed by seven witnesses. Like the Mancipatory Will, it passedthe Inheritance and not merely a _Bonorum Possessio_. Several, however, of its most important features were annexed by positiveenactments, and it is out of regard to this threefold derivation fromthe Prætorian Edict, from the Civil Law, and from the ImperialConstitutions, that Justinian speaks of the Law of Wills in his ownday as _Jus Tripertitum_. The new Testament thus described is the onegenerally known as the Roman Will. But it was the Will of the EasternEmpire only; and the researches of Savigny have shown that in WesternEurope the old Mancipatory Testament, with all its apparatus ofconveyance, copper, and scales, continued to be the form in use fardown in the Middle Ages. CHAPTER VII ANCIENT AND MODERN IDEAS RESPECTING WILLS AND SUCCESSIONS Although there is much in the modern European Law of Wills which isintimately connected with the oldest rules of Testamentary dispositionpractised among men, there are nevertheless some important differencesbetween ancient and modern ideas on the subject of Wills andSuccessions. Some of the points of difference I shall endeavour toillustrate in this chapter. At a period, removed several centuries from the era of the TwelveTables, we find a variety of rules engrafted on the Roman Civil Lawwith the view of limiting the disinherison of children; we have thejurisdiction of the Prætor very actively exerted in the same interest;and we are also presented with a new remedy, very anomalous incharacter and of uncertain origin, called the Querela InofficiosiTestamenti, "the Plaint of an Unduteous Will, " directed to thereinstatement of the issue in inheritances from which they had beenunjustifiably excluded by a father's Testament. Comparing thiscondition of the law with the text of the Twelve Tables which concedesin terms the utmost liberty of Testation, several writers have beentempted to interweave a good deal of dramatic incident into theirhistory of the Law Testamentary. They tell us of the boundless licenseof disinherison in which the heads of families instantly began toindulge, of the scandal and injury to public morals which the newpractices engendered, and of the applause of all good men which hailedthe courage of the Prætor in arresting the progress of paternaldepravity. This story, which is not without some foundation for theprincipal fact it relates, is often so told as to disclose veryserious misconceptions of the principles of legal history. The Law ofthe Twelve Tables is to be explained by the character of the age inwhich it was enacted. It does not license a tendency which a later erathought itself bound to counteract, but it proceeds on the assumptionthat no such tendency exists, or, perhaps we should say, in ignoranceof the possibility of its existence. There is no likelihood that Romancitizens began immediately to avail themselves freely of the power todisinherit. It is against all reason and sound appreciation of historyto suppose that the yoke of family bondage, still patiently submittedto, as we know, where its pressure galled most cruelly, would be castoff in the very particular in which its incidence in our own day isnot otherwise than welcome. The Law of the Twelve Tables permitted theexecution of Testaments in the only case in which it was thoughtpossible that they could be executed, viz. On failure of children andproximate kindred. It did not forbid the disinherison of directdescendants, inasmuch as it did not legislate against a contingencywhich no Roman lawgiver of that era could have contemplated. No doubt, as the offices of family affection progressively lost the aspect ofprimary personal duties, the disinherison of children was occasionallyattempted. But the interference of the Prætor, so far from beingcalled for by the universality of the abuse, was doubtless firstprompted by the fact that such instances of unnatural caprice were fewand exceptional, and at conflict with the current morality. The indications furnished by this part of Roman Testamentary Law areof a very different kind. It is remarkable that a Will never seems tohave been regarded by the Romans as a means of _disinheriting_ aFamily, or of effecting the unequal distribution of a patrimony. Therules of law preventing its being turned to such a purpose, increasein number and stringency as the jurisprudence unfolds itself; andthese rules correspond doubtless with the abiding sentiment of Romansociety, as distinguished from occasional variations of feeling inindividuals. It would rather seem as if the Testamentary Power werechiefly valued for the assistance it gave in _making provision_ for aFamily, and in dividing the inheritance more evenly and fairly thanthe Law of Intestate Succession would have divided it. If this be thetrue reading of the general sentiment on the point, it explains tosome extent the singular horror of Intestacy which alwayscharacterised the Roman. No evil seems to have been considered aheavier visitation than the forfeiture of Testamentary privileges; nocurse appears to have been bitterer than that which imprecated on anenemy that he might die without a Will. The feeling has nocounterpart, or none that is easily recognisable, in the forms ofopinion which exist at the present day. All men at all times willdoubtless prefer chalking out the destination of their substance tohaving that office performed for them by the law; but the Romanpassion for Testacy is distinguished from the mere desire to indulgecaprice by its intensity; and it has of course nothing whatever incommon with that pride of family, exclusively the creation offeudalism, which accumulates one description of property in the handsof a single representative. It is probable, _à priori_, that it wassomething in the rules of Intestate Succession which caused thisvehement preference for the distribution of property under a Testamentover its distribution by law. The difficulty, however, is, that onglancing at the Roman Law of Intestate Succession, in the form whichit wore for many centuries before Justinian shaped it into that schemeof inheritance which has been almost universally adopted by modernlawgivers, it by no means strikes one as remarkably unreasonable orinequitable. On the contrary, the distribution it prescribes is sofair and rational, and differs so little from that with which modernsociety has been generally contented, that no reason suggests itselfwhy it should have been regarded with extraordinary distaste, especially under a jurisprudence which pared down to a narrow compassthe testamentary privileges of persons who had children to providefor. We should rather have expected that, as in France at this moment, the heads of families would generally save themselves the trouble ofexecuting a Will, and allow the Law to do as it pleased with theirassets. I think, however, if we look a little closely at thepre-Justinianean scale of Intestate Succession, we shall discover thekey to the mystery. The texture of the law consists of two distinctparts. One department of rules comes from the Jus Civile, theCommon-Law of Rome; the other from the Edict of the Prætor. The CivilLaw, as I have already stated for another purpose, calls to theinheritance only three orders of successors in their turn; theUnemancipated children, the nearest class of Agnatic kindred, and theGentiles. Between these three orders, the Prætor interpolates variousclasses of relatives, of whom the Civil Law took no notice whatever. Ultimately, the combination of the Edict and of the Civil Law forms atable of succession not materially different from that which hasdescended to the generality of modern codes. The point for recollection is that there must anciently have been atime at which the rules of the Civil Law determined the scheme ofIntestate Succession exclusively, and at which the arrangements of theEdict were non-existent, or not consistently carried out. We cannotdoubt that, in its infancy, the Prætorian jurisprudence had to contendwith formidable obstructions, and it is more than probable that, longafter popular sentiment and legal opinion had acquiesced in it, themodifications which it periodically introduced were governed by nocertain principles, and fluctuated with the varying bias of successivemagistrates. The rules of Intestate Succession, which the Romans mustat this period have practised, account, I think--and more thanaccount--for that vehement distaste for an Intestacy to which Romansociety during so many ages remained constant. The order of successionwas this: on the death of a citizen, having no will or no valid will, his Unemancipated children became his Heirs. His _emancipated_ sonshad no share in the inheritance. If he left no direct descendantsliving at his death, the nearest grade of the Agnatic kindredsucceeded, but no part of the inheritance was given to any relativeunited (however closely) with the dead man through female descents. All the other branches of the family were excluded, and theinheritance escheated to the _Gentiles_, or entire body of Romancitizens bearing the same name with the deceased. So that on failingto execute an operative Testament, a Roman of the era underexamination left his emancipated children absolutely withoutprovision, while, on the assumption that he died childless, there wasimminent risk that his possessions would escape from the familyaltogether, and devolve on a number of persons with whom he was merelyconnected by the sacerdotal fiction that assumed all members of thesame _gens_ to be descended from a common ancestor. The prospect ofsuch an issue is in itself a nearly sufficient explanation of thepopular sentiment; but, in point of fact, we shall only halfunderstand it, if we forget that the state of things I have beendescribing is likely to have existed at the very moment when Romansociety was in the first stage of its transition from its primitiveorganisation in detached families. The empire of the father had indeedreceived one of the earliest blows directed at it through therecognition of Emancipation as a legitimate usage, but the law, stillconsidering the Patria Potestas to be the root of family connection, persevered in looking on the emancipated children as strangers to therights of Kinship and aliens from the blood. We cannot, however, for amoment suppose that the limitations of the family imposed by legalpedantry had their counterpart in the natural affection of parents. Family attachments must still have retained that nearly inconceivablesanctity and intensity which belonged to them under the Patriarchalsystem; and, so little are they likely to have been extinguished bythe act of emancipation, that the probabilities are altogether theother way. It may be unhesitatingly taken for granted thatenfranchisement from the father's power was a demonstration, ratherthan a severance, of affection--a mark of grace and favour accorded tothe best-beloved and most esteemed of the children. If sons thushonoured above the rest were absolutely deprived of their heritage byan Intestacy, the reluctance to incur it requires no fartherexplanation. We might have assumed _à priori_ that the passion forTestacy was generated by some moral injustice entailed by the rules ofIntestate succession; and here we find them at variance with the veryinstinct by which early society was cemented together. It is possibleto put all that has been urged in a very succinct form. Every dominantsentiment of the primitive Romans was entwined with the relations ofthe family. But what was the Family? The Law defined it oneway--natural affection another. In the conflict between the two, thefeeling we would analyse grew up, taking the form of an enthusiasm forthe institution by which the dictates of affection were permitted todetermine the fortunes of its objects. I regard, therefore, the Roman horror of Intestacy as a monument of avery early conflict between ancient law and slowly changing ancientsentiment on the subject of the Family. Some passages in the RomanStatute-Law, and one statute in particular which limited the capacityfor inheritance possessed by women, must have contributed to keepalive the feeling; and it is the general belief that the system ofcreating Fidei-Commissa, or bequests in trust, was devised to evadethe disabilities imposed by those statutes. But the feeling itself, inits remarkable intensity, seems to point back to some deeperantagonism between law and opinion; nor is it at all wonderful thatthe improvements of jurisprudence by the Prætor should not haveextinguished it. Everybody conversant with the philosophy of opinionis aware that a sentiment by no means dies out, of necessity, with thepassing away of the circumstances which produced it. It may longsurvive them; nay, it may afterwards attain to a pitch and climax ofintensity which it never attained during their actual continuance. The view of a Will which regards it as conferring the power ofdiverting property from the Family, or of distributing it in suchuneven proportions as the fancy or good sense of the Testator maydictate, is not older than that later portion of the Middle Ages inwhich Feudalism had completely consolidated itself. When modernjurisprudence first shows itself in the rough, Wills are rarelyallowed to dispose with absolute freedom of a dead man's assets. Wherever at this period the descent of property was regulated byWill--and over the greater part of Europe moveable or personalproperty was the subject of Testamentary disposition--the exercise ofthe Testamentary power was seldom allowed to interfere with the rightof the widow to a definite share, and of the children to certain fixedproportions, 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 theChurch, which never relaxed its solicitude for the interest of wivessurviving their husbands--winning, perhaps, one of the most arduous ofits triumphs when, after exacting for two or three centuries anexpress promise from the husband at marriage to endow his wife, it atlength succeeded in engrafting the principle of Dower on the CustomaryLaw of all Western Europe. Curiously enough, the dower of lands proveda more stable institution than the analogous and more ancientreservation of certain shares of the personal property to the widowand children. A few local customs in France maintained the right downto the Revolution, and there are traces of similar usages in England;but on the whole the doctrine prevailed that moveables might be freelydisposed of by Will, and, even when the claims of the widow continuedto be respected, the privileges of the children were obliterated fromjurisprudence. We need not hesitate to attribute the change to theinfluence of Primogeniture. As the Feudal law of land practicallydisinherited all the children in favour of one, the equaldistribution even of those sorts of property which might have beenequally divided ceased to be viewed as a duty. Testaments were theprincipal instruments employed in producing inequality, and in thiscondition of things originated the shade of difference which showsitself between the ancient and the modern conception of a Will. But, though the liberty of bequest, enjoyed through Testaments, was thus anaccidental fruit of Feudalism, there is no broader distinction thanthat which exists between a system of free Testamentary dispositionand a system, like that of the Feudal land-law, under which propertydescends compulsorily in prescribed lines of devolution. This truthappears to have been lost sight of by the authors of the French Codes. In the social fabric which they determined to destroy, they sawPrimogeniture resting chiefly on Family settlements, but they alsoperceived that Testaments were frequently employed to give the eldestson precisely the same preference which was reserved to him under thestrictest of entails. In order, therefore, to make sure of their work, they not only rendered it impossible to prefer the eldest son to therest in marriage-arrangements, but they almost expelled Testamentarysuccession from the law, lest it should be used to defeat theirfundamental principle of an equal distribution of property amongchildren at the parent's death. The result is that they haveestablished a system of small perpetual entails, which is infinitelynearer akin to the system of feudal Europe than would be a perfectliberty of bequest. The land-law of England, "the Herculaneum ofFeudalism, " is certainly much more closely allied to the land-law ofthe Middle Ages than that of any Continental country, and Wills withus are frequently used to aid or imitate that preference of the eldestson and his line which is a nearly universal feature in marriagesettlements of real property. But nevertheless feeling and opinion inthis country have been profoundly affected by the practice of freeTestamentary disposition; and it appears to me that the state ofsentiment in a great part of French society, on the subject of theconservation of property in families, is much liker that whichprevailed through Europe two or three centuries ago than are thecurrent opinions of Englishmen. The mention of Primogeniture introduces one of the most difficultproblems of historical jurisprudence. Though I have not paused toexplain my expressions, it may have been noticed that I havefrequently spoken of a number of "co-heirs" as placed by the Roman Lawof Succession on the same footing with a single Heir. In point offact, we know of no period of Roman jurisprudence at which the placeof the Heir, or Universal Successor, might not have been taken by agroup of co-heirs. This group succeeded as a single unit, and theassets were afterwards divided among them in a separate legalproceeding. When the Succession was _ab intestato_, and the groupconsisted of the children of the deceased, they each took an equalshare of the property; nor, though males had at one time someadvantages 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 ceaseto hold together through a series of generations, the idea whichspontaneously suggests itself is to divide the domain equally amongthe members of each successive generation, and to reserve no privilegeto the eldest son or stock. Some peculiarly significant hints as tothe close relation of this phenomenon to primitive thought arefurnished by systems yet more archaic than the Roman. Among theHindoos, the instant a son is born, he acquires a vested right in hisfather's property, which cannot be sold without recognition of hisjoint ownership. On the son's attaining full age, he can sometimescompel a partition of the estate even against the consent of theparent; and, should the parent acquiesce, one son can always have apartition even against the will of the others. On such partitiontaking place, the father has no advantage over his children, exceptthat he has two of the shares instead of one. The ancient law of theGerman tribes was exceedingly similar. The _allod_ or domain of thefamily was the joint-property of the father and his sons. It does not, however, appear to have been habitually divided even at the death ofthe parent, and in the same way the possessions of a Hindoo, howeverdivisible theoretically, are so rarely distributed in fact, that manygenerations constantly succeed each other without a partition takingplace, and thus the Family in India has a perpetual tendency to expandinto the Village Community, under conditions which I shall hereafterattempt to elucidate. All this points very clearly to the absolutelyequal division of assets among the male children at death as thepractice most usual with society at the period when family-dependencyis in the first stages of disintegration. Here then emerges thehistorical difficulty of Primogeniture. The more clearly we perceivethat, when the Feudal institutions were in process of formation, therewas no source in the world whence they could derive their elements butthe Roman law of the provincials on the one hand and the archaiccustoms of the barbarians on the other, the more are we perplexed atfirst sight by our knowledge that neither Roman nor barbarian wasaccustomed to give any preference to the eldest son or his line in thesuccession to property. Primogeniture did not belong to the Customs which the barbarianspractised on their first establishment within the Roman Empire. It isknown to have had its origin in the _benefices_ or beneficiary giftsof the invading chieftains. These benefices, which were occasionallyconferred by the earlier immigrant kings, but were distributed on agreat scale by Charlemagne, were grants of Roman provincial land to beholden by the beneficiary on condition of military service. The_allodial_ proprietors do not seem to have followed their sovereign ondistant or difficult enterprises, and all the grander expeditions ofthe Frankish chiefs and of Charlemagne were accomplished with forcescomposed of soldiers either personally dependent on the royal house orcompelled to serve it by the tenure of their land. The benefices, however, were not at first in any sense hereditary. They were held atthe pleasure of the grantor, or at most for the life of the grantee;but still, from the very outset, no effort seems to have been sparedby the beneficiaries to enlarge the tenure, and to continue theirlands in their family after death. Through the feebleness ofCharlemagne's successors these attempts were universally successful, and the Benefice gradually transformed itself into the hereditaryFief. But, though the fiefs were hereditary, they did not necessarilydescend to the eldest son. The rules of succession which they followedwere entirely determined by the terms agreed upon between the grantorand the beneficiary, or imposed by one of them on the weakness of theother. The original tenures were therefore extremely various; notindeed so capriciously various as is sometimes asserted, for all whichhave hitherto been described present some combination of the modes ofsuccession familiar to Romans and to barbarians, but still exceedinglymiscellaneous. In some of them, the eldest son and his stockundoubtedly succeeded to the fief before the others, but suchsuccessions, so far from being universal, do not even appear to havebeen general. Precisely the same phenomena recur during that morerecent transmutation of European society which entirely substitutedthe feudal form of property for the domainial (or Roman) and theallodial (or German). The allods were wholly absorbed by the fiefs. The greater allodial proprietors transformed themselves into feudallords by conditional alienations of portions of their land todependants; the smaller sought an escape from the oppressions of thatterrible time by surrendering their property to some powerfulchieftain, and receiving it back at his hands on condition of servicein his wars. Meantime, that vast mass of the population of WesternEurope whose condition was servile or semi-servile--the Roman andGerman personal slaves, the Roman _coloni_ and the German _lidi_--wereconcurrently absorbed by the feudal organisation, a few of themassuming a menial relation to the lords, but the greater partreceiving land on terms which in those centuries were considereddegrading. The tenures created during this era of universalinfeudation were as various as the conditions which the tenants madewith their new chiefs or were forced to accept from them. As in thecase of the benefices, the succession to some, but by no means to all, of the estates followed the rule of Primogeniture. No sooner, however, has the feudal system prevailed throughout the West, than it becomesevident that Primogeniture has some great advantage over every othermode of succession. It spread over Europe with remarkable rapidity, the principal instrument of diffusion being Family Settlements, thePactes de Famille of France and Haus-Gesetze of Germany, whichuniversally stipulated that lands held by knightly service shoulddescend to the eldest son. Ultimately the law resigned itself tofollow inveterate practice, and we find that in all the bodies ofCustomary Law, which were gradually built up, the eldest son and stockare preferred in the succession to estates of which the tenure is freeand military. As to lands held by servile tenures (and originally alltenures were servile which bound the tenant to pay money or bestowmanual labour), the system of succession prescribed by custom differedgreatly in different countries and different provinces. The moregeneral rule was that such lands were divided equally at death amongall the children, but still in some instances the eldest son waspreferred, in some the youngest. But Primogeniture usually governedthe inheritance of that class of estates, in some respects the mostimportant of all, which were held by tenures that, like the EnglishSocage, were of later origin than the rest, and were neitheraltogether free nor altogether servile. The diffusion of Primogeniture is usually accounted for by assigningwhat are called Feudal reasons for it. It is asserted that the feudalsuperior had a better security for the military service he requiredwhen the fief descended to a single person, instead of beingdistributed among a number on the decease of the last holder. Withoutdenying that this consideration may partially explain the favourgradually acquired by Primogeniture, I must point out thatPrimogeniture became a custom of Europe much more through itspopularity with the tenants than through any advantage it conferred onthe lords. For its origin, moreover, the reason given does not accountat all. Nothing in law springs entirely from a sense of convenience. There are always certain ideas existing antecedently on which thesense of convenience works, and of which it can do no more than formsome new combination; and to find these ideas in the present case isexactly the problem. A valuable hint is furnished to us from a quarter fruitful of suchindications. Although in India the possessions of a parent aredivisible at his death, and may be divisible during his life, amongall his male children in equal shares, and though this principle ofthe equal distribution of _property_ extends to every part of theHindoo institutions, yet wherever _public office_ or _political power_devolves at the decease of the last Incumbent, the succession isnearly universally according to the rules of Primogeniture. Sovereignties descend therefore to the eldest son, and where theaffairs of the Village Community, the corporate unit of Hindoosociety, are confided to a single manager, it is generally the eldestson who takes up the administration at his parent's death. Alloffices, indeed, in India, tend to become hereditary, and, when theirnature permits it, to vest in the eldest member of the oldest stock. Comparing these Indian successions with some of the ruder socialorganisations which have survived in Europe almost to our own day, theconclusion suggests itself that, when Patriarchal power is not only_domestic_ but _political_, it is not distributed among all theissue at the parent's death, but is the birthright of the eldestson. The chieftainship of a Highland clan, for example, followedthe order of Primogeniture. There seems, in truth, to be a form offamily-dependency still more archaic than any of those which we knowfrom the primitive records of organised civil societies. The AgnaticUnion of the kindred in ancient Roman law, and a multitude of similarindications, point to a period at which all the ramifying branches ofthe family tree held together in one organic whole; and it is nopresumptuous conjecture, that, when the corporation thus formed by thekindred was in itself an independent society, it was governed by theeldest male of the oldest line. It is true that we have no actualknowledge of any such society. Even in the most elementarycommunities, family-organisations, as we know them, are at most_imperia in imperio_. But the position of some of them, of the Celticclans in particular, was sufficiently near independence withinhistorical times to force on us the conviction that they were onceseparate _imperia_, and that Primogeniture regulated the succession tothe chieftainship. It is, however, necessary to be on our guardagainst modern associations with the term of law. We are speaking of afamily-connection still closer and more stringent than any with whichwe are made acquainted by Hindoo society or ancient Roman law. If theRoman Paterfamilias was visibly steward of the family possessions, ifthe Hindoo father is only joint-sharer with his sons, still moreemphatically must the true patriarchal chieftain be merely theadministrator of a common fund. The examples of succession by Primogeniture which were found among theBenefices may, therefore, have been imitated from a system offamily-government known to the invading races, though not in generaluse. Some ruder tribes may have still practised it, or, what is stillmore probable, society may have been so slightly removed from its morearchaic condition that the minds of some men spontaneously recurred toit, when they were called upon to settle the rules of inheritance fora new form of property. But there is still the question, Why didPrimogeniture gradually supersede every other principle of succession?The answer, I think, is, that European society decidedly retrogradedduring the dissolution of the Carlovingian empire. It sank a point ortwo back even from the miserably low degree which it had marked duringthe early barbarian monarchies. The great characteristic of theperiod was the feebleness, or rather the abeyance, of kingly andtherefore of civil authority; and hence it seems as if, civil societyno longer cohering, men universally flung themselves back on a socialorganisation older than the beginnings of civil communities. The lordwith his vassals, during the ninth and tenth centuries, may beconsidered as a patriarchal household, recruited, not as in theprimitive times by Adoption, but by Infeudation; and to such aconfederacy, succession by Primogeniture was a source of strength anddurability. So long as the land was kept together on which the entireorganisation rested, it was powerful for defence and attack; to dividethe land was to divide the little society, and voluntarily to inviteaggression in an era of universal violence. We may be perfectlycertain that into this preference for Primogeniture there entered noidea of disinheriting the bulk of the children in favour of one. Everybody would have suffered by the division of the fief. Everybodywas a gainer by its consolidation. The Family grew stronger by theconcentration of power in the same hands; nor is it likely that thelord who was invested with the inheritance had any advantage over hisbrethren and kinsfolk in occupations, interests, or indulgences. Itwould be a singular anachronism to estimate the privileges succeededto by the heir of a fief, by the situation in which the eldest son isplaced under an English strict settlement. I have said that I regard the early feudal confederacies as descendedfrom an archaic form of the Family, and as wearing a strongresemblance to it. But then in the ancient world, and in the societieswhich have not passed through the crucible of feudalism, thePrimogeniture which seems to have prevailed never transformed itselfinto the Primogeniture of the later feudal Europe. When the group ofkinsmen ceased to be governed through a series of generations by ahereditary chief, the domain which had been managed for all appears tohave been equally divided among all. Why did this not occur in thefeudal world? If during the confusions of the first feudal period theeldest son held the land for the behoof of the whole family, why wasit that when feudal Europe had consolidated itself, and regularcommunities were again established, the whole family did not resumethat capacity for equal inheritance which had belonged to Roman andGerman alike? The key which unlocks this difficulty has rarely beenseized by the writers who occupy themselves in tracing the genealogyof Feudalism. They perceive the materials of the feudal institutions, but they miss the cement. The ideas and social forms which contributedto the formation of the system were unquestionably barbarian andarchaic, but, as soon as Courts and lawyers were called in tointerpret and define it, the principles of interpretation which theyapplied to it were those of the latest Roman jurisprudence, and weretherefore excessively refined and matured. In a patriarchally governedsociety, the eldest son may succeed to the government of the Agnaticgroup, and to the absolute disposal of its property. But he is nottherefore a true proprietor. He has correlative duties not involved inthe conception of proprietorship, but quite undefined and quiteincapable of definition. The later Roman jurisprudence, however, likeour own law, looked upon uncontrolled power over property asequivalent to ownership, and did not, and, in fact, could not, takenotice of liabilities of such a kind, that the very conception of thembelonged to a period anterior to regular law. The contact of therefined and the barbarous notion had inevitably for its effect theconversion of the eldest son into legal proprietor of the inheritance. The clerical and secular lawyers so defined his position from thefirst; but it was only by insensible degrees that the younger brother, from participating on equal terms in all the dangers and enjoyments ofhis kinsman, sank into the priest, the soldier of fortune, or thehanger-on of the mansion. The legal revolution was identical with thatwhich occurred on a smaller scale, and in quite recent times, throughthe greater part of the Highlands of Scotland. When called in todetermine the legal powers of the chieftain over the domains whichgave sustenance to the clan, Scottish jurisprudence had long sincepassed the point at which it could take notice of the vaguelimitations on completeness of dominion imposed by the claims of theclansmen, and it was inevitable therefore that it should convert thepatrimony of many into the estate of one. For the sake of simplicity I have called the mode of successionPrimogeniture whenever a single son or descendant succeeds to theauthority over a household or society. It is remarkable, however, thatin the few very ancient examples which remain to us of this sort ofsuccession, it is not always the eldest son, in the sense familiar tous, who takes up the representation. The form of Primogeniture whichhas spread over Western Europe has also been perpetuated among theHindoos, and there is every reason to believe that it is the normalform. Under it, not only the eldest son, but the eldest line is alwayspreferred. If the eldest son fails, his eldest son has precedence notonly over brothers but over uncles; and, if he too fails, the samerule is followed in the next generation. But when the succession isnot merely to _civil_ but to _political_ power, a difficulty maypresent itself which will appear of greater magnitude according as thecohesion of society is less perfect. The chieftain who last exercisedauthority may have outlived his eldest son, and the grandson who isprimarily entitled to succeed may be too young and immature toundertake the actual guidance of the community, and the administrationof its affairs. In such an event, the expedient which suggests itselfto the more settled societies is to place the infant heir underguardianship till he reaches the age of fitness for government. Theguardianship is generally that of the male Agnates; but it isremarkable that the contingency supposed is one of the rare cases inwhich ancient societies have consented to the exercise of power bywomen, doubtless out of respect to the overshadowing claims of themother. In India, the widow of a Hindoo sovereign governs in the nameof her infant son, and we cannot but remember that the customregulating succession to the throne of France--which, whatever be itsorigin, is doubtless of the highest antiquity--preferred thequeen-mother to all other claimants for the Regency, at the same timethat it rigorously excluded all females from the throne. There is, however, another mode of obviating the inconvenience attending thedevolution of sovereignty on an infant heir, and it is one which woulddoubtless occur spontaneously to rudely organised communities. This isto set aside the infant heir altogether, and confer the chieftainshipon the eldest surviving male of the first generation. The Celticclan-associations, among the many phenomena which they have preservedof an age in which civil and political society were not yet evenrudimentarily separated, have brought down this rule of succession tohistorical times. With them, it seems to have existed in the form of apositive canon, that, failing the eldest son, his next brothersucceeds in priority to all grandsons, whatever be their age at themoment when the sovereignty devolves. Some writers have explained theprinciple by assuming that the Celtic customs took the last chieftainas a sort of root or stock, and then gave the succession to thedescendant who should be least remote from him; the uncle thus beingpreferred to the grandson as being nearer to the common root. Noobjection can be taken to this statement if it be merely intended as adescription of the system of succession; but it would be a seriouserror to conceive the men who first adopted the rule as applying acourse of reasoning which evidently dates from the time when feudalschemes of succession begun to be debated among lawyers. The trueorigin of the preference of the uncle to the grandson is doubtless asimple calculation on the part of rude men in a rude society that itis better to be governed by a grown chieftain than by a child, andthat the younger son is more likely to have come to maturity than anyof the eldest son's descendants. At the same time, we have someevidence that the form of Primogeniture with which we are bestacquainted is the primary form, in the tradition that the assent ofthe clan was asked when an infant heir was passed over in favour ofhis uncle. There is a tolerably well authenticated instance of thisceremony in the annals of the Macdonalds. Under Mahometan law, which has probably preserved an ancient Arabiancustom, inheritances of property are divided equally among sons, thedaughters taking a half share; but if any of the children die beforethe division of the inheritance, leaving issue behind, thesegrandchildren are entirely excluded by their uncles and aunts. Consistently with this principle, the succession, when politicalauthority devolves, is according to the form of Primogeniture whichappears to have obtained among the Celtic societies. In the two greatMahometan families of the West, the rule is believed to be, that theuncle succeeds to the throne in preference to the nephew, though thelatter be the son of an elder brother; but though this rule has beenfollowed quite recently in Egypt, I am informed that there is somedoubt as to its governing the devolution of the Turkish sovereignty. The policy of the Sultans has in fact hitherto prevented cases for itsapplication from occurring, and it is possible that their wholesalemassacres of their younger brothers may have been perpetuated quite asmuch in the interest of their children as for the sake of making awaywith dangerous competitors for the throne. It is evident, however, that in polygamous societies the form of Primogeniture will alwaystend to vary. Many considerations may constitute a claim on thesuccession, the rank of the mother, for example, or her degree in theaffections of the father. Accordingly, some of the Indian Mahometansovereigns, 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 sonshas sometimes been spoken of as a will, but it seems rather to havebeen a mode of naming an eldest son. CHAPTER VIII THE EARLY HISTORY OF PROPERTY The Roman Institutional Treatises, after giving their definition ofthe various forms and modifications of ownership, proceed to discussthe Natural Modes of Acquiring Property. Those who are unfamiliar withthe history of jurisprudence are not likely to look upon these"natural modes" of acquisition as possessing, at first sight, eithermuch speculative or much practical interest. The wild animal which issnared or killed by the hunter, the soil which is added to our fieldby the imperceptible deposits of a river, the tree which strikes itsroots into our ground, are each said by the Roman lawyers to beacquired by us _naturally_. The older jurisconsults had doubtlessobserved that such acquisitions were universally sanctioned by theusages of the little societies around them, and thus the lawyers of alater age, finding them classed in the ancient Jus Gentium, andperceiving them to be of the simplest description, allotted them aplace among the ordinances of Nature. The dignity with which they wereinvested has gone on increasing in modern times till it is quite outof proportion to their original importance. Theory has made them itsfavourite food, and has enabled them to exercise the most seriousinfluence on practice. It will be necessary for us to attend to one only among these "naturalmodes of acquisition, " Occupatio or Occupancy. Occupancy is theadvisedly taking possession of that which at the moment is theproperty of no man, with the view (adds the technical definition) ofacquiring property in it for yourself. The objects which the Romanlawyers called _res nullius_--things which have not or have never hadan owner--can only be ascertained by enumerating them. Among thingswhich _never had_ an owner are wild animals, fishes, wild fowl, jewelsdisinterred for the first time, and lands newly discovered or neverbefore cultivated. Among things which _have not_ an owner aremoveables which have been abandoned, lands which have been deserted, and (an anomalous but most formidable item) the property of an enemy. In all these objects the full rights of dominion were acquired by the_Occupant_ who first took possession of them with the intention ofkeeping them as his own--an intention which, in certain cases, had tobe manifested by specific acts. It is not difficult, I think, tounderstand the universality which caused the practice of Occupancy tobe placed by one generation of Roman lawyers in the Law common to allNations, and the simplicity which occasioned its being attributed byanother to the Law of Nature. But for its fortunes in modern legalhistory we are less prepared by _à priori_ considerations. The Romanprinciple of Occupancy, and the rules into which the jurisconsultsexpanded it, are the source of all modern International Law on thesubject of Capture in War and of the acquisition of sovereign rightsin newly discovered countries. They have also supplied a theory of theOrigin of Property, which is at once the popular theory, and thetheory which, in one form or another, is acquiesced in by the greatmajority of speculative jurists. I have said that the Roman principle of Occupancy has determined thetenor of that chapter of International Law which is concerned withCapture in War. The Law of Warlike Capture derives its rules from theassumption that communities are remitted to a state of nature by theoutbreak of hostilities, and that, in the artificial natural conditionthus produced, the institution of private property falls into abeyanceso far as concerns the belligerents. As the later writers on the Lawof Nature have always been anxious to maintain that private propertywas in some sense sanctioned by the system which they were expounding, the hypothesis that an enemy's property is _res nullius_ has seemed tothem perverse and shocking, and they are careful to stigmatise it as amere fiction of jurisprudence. But, as soon as the Law of Nature istraced to its source in the Jus Gentium, we see at once how the goodsof an enemy came to be looked upon as nobody's property, and thereforeas capable of being acquired by the first occupant. The idea wouldoccur spontaneously to persons practising the ancient forms ofWarfare, when victory dissolved the organisation of the conqueringarmy and dismissed the soldiers to indiscriminate plunder. It isprobable, however, that originally it was only moveable property whichwas thus permitted to be acquired by the Captor. We know onindependent authority that a very different rule prevailed in ancientItaly as to the acquisition of ownership in the soil of a conqueredcountry, and we may therefore suspect that the application of theprinciple of occupancy to land (always a matter of difficulty) datesfrom the period when the Jus Gentium was becoming the Code of Nature, and that it is the result of a generalisation effected by thejurisconsults of the golden age. Their dogmas on the point arepreserved in the Pandects of Justinian, and amount to an unqualifiedassertion that enemy's property of every sort is _res nullius_ to theother belligerent, and that Occupancy, by which the Captor makes themhis own, is an institution of Natural Law. The rules whichInternational jurisprudence derives from these positions havesometimes been stigmatised as needlessly indulgent to the ferocity andcupidity of combatants, but the charge has been made, I think, bypersons who are unacquainted with the history of wars, and who areconsequently ignorant how great an exploit it is to command obediencefor a rule of any kind. The Roman principle of Occupancy, when it wasadmitted into the modern law of Capture in War, drew with it a numberof subordinate canons, limiting and giving precision to its operation, and if the contests which have been waged since the treatise ofGrotius became an authority, are compared with those of an earlierdate, it will be seen that, as soon as the Roman maxims were received, Warfare instantly assumed a more tolerable complexion. If the Romanlaw of Occupancy is to be taxed with having had pernicious influenceon any part of the modern Law of Nations, there is another chapter init which may be said, with some reason, to have been injuriouslyaffected. In applying to the discovery of new countries the sameprinciples which the Romans had applied to the finding of a jewel, thePublicists forced into their service a doctrine altogether unequal tothe task expected from it. Elevated into extreme importance by thediscoveries of the great navigators of the fifteenth and sixteenthcenturies, it raised more disputes than it solved. The greatestuncertainty was very shortly found to exist on the very two points onwhich certainty was most required, the extent of the territory whichwas acquired for his sovereign by the discoverer, and the nature ofthe acts which were necessary to complete the _adprehensio_ orassumption of sovereign possession. Moreover, the principleitself, conferring as it did such enormous advantages as theconsequence of a piece of good luck, was instinctively mutiniedagainst by some of the most adventurous nations in Europe, the Dutch, the English, and the Portuguese. Our own countrymen, without expresslydenying the rule of International Law, never did, in practice, admitthe claim of the Spaniards to engross the whole of America south ofthe Gulf of Mexico, or that of the King of France to monopolise thevalleys of the Ohio and the Mississippi. From the accession ofElizabeth to the accession of Charles the Second, it cannot be saidthat there was at any time thorough peace in the American waters, andthe encroachments of the New England Colonists on the territory of theFrench King continued for almost a century longer. Bentham was sostruck with the confusion attending the application of the legalprinciple, that he went out of his way to eulogise the famous Bull ofPope Alexander the Sixth, dividing the undiscovered countries of theworld between the Spaniards and Portuguese by a line drawn one hundredleagues West of the Azores; and, grotesque as his praises may appearat first sight, it may be doubted whether the arrangement of PopeAlexander is absurder in principle than the rule of Public law, whichgave half a continent to the monarch whose servants had fulfilled theconditions required by Roman jurisprudence for the acquisition ofproperty 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 ithas been made to perform for speculative jurisprudence, in furnishinga supposed explanation of the origin of private property. It was onceuniversally believed that the proceeding implied in Occupancy wasidentical with the process by which the earth and its fruits, whichwere at first in common, became the allowed property of individuals. The course of thought which led to this assumption is not difficult tounderstand, if we seize the shade of difference which separates theancient from the modern conception of Natural Law. The Roman lawyershad laid down that Occupancy was one of the Natural modes of acquiringproperty, and they undoubtedly believed that, were mankind livingunder the institutions of Nature, Occupancy would be one of theirpractices. How far they persuaded themselves that such a condition ofthe race had ever existed, is a point, as I have already stated, whichtheir language leaves in much uncertainty; but they certainly do seemto have made the conjecture, which has at all times possessed muchplausibility, that the institution of property was not so old as theexistence of mankind. Modern jurisprudence, accepting all their dogmaswithout reservation, went far beyond them in the eager curiosity withwhich it dwelt on the supposed state of Nature. Since then it hadreceived the position that the earth and its fruits were once _resnullius_, and since its peculiar view of Nature led it to assumewithout hesitation that the human race had actually practised theOccupancy of _res nullius_ long before the organisation of civilsocieties, the inference immediately suggested itself that Occupancywas the process by which the "no man's goods" of the primitive worldbecame the private property of individuals in the world of history. Itwould be wearisome to enumerate the jurists who have subscribed tothis theory in one shape or another, and it is the less necessary toattempt it because Blackstone, who is always a faithful index of theaverage opinions of his day, has summed them up in his 2nd book and1st chapter. "The earth, " he writes, "and all things therein were the generalproperty of mankind from the immediate gift of the Creator. Not thatthe communion of goods seems ever to have been applicable, even in theearliest ages, to aught but the substance of the thing; nor could beextended to the use of it. For, by the law of nature and reason he whofirst began to use it acquired therein a kind of transient propertythat lasted so long as he was using it, and no longer; or to speakwith greater precision, the right of possession continued for the sametime only that the act of possession lasted. Thus the ground was incommon, and no part was the permanent property of any man inparticular; yet whoever was in the occupation of any determined spotof it, for rest, for shade, or the like, acquired for the time a sortof ownership, from which it would have been unjust and contrary to thelaw of nature to have driven him by force, but the instant that hequitted the use of occupation of it, another might seize it withoutinjustice. " He then proceeds to argue that "when mankind increased innumber, it became necessary to entertain conceptions of more permanentdominion, and to appropriate to individuals not the immediate useonly, but the very substance of the thing to be used. " Some ambiguities of expression in this passage lead to the suspicionthat Blackstone did not quite understand the meaning of theproposition which he found in his authorities, that property in theearth's surface was first acquired, under the law of Nature, by the_occupant_; but the limitation which designedly or throughmisapprehension he has imposed on the theory brings it into a formwhich it has not infrequently assumed. Many writers more famous thanBlackstone for precision of language have laid down that, in thebeginning of things, Occupancy first gave a right against the world toan exclusive but temporary enjoyment, and that afterwards this right, while it remained exclusive, became perpetual. Their object in sostating their theory was to reconcile the doctrine that in the stateof Nature _res nullius_ became property through Occupancy, with theinference which they drew from the Scriptural history that thePatriarchs did not at first permanently appropriate the soil which hadbeen grazed over by their flocks and herds. The only criticism which could be directly applied to the theory ofBlackstone would consist in inquiring whether the circumstances whichmake up his picture of a primitive society are more or less probablethan other incidents which could be imagined with equal readiness. Pursuing this method of examination, we might fairly ask whether theman who had _occupied_ (Blackstone evidently uses this word with itsordinary English meaning) a particular spot of ground for rest orshade would be permitted to retain it without disturbance. The chancessurely are that his right to possession would be exactly coextensivewith his power to keep it, and that he would be constantly liable todisturbance by the first comer who coveted the spot and thoughthimself strong enough to drive away the possessor. But the truth isthat all such cavil at these positions is perfectly idle from the verybaselessness of the positions themselves. What mankind did in theprimitive state may not be a hopeless subject of inquiry, but of theirmotives for doing it it is impossible to know anything. These sketchesof the plight of human beings in the first ages of the world areeffected by first supposing mankind to be divested of a great partof the circumstances by which they are now surrounded, and bythen assuming that, in the condition thus imagined, they wouldpreserve the same sentiments and prejudices by which they are nowactuated, --although, in fact, these sentiments may have been createdand engendered by those very circumstances of which, by thehypothesis, they are to be stripped. There is an aphorism of Savigny which has been sometimes thought tocountenance a view of the origin of property somewhat similar to thetheories epitomised by Blackstone. The great German jurist has laiddown that all Property is founded on Adverse Possession ripened byPrescription. It is only with respect to Roman law that Savigny makesthis statement, and before it can fully be appreciated much labourmust be expended in explaining and defining the expressions employed. His meaning will, however, be indicated with sufficient accuracy if weconsider him to assert that, how far soever we carry our inquiry intothe ideas of property received among the Romans, however closely weapproach in tracing them to the infancy of law, we can get no fartherthan a conception of ownership involving the three elements in thecanon--Possession, Adverseness of Possession, that is a holding notpermissive or subordinate, but exclusive against the world, andPrescription, or a period of time during which the Adverse Possessionhas uninterruptedly continued. It is exceedingly probable that thismaxim might be enunciated with more generality than was allowed to itby its author, and that no sound or safe conclusion can be looked forfrom investigations into any system of laws which are pushed fartherback than the point at which these combined ideas constitute thenotion of proprietary right. Meantime, so far from bearing out thepopular theory of the origin of property, Savigny's canon isparticularly valuable as directing our attention to its weakest point. In the view of Blackstone and those whom he follows, it was the modeof assuming the exclusive enjoyment which mysteriously affected theminds of the fathers of our race. But the mystery does not residehere. It is not wonderful that property began in adverse possession. It is not surprising that the first proprietor should have been thestrong man armed who kept his goods in peace. But why it was thatlapse of time created a sentiment of respect for his possession--whichis the exact source of the universal reverence of mankind for thatwhich has for a long period _de facto_ existed--are questions reallydeserving the profoundest examination, but lying far beyond theboundary of our present inquiries. Before pointing out the quarter in which we may hope to glean someinformation, scanty and uncertain at best, concerning the earlyhistory of proprietary right, I venture to state my opinion that thepopular impression in reference to the part played by Occupancy in thefirst stages of civilisation directly reverses the truth. Occupancy isthe advised assumption of physical possession; and the notion that anact of this description confers a title to "res nullius, " so far frombeing characteristic of very early societies, is in all probabilitythe growth of a refined jurisprudence and of a settled condition ofthe laws. It is only when the rights of property have gained asanction from long practical inviolability and when the vast majorityof the objects of enjoyment have been subjected to private ownership, that mere possession is allowed to invest the first possessor withdominion over commodities in which no prior proprietorship has beenasserted. The sentiment in which this doctrine originated isabsolutely irreconcilable with that infrequency and uncertainty ofproprietary rights which distinguish the beginnings of civilisation. Its true basis seems to be, not an instinctive bias towards theinstitution of Property, but a presumption arising out of the longcontinuance of that institution, that _everything ought to have anowner_. When possession is taken of a "res nullius, " that is, of anobject which _is_ not, or has _never_ been, reduced to dominion, thepossessor is permitted to become proprietor from a feeling that allvaluable things are naturally the subjects of an exclusive enjoyment, and that in the given case there is no one to invest with the right ofproperty except the Occupant. The Occupant in short, becomes theowner, because all things are presumed to be somebody's property andbecause no one can be pointed out as having a better right than he tothe proprietorship of this particular thing. Even were there no other objection to the descriptions of mankind intheir natural state which we have been discussing, there is oneparticular in which they are fatally at variance with the authenticevidence possessed by us. It will be observed that the acts andmotives which these theories suppose are the acts and motives ofIndividuals. It is each Individual who for himself subscribes theSocial Compact. It is some shifting sandbank in which the grains areIndividual men, that according to the theory of Hobbes is hardenedinto the social rock by the wholesome discipline of force. It is anIndividual who, in the picture drawn by Blackstone, "is in theoccupation of a determined spot of ground for rest, for shade, or thelike. " The vice is one which necessarily afflicts all the theoriesdescended from the Natural Law of the Romans, which differedprincipally from their Civil Law in the account which it took ofIndividuals, and which has rendered precisely its greatest service tocivilisation in enfranchising the individual from the authority ofarchaic society. But Ancient Law, it must again be repeated, knowsnext to nothing of Individuals. It is concerned not with Individuals, but with Families, not with single human beings, but groups. Even whenthe law of the State has succeeded in permeating the small circles ofkindred into which it had originally no means of penetrating, the viewit takes of Individuals is curiously different from that taken byjurisprudence in its maturest stage. The life of each citizen is notregarded as limited by birth and death; it is but a continuation ofthe existence of his forefathers, and it will be prolonged in theexistence of his descendants. The Roman distinction between the Law of Persons and the Law ofThings, which though extremely convenient is entirely artificial, hasevidently done much to divert inquiry on the subject before us fromthe true direction. The lessons learned in discussing the JusPersonarum have been forgotten where the Jus Rerum is reached, andProperty, Contract, and Delict, have been considered as if no hintsconcerning their original nature were to be gained from the factsascertained respecting the original condition of Persons. The futilityof this method would be manifest if a system of pure archaic law couldbe brought before us, and if the experiment could be tried of applyingto it the Roman classifications. It would soon be seen that theseparation of the Law of Persons from that of Things has no meaning inthe infancy of law, that the rules belonging to the two departmentsare inextricably mingled together, and that the distinctions of thelater jurists are appropriate only to the later jurisprudence. Fromwhat has been said in the earlier portions of this treatise, it willbe gathered that there is a strong _à priori_ improbability of ourobtaining any clue to the early history of property, if we confine ournotice to the proprietary rights of individuals. It is more thanlikely that joint-ownership, and not separate ownership, is the reallyarchaic institution, and that the forms of property which will affordus instruction will be those which are associated with the rights offamilies and of groups of kindred. The Roman jurisprudence will nothere assist in enlightening us, for it is exactly the Romanjurisprudence which, transformed by the theory of Natural Law, hasbequeathed to the moderns the impression that individual ownership isthe normal state of proprietary right, and that ownership in common bygroups of men is only the exception to a general rule. There is, however, one community which will always be carefully examined by theinquirer who is in quest of any lost institution of primeval society. How far soever any such institution may have undergone change amongthe branch of the Indo-European family which has been settled for agesin India, it will seldom be found to have entirely cast aside theshell in which it was originally reared. It happens that, among theHindoos, we do find a form of ownership which ought at once to rivetour attention from its exactly fitting in with the ideas which ourstudies in the Law of Persons would lead us to entertain respectingthe original condition of property. The Village Community of India isat once an organised patriarchal society and an assemblage ofco-proprietors. The personal relations to each other of the men whocompose it are indistinguishably confounded with their proprietaryrights, and to the attempts of English functionaries to separate thetwo may be assigned some of the most formidable miscarriages ofAnglo-Indian administration. The Village Community is known to be ofimmense antiquity. In whatever direction research has been pushed intoIndian history, general or local, it has always found the Community inexistence at the farthest point of its progress. A great number ofintelligent and observant writers, most of whom had no theory of anysort to support concerning its nature and origin, agree in consideringit the least destructible institution of a society which neverwillingly surrenders any one of its usages to innovation. Conquestsand revolutions seem to have swept over it without disturbing ordisplacing it, and the most beneficent systems of government in Indiahave always been those which have recognised it as the basis ofadministration. The mature Roman law, and modern jurisprudence following in its wake, look upon co-ownership as an exceptional and momentary condition ofthe rights of property. This view is clearly indicated in the maximwhich obtains universally in Western Europe, _Nemo in communionepotest invitus detineri_ ("No one can be kept in co-proprietorshipagainst his will"). But in India this order of ideas is reversed, andit may be said that separate proprietorship is always on its way tobecome proprietorship in common. The process has been adverted toalready. As soon as a son is born, he acquires a vested interest inhis father's substance, and on attaining years of discretion he iseven, in certain contingencies, permitted by the letter of the law tocall for a partition of the family estate. As a fact, however, adivision rarely takes place even at the death of the father, and theproperty constantly remains undivided for several generations, thoughevery member of every generation has a legal right to an undividedshare in it. The domain thus held in common is sometimes administeredby an elected manager, but more generally, and in some provincesalways, it is managed by the eldest agnate, by the eldestrepresentative of the eldest line of the stock. Such an assemblage ofjoint proprietors, a body of kindred holding a domain in common, isthe simplest form of an Indian Village Community, but the Community ismore than a brotherhood of relatives and more than an association ofpartners. It is an organised society, and besides providing for themanagement of the common fund, it seldom fails to provide, by acomplete staff of functionaries, for internal government, for police, for the administration of justice, and for the apportionment of taxesand public duties. The process which I have described as that under which a VillageCommunity is formed, may be regarded as typical. Yet it is not to besupposed that every Village Community in India drew together in sosimple a manner. Although, in the North of India, the archives, as Iam informed, almost invariably show that the Community was founded bya single assemblage of blood-relations, they also supply informationthat men of alien extraction have always, from time to time, beenengrafted on it, and a mere purchaser of a share may generally, undercertain conditions, be admitted to the brotherhood. In the South ofthe Peninsula there are often Communities which appear to have sprungnot from one but from two or more families; and there are some whosecomposition is known to be entirely artificial; indeed, the occasionalaggregation of men of different castes in the same society is fatal tothe hypothesis of a common descent. Yet in all these brotherhoodseither the tradition is preserved, or the assumption made, of anoriginal common parentage. Mountstuart Elphinstone, who writes moreparticularly of the Southern Village Communities, observes of them(_History of India_, i. 126): "The popular notion is that the Villagelandholders are all descended from one or more individuals who settledthe village; and that the only exceptions are formed by persons whohave derived their rights by purchase or otherwise from members of theoriginal stock. The supposition is confirmed by the fact that, to thisday, there are only single families of landholders in small villagesand not many in large ones; but each has branched out into so manymembers that it is not uncommon for the whole agricultural labour tobe done by the landholders, without the aid either of tenants or oflabourers. The rights of the landholders are theirs collectively and, though they almost always have a more or less perfect partition ofthem, they never have an entire separation. A landholder, forinstance, can sell or mortgage his rights; but he must first have theconsent of the Village, and the purchaser steps exactly into his placeand takes up all his obligations. If a family becomes extinct, itsshare returns to the common stock. " Some considerations which have been offered in the fifth chapter ofthis volume will assist the reader, I trust, in appreciating thesignificance of Elphinstone's language. No institution of theprimitive world is likely to have been preserved to our day, unless ithas acquired an elasticity foreign to its original nature through somevivifying legal fiction. The Village Community then is not necessarilyan assemblage of blood-relations, but it is _either_ such anassemblage _or_ a body of co-proprietors formed on the model of anassociation of kinsmen. The type with which it should be compared isevidently not the Roman Family, but the Roman Gens or House. The Genswas also a group on the model of the family; it was the familyextended by a variety of fictions of which the exact nature was lostin antiquity. In historical times, its leading characteristics werethe very two which Elphinstone remarks in the Village Community. Therewas always the assumption of a common origin, an assumption sometimesnotoriously at variance with fact; and, to repeat the historian'swords, "if a family became extinct, its share returned to the commonstock. " In old Roman law, unclaimed inheritances escheated to theGentiles. It is further suspected by all who have examined theirhistory that the Communities, like the Gentes, have been verygenerally adulterated by the admission of strangers, but the exactmode of absorption cannot now be ascertained. At present, they arerecruited, as Elphinstone tells us, by the admission of purchasers, with the consent of the brotherhood. The acquisition of the adoptedmember is, however, of the nature of a universal succession; togetherwith the share he has bought, he succeeds to the liabilities which thevendor had incurred towards the aggregate group. He is an EmptorFamiliæ, and inherits the legal clothing of the person whose place hebegins to fill. The consent of the whole brotherhood required for hisadmission may remind us of the consent which the Comitia Curiata, theParliament of that larger brotherhood of self-styled kinsmen, theancient Roman commonwealth, so strenuously insisted on as essential tothe legalisation of an Adoption or the confirmation of a Will. The tokens of an extreme antiquity are discoverable in almost everysingle feature of the Indian Village Communities. We have so manyindependent reasons for suspecting that the infancy of law isdistinguished by the prevalence of co-ownership by the intermixture ofpersonal with proprietary rights, and by the confusion of public withprivate duties, that we should be justified in deducing many importantconclusions from our observation of these proprietary brotherhoods, even if no similarly compounded societies could be detected in anyother part of the world. It happens, however, that much earnestcuriosity has been very recently attracted to a similar set ofphenomena in those parts of Europe which have been most slightlyaffected by the feudal transformation of property, and which in manyimportant particulars have as close an affinity with the Eastern aswith the Western world. The researches of M. De Haxthausen, M. Tengoborski, and others, have shown us that the Russian villages arenot fortuitous assemblages of men, nor are they unions founded oncontract; they are naturally organised communities like those ofIndia. It is true that these villages are always in theory thepatrimony of some noble proprietor and the peasants have withinhistorical times been converted into the predial, and to a greatextent into the personal, serfs of the seignior. But the pressure ofthis superior ownership has never crushed the ancient organisation ofthe village, and it is probable that the enactment of the Czar ofRussia, who is supposed to have introduced serfdom, was reallyintended to prevent the peasants from abandoning that co-operationwithout which the old social order could not long be maintained. Inthe assumption of an agnatic connection between the villagers, in theblending of personal rights with privileges of ownership, and in avariety of spontaneous provisions for internal administration, theRussian Village appears to be a nearly exact repetition of the IndianCommunity; but there is one important difference which we note withthe greatest interest. The co-owners of an Indian village, thoughtheir property is blended, have their rights distinct, and thisseparation of rights is complete and continues indefinitely. Theseverance of rights is also theoretically complete in a Russianvillage, but there it is only temporary. After the expiration of agiven, but not in all cases of the same, period separate ownershipsare extinguished, the land of the village is thrown into a mass, andthen it is re-distributed among the families composing the community, according to their number. This repartition having been effected, therights of families and of individuals are again allowed to branch outinto various lines, which they continue to follow till another periodof division comes round. An even more curious variation from this typeof ownership occurs in some of those countries which long formed adebateable land between the Turkish empire and the possessions of theHouse of Austria. In Servia, in Croatia, and the Austrian Sclavonia, the villages are also brotherhoods of persons who are at onceco-owners and kinsmen; but there the internal arrangements of thecommunity differ from those adverted to in the last two examples. Thesubstance of the common property is in this case neither divided inpractice nor considered in theory as divisible, but the entire land iscultivated by the combined labour of all the villagers, and theproduce is annually distributed among the households, sometimesaccording to their supposed wants, sometimes according to rules whichgive to particular persons a fixed share of the usufruct. All thesepractices are traced by the jurists of the East of Europe to aprinciple which is asserted to be found in the earliest Sclavonianlaws, the principle that the property of families cannot be dividedfor a perpetuity. The great interest of these phenomena in an inquiry like the presentarises from the light they throw on the development of distinctproprietary rights _inside_ the groups by which property seems to havebeen originally held. We have the strongest reason for thinking thatproperty once belonged not to individuals nor even to isolatedfamilies, but to larger societies composed on the patriarchal model;but the mode of transition from ancient to modern ownerships, obscureat best, would have been infinitely obscurer if severaldistinguishable forms of Village Communities had not been discoveredand examined. It is worth while to attend to the varieties of internalarrangement within the patriarchal groups which are, or were tillrecently, observable among races of Indo-European blood. The chiefs ofthe ruder Highland clans used, it is said, to dole out food to theheads of the households under their jurisdiction at the very shortestintervals, and sometimes day by day. A periodical distribution is alsomade to the Sclavonian villagers of the Austrian and Turkish provincesby the elders of their body, but then it is a distribution once forall of the total produce of the year. In the Russian villages, however, the substance of the property ceases to be looked upon asindivisible, and separate proprietary claims are allowed freely togrow up, but then the progress of separation is peremptorily arrestedafter it has continued a certain time. In India, not only is there noindivisibility of the common fund, but separate proprietorship inparts of it may be indefinitely prolonged and may branch out into anynumber of derivative ownerships, the _de facto_ partition of the stockbeing, however, checked by inveterate usage, and by the rule againstthe admission of strangers without the consent of the brotherhood. Itis not of course intended to insist that these different forms of theVillage Community represent distinct stages in a process oftransmutation which has been everywhere accomplished in the samemanner. But, though the evidence does not warrant our going so far asthis, it renders less presumptuous the conjecture that privateproperty, in the shape in which we know it, was chiefly formed by thegradual disentanglement of the separate rights of individualsfrom the blended rights of a community. Our studies in the Law ofPersons seemed to show us the Family expanding into the Agnatic groupof kinsmen, then the Agnatic group dissolving into separatehouseholds; lastly the household supplanted by the individual; and itis now suggested that each step in the change corresponds to ananalogous alteration in the nature of Ownership. If there be any truthin the suggestion, it is to be observed that it materially affects theproblem which theorists on the origin of Property have generallyproposed to themselves. The question--perhaps an insoluble one--whichthey have mostly agitated is, what were the motives which firstinduced 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 anyinquiry into the reasons which led one composite group to keep alooffrom the domain of another. But, if it be true that far the mostimportant passage in the history of Private Property is its gradualelimination from the co-ownership of kinsmen, then the great point ofinquiry is identical with that which lies on the threshold of allhistorical law--what were the motives which originally prompted men tohold together in the family union? To such a question, Jurisprudence, unassisted by other sciences, is not competent to give a reply. Thefact can only be noted. The undivided state of property in ancient societies is consistentwith a peculiar sharpness of division, which shows itself as soon asany single share is completely separated from the patrimony of thegroup. This phenomenon springs, doubtless, from the circumstance thatthe property is supposed to become the domain of a new group, so thatany dealing with it, in its divided state, is a transaction betweentwo highly complex bodies. I have already compared Ancient Law toModern International Law, in respect of the size and complexity of thecorporate associations, whose rights and duties it settles. As thecontracts and conveyances known to ancient law are contracts andconveyances to which not single individuals, but organised companiesof men, are parties, they are in the highest degree ceremonious; theyrequire a variety of symbolical acts and words intended to impress thebusiness on the memory of all who take part in it; and they demand thepresence of an inordinate number of witnesses. From thesepeculiarities, and others allied to them, springs the universallyunmalleable character of the ancient forms of property. Sometimes thepatrimony of the family is absolutely inalienable, as was the casewith the Sclavonians, and still oftener, though alienations may not beentirely illegitimate, they are virtually impracticable, as among mostof the Germanic tribes, from the necessity of having the consent of alarge number of persons to the transfer. Where these impediments donot exist, or can be surmounted, the act of conveyance itself isgenerally burdened with a perfect load of ceremony, in which not oneiota can be safely neglected. Ancient law uniformly refuses todispense with a single gesture, however grotesque; with a singlesyllable, however its meaning may have been forgotten; with a singlewitness, however superfluous may be his testimony. The entiresolemnities must be scrupulously completed by persons legally entitledto take part in them, or else the conveyance is null, and the selleris re-established in the rights of which he had vainly attempted todivest himself. These various obstacles to the free circulation of the objects of useand enjoyment, begin of course to make themselves felt as soon associety has acquired even a slight degree of activity, and theexpedients by which advancing communities endeavour to overcome themform the staple of the history of Property. Of such expedients thereis one which takes precedence of the rest from its antiquity anduniversality. The idea seems to have spontaneously suggested itself toa great number of early societies, to classify property into kinds. One kind or sort of property is placed on a lower footing of dignitythan the others, but at the same time is relieved from the fetterswhich antiquity has imposed on them. Subsequently, the superiorconvenience of the rules governing the transfer and descent of thelower order of property becomes generally recognised, and by a gradualcourse of innovation the plasticity of the less dignified class ofvaluable objects is communicated to the classes which standconventionally higher. The history of Roman Property Law is thehistory of the assimilation of Res Mancipi to Res Nec Mancipi. Thehistory of Property on the European Continent is the history of thesubversion of the feudalised law of land by the Romanised law ofmoveables; and, though the history of ownership in England is notnearly completed, it is visibly the law of personalty which threatensto absorb and annihilate the law of realty. The only _natural_ classification of the objects of enjoyment, theonly classification which corresponds with an essential difference inthe subject-matter, is that which divides them into Moveables andImmoveables. Familiar as is this classification to jurisprudence, itwas very slowly developed by Roman law, from which we inherit it, andwas only finally adopted by it in its latest stage. Theclassifications of Ancient Law have sometimes a superficialresemblance to this. They occasionally divide property intocategories, and place immoveables in one of them; but then it is foundthat they either class along with immoveables a number of objectswhich have no sort of relation with them, or else divorce them fromvarious rights to which they have a close affinity. Thus, the ResMancipi of Roman Law included not only land, but slaves, horses, andoxen. Scottish law ranks with land a certain class of securities, andHindoo law associates it with slaves. English law, on the other hand, parts leases of land for years from other interests in the soil, andjoins them to personalty under the name of chattels real. Moreover, the classifications of Ancient Law are classifications implyingsuperiority and inferiority; while the distinction between moveablesand immoveables, so long at least as it was confined to Romanjurisprudence, carried with it no suggestion whatever of a differencein dignity. The Res Mancipi, however, did certainly at first enjoy aprecedence over the Res Nec Mancipi, as did heritable property inScotland and realty in England, over the personalty to which they wereopposed. The lawyers of all systems have spared no pains in strivingto refer these classifications to some intelligible principle; but thereasons of the severance must ever be vainly sought for in thephilosophy of law: they belong not to its philosophy, but to itshistory. The explanation which appears to cover the greatest number ofinstances is, that the objects of enjoyment honoured above the restwere the forms of property known first and earliest to each particularcommunity, and dignified therefore emphatically with the designationof _Property_. On the other hand, the articles not enumerated amongthe favoured objects seem to have been placed on a lower standing, because the knowledge of their value was posterior to the epoch atwhich the catalogue of superior property was settled. They were atfirst unknown, rare, limited in their uses, or else regarded as mereappendages to the privileged objects. Thus, though the Roman ResMancipi included a number of moveable articles of great value, stillthe most costly jewels were never allowed to take rank as Res Mancipi, because they were unknown to the early Romans. In the same waychattels real in England are said to have been degraded to the footingof personalty, from the infrequency and valuelessness of such estatesunder the feudal land-law. But the grand point of interest is, thecontinued degradation of these commodities when their importance hadincreased and their number had multiplied. Why were they notsuccessively included among the favoured objects of enjoyment? Onereason is found in the stubbornness with which Ancient Law adheres toits classifications. It is a characteristic both of uneducated mindsand of early societies, that they are little able to conceive ageneral rule apart from the particular applications of it with whichthey are practically familiar. They cannot dissociate a general termor maxim from the special examples which meet them in dailyexperience; and in this way the designation covering the best-knownforms of property is denied to articles which exactly resemble them inbeing objects of enjoyment and subjects of right. But to theseinfluences, which exert peculiar force in a subject-matter so stableas that of law, are afterwards added others more consistent withprogress in enlightenment and in the conceptions of generalexpediency. Courts and lawyers become at last alive to theinconvenience of the embarrassing formalities required for thetransfer, recovery, or devolution of the favoured commodities, andgrow unwilling to fetter the newer descriptions of property with thetechnical trammels which characterised the infancy of law. Hencearises a disposition to keep these last on a lower grade in thearrangements of Jurisprudence, and to permit their transfer by simplerprocesses than those which, in archaic conveyances, serve asstumbling-blocks to good faith and stepping-stones to fraud. We areperhaps in some danger of underrating the inconveniences of theancient 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 notwritten, but _acted_. Gestures and words took the place of writtentechnical phraseology, and any formula mispronounced, or symbolicalact omitted, would have vitiated the proceeding as fatally as amaterial mistake in stating the uses or setting out the remainderswould, two hundred years ago, have vitiated an English deed. Indeed, the mischiefs of the archaic ceremonial are even thus only halfstated. So long as elaborate conveyances, written or acted, arerequired for the alienation of _land_ alone, the chances of mistakeare not considerable in the transfer of a description of propertywhich is seldom got rid of with much precipitation. But the higherclass of property in the ancient world comprised not only land butseveral of the commonest and several of the most valuable moveables. When once the wheels of society had begun to move quickly, there musthave been immense inconvenience in demanding a highly intricate formof transfer for a horse or an ox, or for the most costly chattel ofthe old world--the Slave. Such commodities must have been constantlyand even ordinarily conveyed with incomplete forms, and held, therefore, under imperfect titles. The Res Mancipi of old Roman law were land--in historical times, landon Italian soil, --slaves and beasts of burden, such as horses andoxen. It is impossible to doubt that the objects which make up theclass are the instruments of agricultural labour, the commodities offirst consequence to a primitive people. Such commodities were atfirst, I imagine, called emphatically Things or Property, and the modeof conveyance by which they were transferred was called a Mancipium orMancipation; but it was not probably till much later that theyreceived the distinctive appellation of Res Mancipi, "Things whichrequire a Mancipation. " By their side there may have existed or grownup a class of objects, for which it was not worth while to insist uponthe full ceremony of Mancipation. It would be enough if, intransferring these last from owner to owner, a part only of theordinary formalities were proceeded with, namely, that actualdelivery, physical transfer, or _tradition_, which is the most obviousindex of a change of proprietorship. Such commodities were the Res NecMancipi of the ancient jurisprudence, "things which did not require aMancipation, " little prized probably at first, and not often passedfrom one group of proprietors to another, While, however, the list ofthe Res Mancipi was irrevocably closed; that of the Res Nec Mancipiadmitted of indefinite expansion; and hence every fresh conquest ofman over material nature added an item to the Res Nec Mancipi, oreffected an improvement in those already recognised. Insensibly, therefore, they mounted to an equality with the Res Mancipi, and theimpression of an intrinsic inferiority being thus dissipated, menbegan to observe the manifold advantages of the simple formality whichaccompanied their transfer over the more intricate and more venerableceremonial. Two of the agents of legal amelioration, Fictions andEquity, were assiduously employed by the Roman lawyers to give thepractical effects of a Mancipation to a Tradition: and, though Romanlegislators long shrank from enacting that the right of property in aRes Mancipi should be immediately transferred by bare delivery of thearticle, yet even this step was at last ventured upon by Justinian, inwhose jurisprudence the difference between Res Mancipi and Res NecMancipi disappears, and Tradition or Delivery becomes the one greatconveyance known to the law. The marked preference which the Romanlawyers very early gave to Tradition caused them to assign it a placein their theory which has helped to blind their modern disciples toits true history. It was classed among the "natural" modes ofacquisition, both because it was generally practised among the Italiantribes, and because it was a process which attained its object by thesimplest mechanism. If the expressions of the jurisconsults bepressed, they undoubtedly imply that Tradition, which belongs to theLaw Natural, is more ancient than Mancipation, which is an institutionof Civil Society; and this, I need not say, is the exact reverse ofthe truth. The distinction between Res Mancipi and Res Nec Mancipi is the type ofa class of distinctions to which civilisation is much indebted, distinctions which run through the whole mass of commodities, placinga few of them in a class by themselves, and relegating the others to alower category. The inferior kinds of property are first, from disdainand disregard, released from the perplexed ceremonies in whichprimitive law delights, and thus afterwards, in another state ofintellectual progress, the simple methods of transfer and recoverywhich have been allowed to come into use serve as a model whichcondemns by its convenience and simplicity the cumbrous solemnitiesinherited from ancient days. But, in some societies, the trammels inwhich Property is tied up are much too complicated and stringent to berelaxed in so easy a manner. Whenever male children have been born toa Hindoo, the law of India, as I have stated, gives them all aninterest in his property, and makes their consent a necessarycondition of its alienation. In the same spirit, the general usage ofthe old Germanic peoples--it is remarkable that the Anglo-Saxoncustoms seem to have been an exception--forbade alienations withoutthe consent of the male children; and the primitive law of theSclavonians even prohibited them altogether. It is evident that suchimpediments as these cannot be overcome by a distinction between kindsof property, inasmuch as the difficulty extends to commodities of allsorts; and accordingly, Ancient Law, when once launched on a course ofimprovement, encounters them with a distinction of another character, a distinction classifying property, not according to its nature butaccording to its origin. In India, where there are traces of bothsystems of classification, the one which we are considering isexemplified in the difference which Hindoo law establishes betweenInheritances and Acquisitions. The inherited property of the father isshared by the children as soon as they are born; but according to thecustom of most provinces, the acquisitions made by him during hislifetime are wholly his own, and can be transferred by him atpleasure. A similar distinction was not unknown to Roman law, in whichthe earliest innovation on the Parental Powers took the form of apermission given to the son to keep for himself whatever he might haveacquired in military service. But the most extensive use ever made ofthis mode of classification appears to have been among the Germans. Ihave repeatedly stated that the _allod_, though not inalienable, wascommonly transferable with the greatest difficulty; and moreover, itdescended exclusively to the agnatic kindred. Hence an extraordinaryvariety of distinctions came to be recognised, all intended todiminish the inconveniences inseparable from allodial property. The_wehrgeld_, for example, or composition for the homicide of arelative, which occupies so large a space in German jurisprudence, formed no part of the family domain, and descended according to rulesof succession altogether different. Similarly, the _reipus_, or fineleviable on the re-marriage of a widow, did not enter into the_allod_ of the person to whom it was paid, and followed a line ofdevolution in which the privileges of the agnates were neglected. Thelaw, too, as among the Hindoos, distinguished the Acquisitions of thechief of the household from his Inherited property, and permitted himto deal with them under much more liberal conditions. Classificationsof the other sort were also admitted, and the familiar distinctiondrawn between land and moveables; but moveable property was dividedinto several subordinate categories, to each of which different rulesapplied. This exuberance of classification, which may strike us asstrange in so rude a people as the German conquerors of the Empire, isdoubtless to be explained by the presence in their systems of aconsiderable element of Roman law, absorbed by them during their longsojourn on the confines of the Roman dominion. It is not difficult totrace a great number of the rules governing the transfer anddevolution of the commodities which lay outside the _allod_, to theirsource in Roman jurisprudence, from which they were probably borrowedat widely distant epochs, and in fragmentary importations. How far theobstacles to the free circulation of property were surmounted by suchcontrivances, we have not the means even of conjecturing, for thedistinctions adverted to have no modern history. As I beforeexplained, the allodial form of property was entirely lost in thefeudal, and when the consolidation of feudalism was once completed, there was practically but one distinction left standing of all thosewhich had been known to the western world--the distinction betweenland and goods, immoveables and moveables. Externally this distinctionwas the same with that which Roman law had finally accepted, but thelaw of the middle ages differed from that of Rome in distinctlyconsidering immoveable property to be more dignified than moveable. Yet this one sample is enough to show the importance of the class ofexpedients to which it belongs. In all the countries governed bysystems based on the French codes, that is, through much the greatestpart of the Continent of Europe, the law of moveables, which wasalways 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 whichthe separation of moveables from immoveables has been somewhatdisturbed by the same influences which caused the ancientclassifications to depart from the only one which is countenanced bynature. In the main, the English distinction has been between land andgoods; but a certain class of goods have gone as heir-looms with theland, and a certain description of interests in land have fromhistorical causes been ranked with personalty. This is not the onlyinstance in which English jurisprudence, standing apart from the maincurrent of legal modification, has reproduced phenomena of archaiclaw. I proceed to notice one or two more contrivances by which the ancienttrammels of proprietary right were more or less successfully relaxed, premising that the scheme of this treatise only permits me to mentionthose which are of great antiquity. On one of them in particular it isnecessary to dwell for a moment or two, because persons unacquaintedwith the early history of law will not be easily persuaded that aprinciple, of which modern jurisprudence has very slowly and with thegreatest difficulty obtained the recognition, was really familiar tothe very infancy of legal science. There is no principle in all lawwhich the moderns, in spite of its beneficial character, have been soloath to adopt and to carry to its legitimate consequences as thatwhich was known to the Romans as Usucapion, and which has descended tomodern jurisprudence under the name of Prescription. It was a positiverule of the oldest Roman law, a rule older than the Twelve Tables, that commodities which had been uninterruptedly possessed for acertain period became the property of the possessor. The period ofpossession was exceedingly short--one or two years according to thenature of the commodities--and in historical times Usucapion was onlyallowed to operate when possession had commenced in a particular way;but I think it likely that at a less advanced epoch possession wasconverted into ownership under conditions even less severe than weread of in our authorities. As I have said before, I am far fromasserting that the respect of men for _de facto_ possession is aphenomenon which jurisprudence can account for by itself, but it isvery necessary to remark that primitive societies, in adopting theprinciple of Usucapion, were not beset with any of the speculativedoubts and hesitations which have impeded its reception among themoderns. Prescriptions were viewed by the modern lawyers, first withrepugnance, afterwards with reluctant approval. In several countries, including our own, legislation long declined to advance beyond therude device of barring all actions based on a wrong which had beensuffered earlier than a fixed point of time in the past, generally thefirst year of some preceding reign; nor was it till the middle ageshad finally closed, and James the First had ascended the throne ofEngland, that we obtained a true statute of limitation of a veryimperfect kind. This tardiness in copying one of the most famouschapters of Roman law, which was no doubt constantly read by themajority of European lawyers, the modern world owes to the influenceof the Canon Law. The ecclesiastical customs out of which the CanonLaw grew, concerned as they were with sacred or quasi-sacredinterests, very naturally regarded the privileges which they conferredas incapable of being lost through disuse however prolonged; and inaccordance with this view, the spiritual jurisprudence, whenafterwards consolidated, was distinguished by a marked leaning againstPrescriptions. It was the fate of the Canon Law, when held up by theclerical lawyers as a pattern to secular legislation, to have apeculiar influence on first principles. It gave to the bodies ofcustom which were formed throughout Europe far fewer express rulesthan did the Roman law, but then it seems to have communicated a biasto professional opinion on a surprising number of fundamental points, and the tendencies thus produced progressively gained strength as eachsystem was developed. One of the dispositions it produced was adisrelish for Prescriptions; but I do not know that this prejudicewould have operated as powerfully as it has done, if it had not fallenin 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 factindestructible. The remains of this state of feeling still exist. Wherever the philosophy of law is earnestly discussed, questionsrespecting the speculative basis of Prescription are always hotlydisputed; and it is still a point of the greatest interest in Franceand Germany, whether a person who has been out of possession for aseries of years is deprived of his ownership as a penalty for hisneglect, or loses it through the summary interposition of the law inits desire to have a _finis litium_. But no such scruples troubled themind of early Roman society. Their ancient usages directly took awaythe ownership of everybody who had been out of possession, undercertain circumstances, during one or two years. What was the exacttenor of the rule of Usucapion in its earliest shape, it is not easyto say; but, taken with the limitations which we find attending it inthe books, it was a most useful security against the mischiefs of atoo cumbrous system of conveyance. In order to have the benefit ofUsucapion, it was necessary that the adverse possession should havebegun in good faith, that is, with belief on the part of the possessorthat he was lawfully acquiring the property, and it was fartherrequired that the commodity should have been transferred to him bysome mode of alienation which, however unequal to conferring acomplete title in the particular case, was at least recognised by thelaw. In the case therefore of a Mancipation, however slovenly theperformance might have been, yet if it had been carried so far as toinvolve a Tradition or Delivery, the vice of the title would be curedby Usucapion in two years at most. I know nothing in the practice ofthe Romans which testifies so strongly to their legal genius as theuse which they made of Usucapion. The difficulties which beset themwere nearly the same with those which embarrassed and still embarrassthe lawyers of England. Owing to the complexity of their system, whichas yet they had neither the courage nor the power to reconstruct, actual right was constantly getting divorced from technical right, theequitable ownership from the legal. But Usucapion, as manipulated bythe jurisconsults, supplied a self-acting machinery, by which thedefects of titles to property were always in course of being cured, and by which the ownerships that were temporarily separated were againrapidly cemented together with the briefest possible delay. Usucapiondid not lose its advantages till the reforms of Justinian. But as soonas law and equity had been completely fused, and when Mancipationceased to be the Roman conveyance, there was no further necessity forthe ancient contrivance, and Usucapion, with its periods of timeconsiderably lengthened, became the Prescription which has at lengthbeen adopted by nearly all systems of modern law. I pass by with brief mention another expedient having the same objectwith the last, which, though it did not immediately make itsappearance in English legal history, was of immemorial antiquity inRoman law; such indeed is its apparent age that some German civilians, not sufficiently aware of the light thrown on the subject by theanalogies of English law, have thought it even older than theMancipation. I speak of the Cessio in Jure, a collusive recovery, in aCourt of law, of property sought to be conveyed. The plaintiff claimedthe subject of this proceeding with the ordinary forms of alitigation; the defendant made default; and the commodity was ofcourse adjudged to the plaintiff. I need scarcely remind the Englishlawyer that this expedient suggested itself to our forefathers, andproduced those famous Fines and Recoveries which did so much to undothe harshest trammels of the feudal land-law. The Roman and Englishcontrivances have very much in common and illustrate each other mostinstructively, but there is this difference between them, that theobject of the English lawyers was to remove complications alreadyintroduced into the title, while the Roman jurisconsults sought toprevent them by substituting a mode of transfer necessarilyunimpeachable for one which too often miscarried. The device is, infact, one which suggests itself as soon as Courts of Law are in steadyoperation, but are nevertheless still under the empire of primitivenotions. In an advanced state of legal opinion, tribunals regardcollusive litigation as an abuse of their procedure; but there hasalways been a time when, if their forms were scrupulously compliedwith, they never dreamed of looking further. The influence of Courts of Law and of their procedure upon Propertyhas been most extensive, but the subject is too large for thedimensions of this treatise, and would carry us further down thecourse of legal history than is consistent with its scheme. It isdesirable, however, to mention, that to this influence we mustattribute the importance of the distinction between Property andPossession--not, indeed, the distinction itself, which (in thelanguage of an eminent English civilian) is the same thing as thedistinction between the legal right to act upon a thing and thephysical power to do so--but the extraordinary importance which thedistinction has obtained in the philosophy of law. Few educatedpersons are so little versed in legal literature as not to have heardthat the language of the Roman jurisconsults on the subject ofPossession long occasioned the greatest possible perplexity, and thatthe genius of Savigny is supposed to have chiefly proved itself by thesolution which he discovered for the enigma. Possession, in fact, whenemployed by the Roman lawyers, appears to have contracted a shade ofmeaning not easily accounted for. The word, as appears from itsetymology, must have originally denoted physical contact or physicalcontact resumeable at pleasure; but, as actually used without anyqualifying epithet, it signifies not simply physical detention, butphysical detention coupled with the intention to hold the thingdetained as one's own. Savigny, following Niebuhr, perceived that forthis anomaly there could only be a historical origin. He pointed outthat the Patrician burghers of Rome, who had become tenants of thegreatest part of the public domain at nominal rents, were, in the viewof the old Roman law, mere possessors, but then they were possessorsintending to keep their land against all comers. They, in truth, putforward a claim almost identical with that which has recently beenadvanced in England by the lessees of Church lands. Admitting that intheory they were the tenants-at-will of the state, they contended thattime and undisturbed enjoyment had ripened their holding into aspecies of ownership, and that it would be unjust to eject them forthe purpose of redistributing the domain. The association of thisclaim with the Patrician tenancies, permanently influenced the senseof "possession. " Meanwhile the only legal remedies of which thetenants could avail themselves, if ejected or threatened withdisturbance, were the Possessory Interdicts, summary processes ofRoman law which were either expressly devised by the Prætor for theirprotection, or else, according to another theory, had in older timesbeen employed for the provisional maintenance of possessions pendingthe settlement of questions of legal right. It came, therefore, to beunderstood that everybody who possessed property _as his own_ had thepower of demanding the Interdicts, and, by a system of highlyartificial pleading, the Interdictal process was moulded into a shapefitted for the trial of conflicting claims to a disputed possession. Then commenced a movement which, as Mr. John Austin pointed out, exactly reproduced itself in English law. Proprietors, _domini_, beganto prefer the simpler forms or speedier course of the Interdict to thelagging and intricate formalities of the Real Action, and for thepurpose of availing themselves of the possessory remedy fell backupon the possession which was supposed to be involved in theirproprietorship. The liberty conceded to persons who were not truePossessors, but Owners, to vindicate their rights by possessoryremedies, though it may have been at first a boon, had ultimately theeffect of seriously deteriorating both English and Romanjurisprudence. The Roman law owes to it those subtleties on thesubject of Possession which have done so much to discredit it, whileEnglish law, after the actions which it appropriated to the recoveryof real property had fallen into the most hopeless confusion, got ridat last of the whole tangled mass by a heroic remedy. No one can doubtthat the virtual abolition of the English real actions which tookplace nearly thirty years since was a public benefit, but stillpersons sensitive to the harmonies of jurisprudence will lament that, instead of cleansing, improving, and simplifying the true proprietaryactions, 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 modifyconceptions of proprietary right by means of the distinction betweenLaw and Equity, which always makes its first appearance as adistinction between jurisdictions. Equitable property in England issimply property held under the jurisdiction of the Court of Chancery. At Rome, the Prætor's Edict introduced its novel principles in theguise of a promise that under certain circumstances a particularaction or a particular plea would be granted; and, accordingly, theproperty _in bonis_, or Equitable Property, of Roman law was propertyexclusively protected by remedies which had their source in the Edict. The mechanism by which equitable rights were saved from beingoverridden by the claims of the legal owner was somewhat different inthe two systems. With us their independence is secured by theInjunction of the Court of Chancery. Since however Law and Equity, while not as yet consolidated, were administered under the Romansystem by the same Court, nothing like the Injunction was required, and the Magistrate took the simpler course of refusing to grant to theCivil Law Owner those actions and pleas by which alone he could obtainthe property that belonged in equity to another. But the practicaloperation of both systems was nearly the same. Both, by means of adistinction in procedure, were able to preserve new forms of propertyin a sort of provisional existence, until the time should come whenthey were recognised by the whole law. In this way, the Roman Prætorgave an immediate right of property to the person who had acquired aRes Mancipi by mere delivery, without waiting for the ripening ofUsucapion. Similarly he in time recognised an ownership in theMortgagee who had at first been a mere "bailee" or depositary, and inthe Emphyteuta, or tenant of land which was subject to a fixedperpetual rent. Following a parallel line of progress, the EnglishCourt of Chancery created a special proprietorship for the Mortgagor, for the Cestui que Trust, for the Married Woman who had the advantageof a particular kind of settlement, and for the Purchaser who had notyet acquired a complete legal ownership. All these are examples inwhich forms of proprietory right, distinctly new, were recognised andpreserved. But indirectly Property has been affected in a thousandways by equity both in England and at Rome. Into whatever corner ofjurisprudence its authors pushed the powerful instrument in theircommand, they were sure to meet, and touch, and more or lessmaterially modify the law of property. When in the preceding pages Ihave spoken of certain ancient legal distinctions and expedients ashaving powerfully affected the history of ownership, I must beunderstood to mean that the greatest part of their influence hasarisen from the hints and suggestions of improvement infused by theminto the mental atmosphere which was breathed by the fabricators ofequitable systems. But to describe the influence of Equity on Ownership would be to writeits history down to our own days. I have alluded to it principallybecause several esteemed contemporary writers have thought that in theRoman severance of Equitable from Legal property we have the clue tothat difference in the conception of Ownership, which apparentlydistinguishes the law of the middle ages from the law of the RomanEmpire. The leading characteristic of the feudal conception is itsrecognition of a double proprietorship, the superior ownership of thelord of the fief co-existing with the inferior property or estate ofthe tenant. Now, this duplication of proprietary right looks, it isurged, extremely like a generalised form of the Roman distribution ofrights over property into _Quiritarian_ or legal, and (to use a wordof late origin) _Bonitarian_ or equitable. Gaius himselfobserves upon the splitting of _dominion_ into two parts as asingularity of Roman law, and expressly contrasts it with the entireor allodial ownership to which other nations were accustomed. Justinian, it is true, re-consolidated dominion into one, but then itwas the partially reformed system of the Western Empire, and notJustinian's jurisprudence, with which the barbarians were in contactduring so many centuries. While they remained poised on the edge ofthe Empire, it may well be that they learned this distinction, whichafterwards bore remarkable fruit. In favour of this theory, it must atall events be admitted that the element of Roman law in the variousbodies of barbarian custom has been very imperfectly examined. Theerroneous or insufficient theories which have served to explainFeudalism resemble each other in their tendency to draw off attentionfrom this particular ingredient in its texture. The olderinvestigators, who have been mostly followed in this country, attachedan exclusive importance to the circumstances of the turbulent periodduring which the Feudal system grew to maturity; and in later times anew source of error has been added to those already existing, in thatpride of nationality which has led German writers to exaggerate thecompleteness of the social fabric which their forefathers had built upbefore their appearance in the Roman world. One or two Englishinquirers who looked in the right quarter for the foundations of thefeudal system, failed nevertheless to conduct their investigations toany satisfactory result, either from searching too exclusively foranalogies in the compilations of Justinian, or from confining theirattention to the compendia of Roman law which are found appended tosome of the extant barbarian codes. But, if Roman jurisprudence hadany influence on the barbarous societies, it had probably produced thegreatest part of its effects before the legislation of Justinian, andbefore the preparation of these compendia. It was not the reformed andpurified jurisprudence of Justinian, but the undigested system whichprevailed in the Western Empire, and which the Eastern _Corpus Juris_never succeeded in displacing, that I conceive to have clothed withflesh and muscle the scanty skeleton of barbarous usage. The changemust be supposed to have taken place before the Germanic tribes haddistinctly appropriated, as conquerors, any portion of the Romandominions, and therefore long before Germanic monarchs had orderedbreviaries of Roman law to be drawn up for the use of their Romansubjects. The necessity for some such hypothesis will be felt byeverybody who can appreciate the difference between archaic anddeveloped law. Rude as are the _Leges Barbarorum_ which remain to us, they are not rude enough to satisfy the theory of their purelybarbarous origin; nor have we any reason for believing that we havereceived, in written records, more than a fraction of the fixed ruleswhich were practised among themselves by the members of the conqueringtribes. If we can once persuade ourselves that a considerable elementof debased Roman law already existed in the barbarian systems, weshall have done something to remove a grave difficulty. The German lawof the conquerors and the Roman law of their subjects would not havecombined if they had not possessed more affinity for each other thanrefined jurisprudence has usually for the customs of savages. It isextremely likely that the codes of the barbarians, archaic as theyseem, are only a compound of true primitive usage with half-understoodRoman rules, and that it was the foreign ingredient which enabled themto coalesce with a Roman jurisprudence that had already recededsomewhat from the comparative finish which it had acquired under theWestern Emperors. But, though all this must be allowed, there are several considerationswhich render it unlikely that the feudal form of ownership wasdirectly suggested by the Roman duplication of domainial rights. Thedistinction between legal and equitable property strikes one as asubtlety little likely to be appreciated by barbarians; and, moreover, it can scarcely be understood unless Courts of Law are contemplated inregular operation. But the strongest reason against this theory is theexistence in Roman Law of a form of property--a creation of Equity, itis true--which supplies a much simpler explanation of the transitionfrom one set of ideas to the other. This is the Emphyteusis, uponwhich the Fief of the middle ages has often been fathered, thoughwithout much knowledge of the exact share which it had in bringingfeudal ownership into the world. The truth is that the Emphyteusis, not probably as yet known by its Greek designation, marks one stage ina current of ideas which led ultimately to feudalism. The firstmention in Roman history of estates larger than could be farmed by aPaterfamilias, with his household of sons and slaves, occurs when wecome to the holdings of the Roman patricians. These great proprietorsappear to have had no idea of any system of farming by free tenants. Their _latifundia_ seem to have been universally cultivated byslave-gangs, under bailiffs who were themselves slaves or freedmen;and the only organisation attempted appears to have consisted individing the inferior slaves into small bodies, and making them the_peculium_ of the better and trustier sort, who thus acquired a kindof interest in the efficiency of their labour. This system was, however, especially disadvantageous to one class of estatedproprietors, the Municipalities. Functionaries in Italy were changedwith the rapidity which often surprises us in the administration ofRome herself; so that the superintendence of a large landed domain byan Italian corporation must have been excessively imperfect. Accordingly, we are told that with the municipalities began thepractice of letting out _agri vectigules_, that is, of leasing landfor a perpetuity to a free tenant, at a fixed rent, and under certainconditions. The plan was afterwards extensively imitated by individualproprietors, and the tenant, whose relation to the owner hadoriginally been determined by his contract, was subsequentlyrecognised by the Prætor as having himself a qualified proprietorship, which in time became known as an Emphyteusis. From this point thehistory of tenure parts into two branches. In the course of that longperiod during which our records of the Roman Empire are mostincomplete, the slave-gangs of the great Roman families becametransformed into the _coloni_, whose origin and situation constituteone of the obscurest questions in all history. We may suspect thatthey were formed partly by the elevation of the slaves, and partly bythe degradation of the free farmers; and that they prove the richerclasses of the Roman Empire to have become aware of the increasedvalue which landed property obtains when the cultivator had aninterest in the produce of the land. We know that their servitude waspredial; that it wanted many of the characteristics of absoluteslavery, and that they acquitted their service to the landlord inrendering to him a fixed portion of the annual crop. We know furtherthat they survived all the mutations of society in the ancient andmodern worlds. Though included in the lower courses of the feudalstructure, they continued in many countries to render to the landlordprecisely the same dues which they had paid to the Roman _dominus_, and from a particular class among them, the _coloni medietarii_ whoreserved half the produce for the owner, are descended the _metayer_tenantry, who still conduct the cultivation of the soil in almost allthe South of Europe. On the other hand, the Emphyteusis, if we may sointerpret the allusions to it in the _Corpus Juris_, became afavourite and beneficial modification of property; and it may beconjectured that wherever free farmers existed, it was this tenurewhich regulated their interest in the land. The Prætor, as has beensaid, treated the Emphyteuta as a true proprietor. When ejected, hewas allowed to reinstate himself by a Real Action, the distinctivebadge of proprietory right, and he was protected from disturbance bythe author of his lease so long as the _canon_, or quit-rent, waspunctually paid. But at the same time it must not be supposed that theownership of the author of the lease was either extinct or dormant. Itwas kept alive by a power of re-entry on nonpayment of the rent, aright of pre-emption in case of sale, and a certain control over themode of cultivation. We have, therefore, in the Emphyteusis a strikingexample of the double ownership which characterised feudal property, and one, moreover, which is much simpler and much more easily imitatedthan the juxtaposition of legal and equitable rights. The history ofthe Roman tenure does not end, however, at this point. We have clearevidence that between the great fortresses which, disposed along theline of the Rhine and Danube, long secured the frontier of the Empireagainst its barbarian neighbours, there extended a succession ofstrips of land, the _agri limitrophi_, which were occupied by veteransoldiers of the Roman army on the terms of an Emphyteusis. There was adouble ownership. The Roman State was landlord of the soil, but thesoldiers cultivated it without disturbance so long as they heldthemselves ready to be called out for military service whenever thestate of the border should require it. In fact, a sort ofgarrison-duty, under a system closely resembling that of the militarycolonies on the Austro-Turkish border, had taken the place of thequit-rent which was the service of the ordinary Emphyteuta. It seemsimpossible to doubt that this was the precedent copied by thebarbarian monarchs who founded feudalism. It had been within theirview for some hundred years, and many of the veterans who guarded theborder were, it is to be remembered, themselves of barbarianextraction, who probably spoke the Germanic tongues. Not only does theproximity of so easily followed a model explain whence the Frankishand Lombard Sovereigns got the idea of securing the military serviceof their followers by granting away portions of their public domain;but it perhaps explains the tendency which immediately showed itselfin the Benefices to become hereditary, for an Emphyteusis, thoughcapable 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 lordof one of those fiefs into which the benefices were transformed, appears to have owed certain services which were not likely to havebeen rendered by the military colonist, and were certainly notrendered by the Emphyteuta. The duty of respect and gratitude to thefeudal superior, the obligation to assist in endowing his daughter andequipping his son, the liability to his guardianship in minority, andmany other similar incidents of tenure, must have been literallyborrowed from the relations of Patron and Freedman under Roman law, that is, of quondam-master and quondam-slave. But then it is knownthat the earliest beneficiaries were the personal companions of thesovereign, and it is indisputable that this position, brilliant as itseems, was at first attended by some shade of servile debasement. Theperson who ministered to the Sovereign in his Court had given upsomething of that absolute personal freedom which was the proudestprivilege of the allodial proprietor. CHAPTER IX THE EARLY HISTORY OF CONTRACT There are few general propositions concerning the age to which webelong which seem at first sight likely to be received with readierconcurrence than the assertion that the society of our day is mainlydistinguished from that of preceding generations by the largeness ofthe sphere which is occupied in it by Contract. Some of the phenomenaon which this proposition rests are among those most frequentlysingled out for notice, for comment, and for eulogy. Not many of usare so unobservant as not to perceive that in innumerable cases whereold law fixed a man's social position irreversibly at his birth, modern law allows him to create it for himself by convention; andindeed several of the few exceptions which remain to this rule areconstantly denounced with passionate indignation. The point, forinstance, which is really debated in the vigorous controversy stillcarried on upon the subject of negro servitude, is whether the statusof the slave does not belong to bygone institutions, and whether theonly relation between employer and labourer which commends itself tomodern morality be not a relation determined exclusively by contract. The recognition of this difference between past ages and the presententers into the very essence of the most famous contemporaryspeculations. It is certain that the science of Political Economy, theonly department of moral inquiry which has made any considerableprogress in our day, would fail to correspond with the facts of lifeif it were not true that Imperative Law had abandoned the largest partof the field which it once occupied, and had left men to settle rulesof conduct for themselves with a liberty never allowed to them tillrecently. The bias indeed of most persons trained in political economyis to consider the general truth on which their science reposes asentitled to become universal, and, when they apply it as an art, theirefforts are ordinarily directed to enlarging the province of Contractand to curtailing that of Imperative Law, except so far as law isnecessary to enforce the performance of Contracts. The impulse givenby thinkers who are under the influence of these ideas is beginning tobe very strongly felt in the Western world. Legislation has nearlyconfessed its inability to keep pace with the activity of man indiscovery, in invention, and in the manipulation of accumulatedwealth; and the law even of the least advanced communities tends moreand more to become a mere surface-stratum having under it anever-changing assemblage of contractual rules with which it rarelyinterferes except to compel compliance with a few fundamentalprinciples or unless it be called in to punish the violation of goodfaith. Social inquiries, so far as they depend on the consideration of legalphenomena, are in so backward a condition that we need not besurprised at not finding these truths recognised in the commonplaceswhich pass current concerning the progress of society. Thesecommonplaces answer much more to our prejudices than to ourconvictions. The strong disinclination of most men to regard moralityas advancing seems to be especially powerful when the virtues on whichContract depends are in question, and many of us have almostinstinctive reluctance to admitting that good faith and trust in ourfellows are more widely diffused than of old, or that there isanything in contemporary manners which parallels the loyalty of theantique world. From time to time, these prepossessions are greatlystrengthened by the spectacle of frauds, unheard of before the periodat which they were observed, and astonishing from their complicationas well as shocking from criminality. But the very character of thesefrauds shows clearly that, before they became possible, the moralobligations of which they are the breach must have been more thanproportionately developed. It is the confidence reposed and deservedby the many which affords facilities for the bad faith of the few, sothat, if colossal examples of dishonesty occur, there is no surerconclusion than that scrupulous honesty is displayed in the average ofthe transactions which, in the particular case, have supplied thedelinquent with his opportunity. If we insist on reading the historyof morality as reflected in jurisprudence, by turning our eyes not onthe law of Contract but on the law of Crime, we must be careful thatwe read it aright. The only form of dishonesty treated of in the mostancient Roman law is Theft. At the moment at which I write, thenewest chapter in the English criminal law is one which attempts toprescribe punishment for the frauds of Trustees. The proper inferencefrom this contrast is not that the primitive Romans practised a highermorality than ourselves. We should rather say that, in the intervalbetween their days and ours, morality has advanced from a very rude toa highly refined conception--from viewing the rights of property asexclusively sacred, to looking upon the rights growing out of the mereunilateral reposal of confidence as entitled to the protection of thepenal law. The definite theories of jurists are scarcely nearer the truth in thispoint than the opinions of the multitude. To begin with the views ofthe Roman lawyers, we find them inconsistent with the true history ofmoral and legal progress. One class of contracts, in which theplighted faith of the contracting parties was the only materialingredient, they specifically denominated Contracts _juris gentium_, and though these contracts were undoubtedly the latest born into theRoman system, the expression employed implies, if a definite meaningbe extracted from it, that they were more ancient than certain otherforms of engagement treated of in Roman law, in which the neglect of amere technical formality was as fatal to the obligation asmisunderstanding or deceit. But then the antiquity to which they werereferred was vague, shadowy, and only capable of being understoodthrough the Present; nor was it until the language of the Romanlawyers became the language of an age which had lost the key to theirmode of thought that a "Contract of the Law of Nations" came to bedistinctly looked upon as a Contract known to man in a State ofNature. Rousseau adopted both the juridical and the popular error. Inthe Dissertation on the effects of Art and Science upon Morals, thefirst of his works which attracted attention and the one in which hestates most unreservedly the opinions which made him the founder of asect, the veracity and good faith attributed to the ancient Persiansare repeatedly pointed out as traits of primitive innocence which havebeen gradually obliterated by civilisation; and at a later period hefound a basis for all his speculations in the doctrine of an originalSocial Contract. The Social Contract or Compact is the most systematicform which has ever been assumed by the error we are discussing. Itis a theory which, though nursed into importance by politicalpassions, derived all its sap from the speculations of lawyers. Trueit certainly is that the famous Englishmen, for whom it had first hadattraction, valued it chiefly for its political serviceableness, but, as I shall presently attempt to explain, they would never have arrivedat it, if politicians had not long conducted their controversies inlegal phraseology. Nor were the English authors of the theory blind tothat speculative amplitude which recommended it so strongly to theFrenchmen who inherited it from them. Their writings show theyperceived that it could be made to account for all social, quite aswell as for all political phenomena. They had observed the fact, already striking in their day, that of the positive rules obeyed bymen, the greater part were created by Contract, the lesser byImperative Law. But they were ignorant or careless of the historicalrelation of these two constituents of jurisprudence. It was for thepurpose, therefore, of gratifying their speculative tastes byattributing all jurisprudence to a uniform source, as much as with theview of eluding the doctrines which claimed a divine parentage forImperative Law, that they devised the theory that all Law had itsorigin in Contract. In another stage of thought, they would have beensatisfied to leave their theory in the condition of an ingenioushypothesis or a convenient verbal formula. But that age was under thedominion of legal superstitions. The State of Nature had been talkedabout till it had ceased to be regarded as paradoxical, and hence itseemed easy to give a fallacious reality and definiteness to thecontractual origin of Law by insisting on the Social Compact as ahistorical fact. Our own generation has got rid of these erroneous juridical theories, partly by outgrowing the intellectual state to which they belong, andpartly by almost ceasing to theorise on such subjects altogether. Thefavourite occupation of active minds at the present moment, and theone which answers to the speculations of our forefathers on the originof the social state, is the analysis of society as it exists and movesbefore our eyes; but, through omitting to call in the assistance ofhistory, this analysis too often degenerates into an idle exercise ofcuriosity, and is especially apt to incapacitate the inquirer forcomprehending states of society which differ considerably from that towhich he is accustomed. The mistake of judging the men of otherperiods by the morality of our own day has its parallel in the mistakeof supposing that every wheel and bolt in the modern social machinehad its counterpart in more rudimentary societies. Such impressionsramify very widely, and masque themselves very subtly, in historicalworks written in the modern fashion; but I find the trace of theirpresence in the domain of jurisprudence in the praise which isfrequently bestowed on the little apologue of Montesquieu concerningthe Troglodytes, inserted in the _Lettres Persanes_. The Troglodyteswere a people who systematically violated their Contracts, and soperished utterly. If the story bears the moral which its authorintended, and is employed to expose an anti-social heresy by whichthis century and the last have been threatened, it is mostunexceptionable; but if the inference be obtained from it that societycould not possibly hold together without attaching a sacredness topromises and agreements which should be on something like a par withthe respect that is paid to them by a mature civilisation, it involvesan error so grave as to be fatal to all sound understanding of legalhistory. The fact is that the Troglodytes have flourished and foundedpowerful states with very small attention to the obligations ofContract. The point which before all others has to be apprehended inthe constitution of primitive societies is that the individual createsfor himself few or no rights, and few or no duties. The rules which heobeys are derived first from the station into which he is born, andnext from the imperative commands addressed to him by the chief of thehousehold of which he forms part. Such a system leaves the verysmallest room for Contract. The members of the same family (for so wemay interpret the evidence) are wholly incapable of contracting witheach other, and the family is entitled to disregard the engagements bywhich any one of its subordinate members has attempted to bind it. Family, it is true, may contract with family, chieftain withchieftain, but the transaction is one of the same nature, andencumbered by as many formalities, as the alienation of property, andthe disregard of one iota of the performance is fatal to theobligation. The positive duty resulting from one man's reliance on theword of another is among the slowest conquests of advancingcivilisation. Neither Ancient Law nor any other source of evidence discloses to ussociety entirely destitute of the conception of Contract. But theconception, when it first shows itself, is obviously rudimentary. Notrustworthy primitive record can be read without perceiving that thehabit of mind which induces us to make good a promise is as yetimperfectly developed, and that acts of flagrant perfidy are oftenmentioned without blame and sometimes described with approbation. Inthe Homeric literature, for instance, the deceitful cunning of Ulyssesappears as a virtue of the same rank with the prudence of Nestor, theconstancy of Hector, and the gallantry of Achilles. Ancient law isstill more suggestive of the distance which separates the crude formof Contract from its maturity. At first, nothing is seen like theinterposition of law to compel the performance of a promise. Thatwhich the law arms with its sanctions is not a promise, but a promiseaccompanied with a solemn ceremonial. Not only are formalities ofequal importance with the promise itself, but they are, if anything, of greater importance; for that delicate analysis which maturejurisprudence applies to the conditions of mind under which aparticular verbal assent is given appears, in ancient law, to betransferred 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 accuratelyproceeded with, it is of no avail to plead that the promise was madeunder duress or deception. The transmutation of this ancient view intothe familiar notion of a Contract is plainly seen in the history ofjurisprudence. First one or two steps in the ceremonial are dispensedwith; then the others are simplified or permitted to be neglected oncertain conditions; lastly, a few specific contracts are separatedfrom the rest and allowed to be entered into without form, theselected contracts being those on which the activity and energy ofsocial intercourse depends. Slowly, but most distinctly, the mentalengagement isolates itself amid the technicalities, and graduallybecomes the sole ingredient on which the interest of the jurisconsultis concentrated. Such a mental engagement, signified through externalacts, the Romans called a Pact or Convention; and when the Conventionhas once been conceived as the nucleus of a Contract, it soon becomesthe tendency of advancing jurisprudence to break away the externalshell of form and ceremony. Forms are thenceforward only retained sofar as they are guarantees of authenticity, and securities forcaution and deliberation. The idea of a Contract is fully developed, or, to employ the Roman phrase, Contracts are absorbed in Pacts. The history of this course of change in Roman law is exceedinglyinstructive. At the earliest dawn of the jurisprudence, the term inuse for a Contract was one which is very familiar to the students ofhistorical Latinity. It was _nexum_, and the parties to the contractwere said to be _nexi_, expressions which must be carefully attendedto on account of the singular durableness of the metaphor on whichthey are founded. The notion that persons under a contractualengagement are connected together by a strong _bond_ or _chain_, continued till the last to influence the Roman jurisprudence ofContract; and flowing thence it has mixed itself with modern ideas. What then was involved in this nexum or bond? A definition which hasdescended to us from one of the Latin antiquarians describes _nexum_as _omne quod geritur per æs et libram_, "every transaction with thecopper and the balance, " and these words have occasioned a good dealof perplexity. The copper and the balance are the well-knownaccompaniments of the Mancipation, the ancient solemnity described ina former chapter, by which the right of ownership in the highest formof Roman Property was transferred from one person to another. Mancipation was a _conveyance_, and hence has arisen the difficulty, for the definition thus cited appears to confound Contracts andConveyances, which in the philosophy of jurisprudence are not simplykept apart, but are actually opposed to each other. The _jus in re_, right _in rem_, right "availing against all the world, " or ProprietaryRight, is sharply distinguished by the analyst of mature jurisprudencefrom the _jus ad rem_, right _in personam_, right "availing a singleindividual or group, " or obligation. Now Conveyances transferProprietary Rights, Contracts create Obligations--how then can the twobe included under the same name or same general conception? This, likemany similar embarrassments, has been occasioned by the error ofascribing to the mental condition of an unformed society a facultywhich pre-eminently belongs to an advanced stage of intellectualdevelopment, the faculty of distinguishing in speculation ideas whichare blended in practice. We have indications not to be mistaken of astate of social affairs in which Conveyances and Contracts werepractically confounded; nor did the discrepance of the conceptionsbecome perceptible till men had begun to adopt a distinct practice incontracting and conveying. It may here be observed that we know enough of ancient Roman law togive some idea of the mode of transformation followed by legalconceptions and by legal phraseology in the infancy of Jurisprudence. The change which they undergo appears to be a change from general tospecial; or, as we might otherwise express it, the ancient conceptionsand the ancient terms are subjected to a process of gradualspecialisation. An ancient legal conception corresponds not to one butto several modern conceptions. An ancient technical expression servesto indicate a variety of things which in modern law have separatenames allotted to them. If however we take up the history ofJurisprudence at the next stage, we find that the subordinateconceptions have gradually disengaged themselves and that the oldgeneral names are giving way to special appellations. The old generalconception is not obliterated, but it has ceased to cover more thanone or a few of the notions which it first included. So too the oldtechnical name remains, but it discharges only one of the functionswhich it once performed. We may exemplify this phenomenon in variousways. Patriarchal Power of all sorts appears, for instance, to havebeen once conceived as identical in character, and it was doubtlessdistinguished by one name. The Power exercised by the ancestor was thesame whether it was exercised over the family or the materialproperty--over flocks, herds, slaves, children, or wife. We cannot beabsolutely certain of its old Roman name, but there is very strongreason for believing, from the number of expressions indicating shadesof the notion of _power_ into which the word _manus_ enters, that theancient general term was _manus_. But, when Roman law has advanced alittle, both the name and the idea have become specialised. Power isdiscriminated, both in word and in conception, according to theobject over which it is exerted. Exercised over material commoditiesor slaves, it has become _dominium_--over children, it is_Potestas_--over free persons whose services have been made away toanother by their own ancestor, it is _mancipium_--over a wife, it isstill _manus_. The old word, it will be perceived, has not altogetherfallen into desuetude, but is confined to one very special exerciseof the authority it had formerly denoted. This example will enable usto comprehend the nature of the historical alliance between Contractsand Conveyances. There seems to have been one solemn ceremonial atfirst for all solemn transactions, and its name at Rome appears tohave been _nexum_. Precisely the same forms which were in use when aconveyance of property was effected seem to have been employed in themaking of a contract. But we have not very far to move onwards beforewe come to a period at which the notion of a Contract has disengageditself from the notion of a Conveyance. A double change has thus takenplace. The transaction "with the copper and the balance, " whenintended to have for its office the transfer of property, is known bythe new and special name of Mancipation. The ancient Nexum stilldesignates the same ceremony, but only when it is employed for thespecial purpose of solemnising a contract. When two or three legal conceptions are spoken of as anciently blendedin one, it is not intended to imply that some one of the includednotions may not be older than the others, or, when those others havebeen formed, may not greatly predominate over and take precedence overthem. The reason why one legal conception continues so long to coverseveral conceptions, and one technical phrase to do instead ofseveral, is doubtless that practical changes are accomplished in thelaw of primitive societies long before men see occasion to notice orname them. Though I have said that Patriarchal Power was not at firstdistinguished according to the objects over which it was exercised, Ifeel sure that Power over Children was the root of the old conceptionof Power; and I cannot doubt that the earliest use of the Nexum, andthe one primarily regarded by those who resorted to it, was to giveproper solemnity to the alienation of property. It is likely that avery slight perversion of the Nexum from its original functions firstgave rise to its employment in Contracts, and that the very slightnessof the change long prevented its being appreciated or noticed. The oldname remained because men had not become conscious that they wanted anew one; the old notion clung to the mind because nobody had seenreason to be at the pains of examining it. We have had the processclearly exemplified in the history of Testaments. A Will was at firsta simple conveyance of property. It was only the enormous practicaldifference that gradually showed itself between this particularconveyance and all others which caused it to be regarded separately, and even as it was, centuries elapsed before the ameliorators of lawcleared away the useless encumbrance of the nominal mancipation, andconsented to care for nothing in the Will but the expressed intentionsof the Testator. It is unfortunate that we cannot track the earlyhistory of Contracts with the same absolute confidence as the earlyhistory of Wills, but we are not quite without hints that contractsfirst showed themselves through the _nexum_ being put to a new use andafterwards obtained recognition as distinct transactions through theimportant practical consequences of the experiment. There is some, butnot very violent, conjecture in the following delineation of theprocess. Let us conceive a sale for ready money as the normal type ofthe Nexum. The seller brought the property of which he intended todispose--a slave, for example--the purchaser attended with the roughingots of copper which served for money--and an indispensableassistant, the _libripens_, presented himself with a pair of scales. The slave with certain fixed formalities was handed over to thevendee--the copper was weighed by the _libripens_ and passed to thevendor. So long as the business lasted it was a _nexum_, and theparties were _nexi_; but the moment it was completed, the _nexum_ended, and the vendor and purchaser ceased to bear the name derivedfrom their momentary relation. But now, let us move a step onward incommercial history. Suppose the slave transferred, but the money notpaid. In _that_ case, the _nexum_ is finished, so far as the seller isconcerned, and when he has once handed over his property, he is nolonger _nexus_; but, in regard to the purchaser, the _nexum_continues. The transaction, as to his part of it, is incomplete, andhe is still considered to be _nexus_. It follows, therefore, that thesame term described the Conveyance by which the right of property wastransmitted, and the personal obligation of the debtor for the unpaidpurchase-money. We may still go forward, and picture to ourselves aproceeding wholly formal, in which _nothing_ is handed over and_nothing_ paid; we are brought at once to a transaction indicative ofmuch 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_, thetruth has importance for many reasons. The speculations of the lastcentury concerning mankind in a state of nature, are not unfairlysummed up in the doctrine that "in the primitive society property wasnothing, and obligation everything;" and it will now be seen that, ifthe proposition were reversed, it would be nearer the reality. On theother hand, considered historically, the primitive association ofConveyances and Contracts explains something which often strikes thescholar and jurist as singularly enigmatical, I mean the extraordinaryand uniform severity of very ancient systems of law to _debtors_, andthe extravagant powers which they lodge with _creditors_. When once weunderstand that the _nexum_ was artificially prolonged to give time tothe debtor, we can better comprehend his position in the eye of thepublic and of the law. His indebtedness was doubtless regarded as ananomaly, and suspense of payment in general as an artifice and adistortion of strict rule. The person who had duly consummated hispart in the transaction must, on the contrary, have stood in peculiarfavour; and nothing would seem more natural than to arm him withstringent facilities for enforcing the completion of a proceedingwhich, of strict right, ought never to have been extended or deferred. Nexum, therefore, which originally signified a Conveyance of property, came insensibly to denote a Contract also, and ultimately so constantbecame the association between this word and the notion of a Contract, that a special term, Mancipium or Mancipatio, had to be used for thepurpose of designating the true nexum or transaction in which theproperty was really transferred. Contracts are therefore now severedfrom Conveyances, and the first stage in their history isaccomplished, but still they are far enough from that epoch of theirdevelopment when the promise of the contractor has a higher sacrednessthan the formalities with which it is coupled. In attempting toindicate the character of the changes passed through in this interval, it is necessary to trespass a little on a subject which lies properlybeyond the range of these pages, the analysis of Agreement effected bythe Roman jurisconsults. Of this analysis, the most beautiful monumentof their sagacity, I need not say more than that it is based on thetheoretical separation of the Obligation from the Convention or Pact. Bentham and Mr. Austin have laid down that the "two main essentials ofa contract are these: first, a signification by the promising party ofhis _intention_ to do the acts or to observe the forbearances which hepromises to do or to observe. Secondly, a signification by thepromisee that he _expects_ the promising party will fulfil theproffered promise. " This is virtually identical with the doctrine ofthe Roman lawyers, but then, in their view, the result of these"significations" was not a Contract, but a Convention or Pact. A Pactwas the utmost product of the engagements of individuals agreeingamong themselves, and it distinctly fell short of a Contract. Whetherit ultimately became a Contract depended on the question whether thelaw annexed an Obligation to it. A Contract was a Pact (or Convention)_plus_ an Obligation. So long as the Pact remained unclothed with theObligation, it was called _nude_ or _naked_. What was an Obligation? It is defined by the Roman lawyers as "Jurisvinculum, quo necessitate adstringimur alicujus solvendæ rei. " Thisdefinition connects the Obligation with the Nexum through the commonmetaphor on which they are founded, and shows us with much clearnessthe pedigree of a peculiar conception. The Obligation is the "bond" or"chain" with which the law joins together persons or groups ofpersons, in consequence of certain voluntary acts. The acts which havethe effect of attracting an Obligation are chiefly those classed underthe heads of Contract and Delict, of Agreement and Wrong; but avariety of other acts have a similar consequence which are not capableof being comprised in an exact classification. It is to be remarked, however, that the act does not draw to itself the Obligation inconsequence of any moral necessity; it is the law which annexes it inthe plenitude of its power, a point the more necessary to be noted, because a different doctrine has sometimes been propounded by moderninterpreters of the Civil Law who had moral or metaphysical theoriesof their own to support. The image of a _vinculum juris_ colours andpervades every part of the Roman law of Contract and Delict. The lawbound the parties together, and the _chain_ could only be undone bythe process called _solutio_, an expression still figurative, to whichour word "payment" is only occasionally and incidentally equivalent. The consistency with which the figurative image was allowed to presentitself, explains an otherwise puzzling peculiarity of Roman legalphraseology, the fact that "Obligation" signified rights as well asduties, the right, for example, to have a debt paid as well as theduty of paying it. The Romans kept in fact the entire picture of the"legal chain" before their eyes, and regarded one end of it no moreand no less than the other. In the developed Roman law, the Convention, as soon as it wascompleted, was, in almost all cases, at once crowned with theObligation, and so became a Contract; and this was the result to whichcontract-law was surely tending. But for the purpose of this inquiry, we must attend particularly to the intermediate stage--that in whichsomething more than a perfect agreement was required to attract theObligation. This epoch is synchronous with the period at which thefamous Roman classification of Contracts into four sorts--the Verbal, the Literal, the Real, and the Consensual--had come into use, andduring which these four orders of Contracts constituted the onlydescriptions of engagement which the law would enforce. The meaning ofthe fourfold distribution is readily understood as soon as weapprehend the theory which severed the Obligation from the Convention. Each class of contracts was in fact named from certain formalitieswhich were required over and above the mere agreement of thecontracting parties. In the Verbal Contract, as soon as the Conventionwas effected, a form of words had to be gone through before thevinculum juris was attached to it. In the Literal Contract, an entryin a ledger or table-book had the effect of clothing the Conventionwith the Obligation, and the same result followed, in the case of theReal Contract, from the delivery of the Res or Thing which was thesubject of the preliminary engagement. The contracting parties came, in short, to an understanding in each case; but, if they went nofurther, they were not _obliged_ to one another, and could not compelperformance or ask redress for a breach of faith. But let them complywith certain prescribed formalities, and the Contract was immediatelycomplete, taking its name from the particular form which it had suitedthem to adopt. The exceptions to this practice will be noticedpresently. I have enumerated the four Contracts in their historical order, whichorder, however, the Roman Institutional writers did not invariablyfollow. There can be no doubt that the Verbal Contract was the mostancient of the four, and that it is the eldest known descendant of theprimitive Nexum. Several species of Verbal Contract were anciently inuse, but the most important of all, and the only one treated of by ourauthorities, was effected by means of a _stipulation_, that is, aQuestion and Answer; a question addressed by the person who exactedthe promise, and an answer given by the person who made it. Thisquestion and answer constituted the additional ingredient which, as Ihave just explained, was demanded by the primitive notion over andabove the mere agreement of the persons interested. They formed theagency by which the Obligation was annexed. The old Nexum has nowbequeathed to maturer jurisprudence first of all the conception of achain uniting the contracting parties, and this has become theObligation. It has further transmitted the notion of a ceremonialaccompanying and consecrating the engagement, and this ceremonial hasbeen transmuted into the Stipulation. The conversion of the solemnconveyance, which was the prominent feature of the original Nexum, into a mere question and answer, would be more of a mystery than it isif we had not the analogous history of Roman Testaments to enlightenus. Looking to that history, we can understand how the formalConveyance was first separated from the part of the proceeding whichhad immediate reference to the business in hand, and how afterwards itwas omitted altogether. As then the question and answer of theStipulation were unquestionably the Nexum in a simplified shape, weare prepared to find that they long partook of the nature of atechnical form. It would be a mistake to consider them as exclusivelyrecommending themselves to the older Roman lawyers through theirusefulness in furnishing persons meditating an agreement with anopportunity for consideration and reflection. It is not to be disputedthat they had a value of this kind, which was gradually recognised;but there is proof that their function in respect to Contracts was atfirst formal and ceremonial in the statement of our authorities, thatnot every question and answer was of old sufficient to constitute aStipulation, but only a question and answer couched in technicalphraseology specially appropriated to the particular occasion. But although it is essential for the proper appreciation of thehistory of contract-law that the Stipulation should be understood tohave been looked upon as a solemn form before it was recognised as auseful security, it would be wrong on the other hand to shut our eyesto its real usefulness. The Verbal Contract, though it had lost muchof its ancient importance, survived to the latest period of Romanjurisprudence; and we may take it for granted that no institution ofRoman law had so extended a longevity unless it served some practicaladvantage. I observe in an English writer some expressions of surprisethat the Romans even of the earliest times were content with so meagrea protection against haste and irreflection. But on examining theStipulation closely, and remembering that we have to do with a stateof society in which written evidence was not easily procurable, Ithink we must admit that this Question and Answer, had it beenexpressly devised to answer the purpose which it served, would havebeen justly designated a highly ingenious expedient. It was the_promisee_ who, in the character of stipulator, put all the terms ofthe contract into the form of a question, and the answer was given bythe _promisor_. "Do you promise that you will deliver me such and sucha slave, at such and such a place, on such and such a day?" "I dopromise. " Now, if we reflect for a moment, we shall see that thisobligation to put the promise interrogatively inverts the naturalposition of the parties, and, by effectually breaking the tenor of theconversation, prevents the attention from gliding over a dangerouspledge. With us, a verbal promise is, generally speaking, to begathered exclusively from the words of the promisor. In old Roman law, another step was absolutely required; it was necessary for thepromisee, after the agreement had been made, to sum up all its termsin a solemn interrogation; and it was of this interrogation, ofcourse, and of the assent to it, that proof had to be given at thetrial--_not_ of the promise, which was not in itself binding. Howgreat a difference this seemingly insignificant peculiarity may makein the phraseology of contract-law is speedily realised by thebeginner in Roman jurisprudence, one of whose first stumbling-blocksis almost universally created by it. When we in English have occasion, in mentioning a contract, to connect it for convenience' sake with oneof the parties--for example, if we wished to speak generally of acontractor--it is always the _promisor_ at whom our words arepointing. But the general language of Roman law takes a differentturn; it always regards the contract, if we may so speak, from thepoint 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 isprimarily alluded to. But the serviceableness of the stipulation ismost vividly illustrated by referring to the actual examples in thepages of the Latin comic dramatists. If the entire scenes are readdown in which these passages occur (ex. Gra. Plautus, _Pseudolus_, ActI. Sc. I; Act IV. Sc. 6; _Trinummus_, Act V. Sc. 2), it will beperceived how effectually the attention of the person meditating thepromise must have been arrested by the question, and how ample was theopportunity for withdrawal from an improvident undertaking. In the Literal or Written Contract, the formal act, by which anObligation was superinduced on the Convention, was an entry of the sumdue, where it could be specifically ascertained, on the debit side ofa ledger. The explanation of this Contract turns on a point of Romandomestic manners, the systematic character and exceeding regularity ofbookkeeping in ancient times. There are several minor difficulties ofold Roman law, as, for example, the nature of the Slave's Peculium, which are only cleared up when we recollect that a Roman householdconsisted of a number of persons strictly accountable to its head, andthat every single item of domestic receipt and expenditure, afterbeing entered in waste books, was transferred at stated periods to ageneral household ledger. There are some obscurities, however, in thedescriptions we have received of the Literal Contract, the fact beingthat the habit of keeping books ceased to be universal in later times, and the expression "Literal Contract" came to signify a form ofengagement entirely different from that originally understood. We arenot, therefore, in a position to say, with respect to the primitiveLiteral Contract, whether the obligation was created by a simple entryon the part of the creditor, or whether the consent of the debtor or acorresponding entry in his own books was necessary to give it legaleffect. The essential point is however established that, in the caseof this Contract, all formalities were dispensed with on a conditionbeing complied with. This is another step downwards in the history ofcontract-law. The Contract which stands next in historical succession, the RealContract, shows a great advance in ethical conceptions. Whenever anyagreement had for its object the delivery of a specific thing--andthis is the case with the large majority of simple engagements--theObligation was drawn down as soon as the delivery had actually takenplace. Such a result must have involved a serious innovation on theoldest ideas of Contract; for doubtless, in the primitive times, whena contracting party had neglected to clothe his agreement in astipulation, nothing done in pursuance of the agreement would berecognised by the law. A person who had paid over money on loan wouldbe unable to sue for its repayment unless he had formally _stipulated_for it. But, in the Real Contract, performance on one side is allowedto impose a legal duty on the other--evidently on ethical grounds. Forthe first time then moral considerations appear as an ingredient inContract-law, and the Real Contract differs from its two predecessorsin being founded on these, rather than on respect for technical formsor on deference to Roman domestic habits. We now reach the fourth class, or Consensual Contracts, the mostinteresting and important of all. Four specified Contracts weredistinguished by this name: Mandatum, _i. E. _ Commission or Agency;Societas or Partnership; Emtio Venditio or Sale; and Locatio Conductioor Letting and Hiring. A few pages ago, after stating that a Contractconsisted of a Pact or Convention to which an Obligation had beensuperadded, I spoke of certain acts or formalities by which the lawpermitted the Obligation to be attracted to the Pact. I used thislanguage on account of the advantage of a general expression, but itis not strictly correct unless it be understood to include thenegative as well as the positive. For, in truth, the peculiarity ofthese Consensual Contracts is that _no_ formalities, are required tocreate them out of the Pact. Much that is indefensible, and much morethat is obscure, has been written about the Consensual Contracts, andit has even been asserted that in them the _consent_ of the Parties ismore emphatically given than in any other species of agreement. Butthe term Consensual merely indicates that the Obligation is hereannexed at once to the _Consensus_. The Consensus, or mutual assent ofthe parties, is the final and crowning ingredient in the Convention, and it is the special characteristic of agreements falling under oneof the four heads of Sale, Partnership, Agency, and Hiring, that, assoon as the assent of the parties has supplied this ingredient, thereis _at once_ a Contract. The Consensus draws with it the Obligation, performing, in transactions of the sort specified, the exact functionswhich are discharged, in the other contracts, by the _Res_ or Thing, by the _Verba_ stipulationis, and by the _Literæ_ or written entry ina ledger. Consensual is therefore a term which does not involve theslightest anomaly, but is exactly analogous to Real, Verbal, andLiteral. In the intercourse of life the commonest and most important of all thecontracts are unquestionably the four styled Consensual. The largerpart of the collective existence of every community is consumed intransactions of buying and selling, of letting and hiring, ofalliances between men for purposes of business, of delegation ofbusiness from one man to another; and this is no doubt theconsideration which led the Romans, as it has led most societies, torelieve these transactions from technical incumbrance, to abstain asmuch as possible from clogging the most efficient springs of socialmovement. Such motives were not of course confined to Rome, and thecommerce of the Romans with their neighbours must have given themabundant opportunities for observing that the contracts before ustended everywhere to become _Consensual_, obligatory on the meresignification of mutual assent. Hence, following their usual practice, they distinguished these contracts as contracts _Juris Gentium_. Yet Ido not think that they were so named at a very early period. The firstnotions of a Jus Gentium may have been deposited in the minds of theRoman lawyers long before the appointment of a Prætor Peregrinus, butit would only be through extensive and regular trade that they wouldbe familiarised with the contractual system of other Italiancommunities, and such a trade would scarcely attain considerableproportions before Italy had been thoroughly pacified, and thesupremacy of Rome conclusively assured. Although, however, there isstrong probability that the Consensual Contracts were the latest-borninto the Roman system, and though it is likely that the qualification, _Juris Gentium_, stamps the recency of their origin, yet this veryexpression, which attributes them to the "Law of Nations, " has inmodern times produced the notion of their extreme antiquity. For, when the "Law of Nations" had been converted into the "Law of Nature, "it seemed to be implied that the Consensual Contracts were the type ofthe agreements most congenial to the natural state; and hence arosethe singular belief that the younger the civilisation, the simplermust be its forms of contract. The Consensual Contracts, it will be observed, were extremely limitedin number. But it cannot be doubted that they constituted the stage inthe history of Contract-law from which all modern conceptions ofcontract took their start. The motion of the will which constitutesagreement was now completely insulated, and became the subject ofseparate contemplation; forms were entirely eliminated from the notionof contract, and external acts were only regarded as symbols of theinternal act of volition. The Consensual Contracts had, moreover, beenclassed in the Jus Gentium, and it was not long before thisclassification drew with it the inference that they were the speciesof agreement which represented the engagements approved of by Natureand included in her code. This point once reached, we are prepared forseveral celebrated doctrines and distinctions of the Roman lawyers. One of them is the distinction between Natural and Civil Obligations. When a person of full intellectual maturity had deliberately boundhimself by an engagement, he was said to be under a _naturalobligation_, even though he had omitted some necessary formality, andeven though through some technical impediment he was devoid of theformal capacity for making a valid contract. The law (and this is whatthe distinction implies) would not enforce the obligation, but it didnot absolutely refuse to recognise it; and _natural obligations_differed in many respects from obligations which were merely null andvoid, more particularly in the circumstance that they could be civillyconfirmed, if the capacity for contract were subsequently acquired. Another very peculiar doctrine of the jurisconsults could not have hadits origin earlier than the period at which the Convention was severedfrom the technical ingredients of Contract. They taught that thoughnothing but a Contract could be the foundation of an _action_, a merePact or Convention could be the basis of a _plea_. It followed fromthis, that though nobody could sue upon an agreement which he had nottaken the precaution to mature into a Contract by complying with theproper forms, nevertheless a claim arising out of a valid contractcould be rebutted by proving a counter-agreement which had never gotbeyond the state of a simple convention. An action for the recovery ofa debt could be met by showing a mere informal agreement to waive orpostpone the payment. The doctrine just stated indicates the hesitation of the Prætors inmaking their advances towards the greatest of their innovations. Theirtheory of Natural law must have led them to look with especial favouron the Consensual Contracts and on those Pacts or Conventions of whichthe Consensual Contracts were only particular instances; but they didnot at once venture on extending to all Conventions the liberty of theConsensual Contracts. They took advantage of that specialsuperintendence over procedure which had been confided to them sincethe first beginnings of Roman law, and, while they still declined topermit a suit to be launched which was not based on a formal contract, they gave full play to their new theory of agreement in directing theulterior stages of the proceeding. But, when they had proceeded thusfar, it was inevitable that they should proceed farther. Therevolution of the ancient law of Contract was consummated when thePrætor of some one year announced in his Edict that he would grantequitable actions upon Pacts which had never been matured at all intoContracts, provided only that the Pacts in question had been foundedon a consideration (_causa_). Pacts of this sort are always enforcedunder the advanced Roman jurisprudence. The principle is merely theprinciple of the Consensual Contract carried to its properconsequence; and, in fact, if the technical language of the Romans hadbeen as plastic as their legal theories, these Pacts enforced by thePrætor would have been styled new Contracts, new Consensual Contracts. Legal phraseology is, however, the part of the law which is the lastto alter, and the Pacts equitably enforced continued to be designatedsimply Prætorian Pacts. It will be remarked that unless there wereconsideration for the Pact, it would continue _nude_ so far as the newjurisprudence was concerned; in order to give it effect, it would benecessary to convert it by a stipulation into a Verbal Contract. The extreme importance of this history of Contract, as a safeguardagainst almost innumerable delusions, must be my justification fordiscussing it at so considerable a length. It gives a complete accountof the march of ideas from one great landmark of jurisprudence toanother. We begin with Nexum, in which a Contract and a Conveyance areblended, and in which the formalities which accompany the agreementare even more important than the agreement itself. From the Nexum wepass to the Stipulation, which is a simplified form of the olderceremonial. The Literal Contract comes next, and here all formalitiesare waived, if proof of the agreement can be supplied from the rigidobservances of a Roman household. In the Real Contract a moral duty isfor the first time recognised, and persons who have joined oracquiesced in the partial performance of an engagement are forbiddento repudiate it on account of defects in form. Lastly, the ConsensualContracts emerge, in which the mental attitude of the contractors issolely regarded, and external circumstances have no title to noticeexcept as evidence of the inward undertaking. It is of courseuncertain how far this progress of Roman ideas from a gross to arefined conception exemplifies the necessary progress of human thoughton the subject of Contract. The Contract-law of all other ancientsocieties but the Roman is either too scanty to furnish information, or else is entirely lost; and modern jurisprudence is so thoroughlyleavened with the Roman notions that it furnishes us with no contrastsor parallels from which instruction can be gleaned. From the absence, however, of everything violent, marvellous, or unintelligible in thechanges I have described, it may be reasonably believed that thehistory of ancient Roman Contracts is, up to a certain point, typicalof the history of this class of legal conceptions in other ancientsocieties. But it is only up to a certain point that the progress ofRoman law can be taken to represent the progress of other systems ofjurisprudence. The theory of Natural law is exclusively Roman. Thenotion of the _vinculum juris_, so far as my knowledge extends, isexclusively Roman. The many peculiarities of the mature Roman law ofContract and Delict which are traceable to these two ideas, whethersingly or in combination, are therefore among the exclusive productsof one particular society. These later legal conceptions areimportant, not because they typify the necessary results of advancingthought under all conditions, but because they have exercisedperfectly enormous influence on the intellectual diathesis of themodern world. I know nothing more wonderful than the variety of sciences to whichRoman law, Roman Contract-law more particularly, has contributed modesof thought, courses of reasoning, and a technical language. Of thesubjects which have whetted the intellectual appetite of the moderns, there is scarcely one, except Physics, which has not been filteredthrough Roman jurisprudence. The science of pure Metaphysics had, indeed, rather a Greek than a Roman parentage, but Politics, MoralPhilosophy, and even Theology, found in Roman law not only a vehicleof expression, but a nidus in which some of their profoundestinquiries were nourished into maturity. For the purpose of accountingfor this phenomenon, it is not absolutely necessary to discuss themysterious relation between words and ideas, or to explain how it isthat the human mind has never grappled with any subject of thought, unless it has been provided beforehand with a proper store of languageand with an apparatus of appropriate logical methods. It is enough toremark, that, when the philosophical interests of the Eastern andWestern worlds were separated, the founders of Western thoughtbelonged to a society which spoke Latin and reflected in Latin. But inthe Western provinces the only language which retained sufficientprecision for philosophical purposes was the language of Roman law, which by a singular fortune had preserved nearly all the purity of theAugustan age, while vernacular Latin was degenerating into a dialectof portentous barbarism. And if Roman jurisprudence supplied the onlymeans of exactness in speech, still more emphatically did it furnishthe only means of exactness, subtlety, or depth in thought. For atleast three centuries, philosophy and science were without a home inthe West; and though metaphysics and metaphysical theology wereengrossing the mental energies of multitudes of Roman subjects, thephraseology 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 importantthat every man's assent to them, or dissent from them, had to berecorded, and then the West was introduced to the results of Easterncontroversy, which it generally acquiesced in without interest andwithout resistance. Meanwhile, one department of inquiry, difficultenough for the most laborious, deep enough for the most subtle, delicate enough for the most refined, had never lost its attractionsfor the educated classes of the Western provinces. To the cultivatedcitizen of Africa, of Spain, of Gaul and of Northern Italy, it wasjurisprudence, and jurisprudence only, which stood in the place ofpoetry and history, of philosophy and science. So far then from therebeing anything mysterious in the palpably legal complexion of theearliest efforts of Western thought it would rather be astonishing ifit had assumed any other hue. I can only express my surprise at thescantiness of the attention which has been given to the differencebetween Western ideas and Eastern, between Western theology andEastern, caused by the presence of a new ingredient. It is preciselybecause the influence of jurisprudence begins to be powerful that thefoundation of Constantinople and the subsequent separation of theWestern Empire from the Eastern, are epochs in philosophical history. But continental thinkers are doubtless less capable of appreciatingthe importance of this crisis by the very intimacy with which notionsderived from Roman Law are mingled up with every-day ideas. Englishmen, on the other hand, are blind to it through the monstrousignorance to which they condemn themselves of the most plentifulsource of the stream of modern knowledge, of the one intellectualresult of the Roman civilisation. At the same time, an Englishman, whowill be at the pains to familiarise himself with the classical Romanlaw, is perhaps, from the very slightness of the interest which hiscountrymen have hitherto taken in the subject, a better judge than aFrenchman or a German of the value of the assertions I have venturedto make. Anybody who knows what Roman jurisprudence is, as actuallypractised by the Romans, and who will observe in what characteristicsthe earliest Western theology and philosophy differ from the phases ofthought which preceded them, may be safely left to pronounce what wasthe new element which had begun to pervade and govern speculation. The part of Roman law which has had most extensive influence onforeign subjects of inquiry has been the law of Obligation, or whatcomes nearly to the same thing, of Contract and Delict. The Romansthemselves were not unaware of the offices which the copious andmalleable terminology belonging to this part of their system might bemade to discharge, and this is proved by their employment of thepeculiar adjunct _quasi_ in such expressions as Quasi-Contract andQuasi-Delict. "Quasi, " so used, is exclusively a term ofclassification. It has been usual with English critics to identify theQuasi-contracts with _implied_ contracts, but this is an error, forimplied contracts are true contracts, which quasi-contracts are not. In implied contracts, acts and circumstances are the symbols of thesame ingredients which are symbolised, in express contracts, by words;and whether a man employs one set of symbols or the other must be amatter of indifference so far as concerns the theory of agreement. Buta Quasi-Contract is not a contract at all. The commonest sample of theclass is the relation subsisting between two persons one of whom haspaid money to the other through mistake. The law, consulting theinterests of morality, imposes an obligation on the receiver torefund, but the very nature of the transaction indicates that it isnot a contract, inasmuch as the Convention, the most essentialingredient of Contract, is wanting. This word "quasi, " prefixed to aterm of Roman law, implies that the conception to which it serves asan index is connected with the conception with which the comparison isinstituted by a strong superficial analogy or resemblance. It does notdenote that the two conceptions are the same or that they belong tothe same genus. On the contrary, it negatives the notion of anidentity between them; but it points out that they are sufficientlysimilar for one to be classed as the sequel to the other, and that thephraseology taken from one department of law may be transferred to theother and employed without violent straining in the statement of ruleswhich would otherwise be imperfectly expressed. It has been shrewdly remarked, that the confusion between ImpliedContracts, which are true contracts, and Quasi Contracts, which arenot contracts at all, has much in common with the famous error whichattributed political rights and duties to an Original Compact betweenthe governed and the governor. Long before this theory had clotheditself in definite shape, the phraseology of Roman contract-law hadbeen largely drawn upon to describe that reciprocity of rights andduties which men had always conceived as existing between sovereignsand subjects. While the world was full of maxims setting forth withthe utmost positiveness the claims of kings to implicitobedience--maxims which pretended to have had their origin in the NewTestament, but which were really derived from indelible recollectionsof the Cæsarian despotism--the consciousness of correlative rightspossessed by the governed would have been entirely without the meansof expression if the Roman law of Obligation had not supplied alanguage capable of shadowing forth an idea which was as yetimperfectly developed. The antagonism between the privileges of kingsand their duties to their subjects was never, I believe, lost sight ofsince Western history began, but it had interest for few exceptspeculative writers so long as feudalism continued in vigour, forfeudalism effectually controlled by express customs the exorbitanttheoretical pretensions of most European sovereigns. It is notorious, however, that as soon as the decay of the Feudal System had thrown themediæval constitutions out of working order, and when the Reformationhad discredited the authority of the Pope, the doctrine of the divineright of Kings rose immediately into an importance which had neverbefore attended it. The vogue which it obtained entailed still moreconstant resort to the phraseology of Roman law, and a controversywhich had originally worn a theological aspect assumed more and morethe air of a legal disputation. A phenomenon then appeared which hasrepeatedly shown itself in the history of opinion. Just when theargument for monarchical authority rounded itself into the definitedoctrine of Filmer, the phraseology, borrowed from the Law ofContract, which had been used in defence of the rights of subjects, crystallised into the theory of an actual original compact betweenking and people, a theory which, first in English and afterwards, andmore particularly, in French hands, expanded into a comprehensiveexplanation of all the phenomena of society and law. But the only realconnection between political and legal science had consisted in thelast giving to the first the benefit of its peculiarly plasticterminology. The Roman jurisprudence of Contract had performed for therelation of sovereign and subject precisely the same service which, ina humbler sphere, it rendered to the relation of persons boundtogether by an obligation of "quasi-contract. " It had furnished a bodyof words and phrases which approximated with sufficient accuracy tothe ideas which then were from time to time forming on the subject ofpolitical obligation. The doctrine of an Original Compact can never beput higher than it is placed by Dr. Whewell, when he suggests that, though unsound, "it may be a _convenient_ form for the expression ofmoral truths. " The extensive employment of legal language on political subjectspreviously to the invention of the Original Compact, and the powerfulinfluence which that assumption has exercised subsequently, amplyaccount for the plentifulness in political science of words andconceptions, which were the exclusive creation of Roman jurisprudence. Of their plentifulness in Moral Philosophy a rather differentexplanation must be given, inasmuch as ethical writings have laidRoman law under contribution much more directly than politicalspeculations, and their authors have been much more conscious of theextent of their obligation. In speaking of moral philosophy asextraordinarily indebted to Roman jurisprudence, I must be understoodto intend moral philosophy as understood previously to the break inits history effected by Kant, that is, as the science of the rulesgoverning human conduct, of their proper interpretation and of thelimitations to which they are subject. Since the rise of the CriticalPhilosophy, moral science has almost wholly lost its older meaning, and, except where it is preserved under a debased form in thecasuistry still cultivated by Roman Catholic theologians, it seems tobe regarded nearly universally as a branch of ontological inquiry. Ido not know that there is a single contemporary English writer, withthe exception of Dr. Whewell, who understands moral philosophy as itwas understood before it was absorbed by metaphysics and before thegroundwork of its rules came to be a more important consideration thanthe rules themselves. So long, however, as ethical science had to dowith the practical regimen of conduct, it was more or less saturatedwith Roman law. Like all the great subjects of modern thought, it wasoriginally incorporated with theology. The science of Moral Theology, as it was at first called, and as it is still designated by the RomanCatholic divines, was undoubtedly constructed, to the full knowledgeof its authors, by taking principles of conduct from the system of theChurch, and by using the language and methods of jurisprudence fortheir expression and expansion. While this process went on, it wasinevitable that jurisprudence, though merely intended to be thevehicle of thought, should communicate its colour to the thoughtitself. The tinge received through contact with legal conceptions isperfectly perceptible in the earliest ethical literature of the modernworld, and it is evident, I think, that the Law of Contract, based asit is on the complete reciprocity and indissoluble connection ofrights and duties, has acted as a wholesome corrective to thepredispositions of writers who, if left to themselves, might haveexclusively viewed a moral obligation as the public duty of a citizenin the Civitas Dei. But the amount of Roman Law in moral theologybecomes sensibly smaller at the time of its cultivation by the greatSpanish moralists. Moral theology, developed by the juridical methodof doctor commenting on doctor, provided itself with a phraseology ofits own, and Aristotelian peculiarities of reasoning and expression, imbibed doubtless in great part from the Disputations on Morals in theacademical schools, take the place of that special turn of thought andspeech which can never be mistaken by any person conversant with theRoman law. If the credit of the Spanish school of moral theologianshad continued, the juridical ingredient in ethical science would havebeen insignificant, but the use made of their conclusions by the nextgeneration of Roman Catholic writers on these subjects almost entirelydestroyed their influence. Moral Theology, degraded into Casuistry, lost all interest for the leaders of European speculation; and the newscience of Moral Philosophy, which was entirely in the hands of theProtestants, swerved greatly aside from the path which the moraltheologians had followed. The effect was vastly to increase theinfluence of Roman law on ethical inquiry. Shortly[5] after the Reformation, we find two great schools ofthought dividing this class of subjects between them. The mostinfluential of the two was at first the sect of school known to us asthe Casuists, all of them in spiritual communion with the RomanCatholic Church, and nearly all of them affiliated to one or other ofher religious orders. On the other side were a body of writersconnected with each other by a common intellectual descent from thegreat author of the treatise _De Jure Belli et Pacis_, Hugo Grotius. Almost all of the latter were adherents of the Reformation, andthough it cannot be said that they were formally and avowedly atconflict with the Casuists, the origin and object of their system werenevertheless essentially different from those of Casuistry. It isnecessary to call attention to this difference, because it involvesthe question of the influence of Roman law on that department ofthought with which both systems are concerned. The book of Grotius, though it touches questions of pure Ethics in every page, and thoughit is the parent immediate or remote of innumerable volumes of formalmorality, is not, as is well known, a professed treatise on MoralPhilosophy; it is an attempt to determine the Law of Nature, orNatural Law. Now, without entering upon the question, whether theconception of a Law Natural be not exclusively a creation of the Romanjurisconsults, we may lay down that, even on the admission of Grotiushimself, the dicta of the Roman jurisprudence as to what parts ofknown positive law must be taken to be parts of the Law of Nature, are, if not infallible, to be received at all events with theprofoundest respect. Hence the system of Grotius is implicated withRoman law at its very foundation, and this connection renderedinevitable--what the legal training of the writer would perhaps haveentailed without it--the free employment in every paragraph oftechnical phraseology, and of modes of reasoning, defining, andillustrating, which must sometimes conceal the sense, and almostalways the force and cogency, of the argument from the reader who isunfamiliar with the sources whence they have been derived. On theother hand, Casuistry borrows little from Roman law, and the views ofmorality contended for have nothing whatever in common with theundertaking of Grotius. All that philosophy of right and wrong whichhas become famous, or infamous, under the name of Casuistry, had itsorigin in the distinction between Mortal and Venial Sin. A naturalanxiety to escape the awful consequences of determining a particularact to be mortally sinful, and a desire, equally intelligible, toassist the Roman Catholic Church in its conflict with Protestantism bydisburthening it of an inconvenient theory, were the motives whichimpelled the authors of the Casuistical philosophy to the invention ofan 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 ismatter of ordinary history. We know that the distinctions ofCasuistry, by enabling the priesthood to adjust spiritual control toall the varieties of human character, did really confer on it aninfluence with princes, statesmen, and generals, unheard of in theages before the Reformation, and did really contribute largely to thatgreat reaction which checked and narrowed the first successes ofProtestantism. But beginning in the attempt, not to establish, but toevade--not to discover a principle, but to escape a postulate--not tosettle the nature of right and wrong, but to determine what was notwrong of a particular nature, --Casuistry went on with its dexterousrefinements till it ended in so attenuating the moral features ofactions, and so belying the moral instincts of our being, that atlength the conscience of mankind rose suddenly in revolt against it, and consigned to one common ruin the system and its doctors. The blow, long pending, was finally struck in the _Provincial Letters_ ofPascal, and since the appearance of those memorable Papers, nomoralist of the smallest influence or credit has ever avowedlyconducted his speculations in the footsteps of the Casuists. The wholefield of ethical science was thus left at the exclusive command of thewriters who followed Grotius; and it still exhibits in anextraordinary degree the traces of that entanglement with Roman lawwhich is sometimes imputed as a fault, and sometimes the highest ofits recommendations, to the Grotian theory. Many inquirers sinceGrotius's day have modified his principles, and many, of course, sincethe rise of the Critical Philosophy, have quite deserted them; buteven those who have departed most widely from his fundamentalassumptions have inherited much of his method of statement, of histrain of thought, and of his mode of illustration; and these havelittle 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 byRoman law as Metaphysics. The reason is that discussion onmetaphysical subjects has always been conducted in Greek, first inpure Greek, and afterwards in a dialect of Latin expressly constructedto give expression to Greek conceptions. The modern languages haveonly been fitted to metaphysical inquiries by adopting this Latindialect, or by imitating the process which was originally followed inits formation. The source of the phraseology which has been alwaysemployed for metaphysical discussion in modern times was the Latintranslations of Aristotle, in which, whether derived or not fromArabic versions, the plan of the translator was not to seek foranalogous expressions in any part of Latin literature, but toconstruct anew from Latin roots a set of phrases equal to theexpression of Greek philosophical ideas. Over such a process theterminology of Roman law can have exercised little influence; at most, a few Latin law terms in a transmuted shape have made their way intometaphysical language. At the same time it is worthy of remark thatwhenever the problems of metaphysics are those which have been moststrongly agitated in Western Europe, the thought, if not the language, betrays a legal parentage. Few things in the history of speculationare more impressive than the fact that no Greek-speaking people hasever felt itself seriously perplexed by the great question ofFree-will and Necessity. I do not pretend to offer any summaryexplanation of this, but it does not seem an irrelevant suggestionthat neither the Greeks, nor any society speaking and thinking intheir language, ever showed the smallest capacity for producing aphilosophy of law. Legal science is a Roman creation, and the problemof Free-will arises when we contemplate a metaphysical conceptionunder a legal aspect. How came it to be a question whether invariablesequence was identical with necessary connection? I can only say thatthe tendency of Roman law, which became stronger as it advanced, wasto look upon legal consequences as united to legal causes by aninexorable necessity, a tendency most markedly exemplified in thedefinition of Obligation which I have repeatedly cited, "Jurisvinculum quo necessitate adstringimur alicujus solvendæ rei. " But the problem of Free-will was theological before it becamephilosophical, and, if its terms have been affected by jurisprudence, it will be because Jurisprudence had made itself felt in Theology. Thegreat point of inquiry which is here suggested has never beensatisfactorily elucidated. What has to be determined, is whetherjurisprudence has ever served as the medium through which theologicalprinciples have been viewed; whether, by supplying a peculiarlanguage, a peculiar mode of reasoning, and a peculiar solution ofmany of the problems of life, it has ever opened new channels inwhich theological speculation could flow out and expand itself. Forthe purpose of giving an answer it is necessary to recollect what isalready agreed upon by the best writers as to the intellectual foodwhich theology first assimilated. It is conceded on all sides that theearliest language of the Christian Church was Greek, and that theproblems to which it first addressed itself were those for which Greekphilosophy in its later forms had prepared the way. Greek metaphysicalliterature contained the sole stock of words and ideas out of whichthe human mind could provide itself with the means of engaging in theprofound controversies as to the Divine Persons, the Divine Substance, and the Divine Natures. The Latin language and the meagre Latinphilosophy were quite unequal to the undertaking, and accordingly theWestern or Latin-speaking provinces of the Empire adopted theconclusions of the East without disputing or reviewing them. "LatinChristianity, " says Dean Milman, "accepted the creed which its narrowand barren vocabulary could hardly express in adequate terms. Yet, throughout, the adhesion of Rome and the West was a passiveacquiescence in the dogmatic system which had been wrought out by theprofounder theology of the Eastern divines, rather than a vigorous andoriginal examination on her part of those mysteries. The Latin Churchwas the scholar as well as the loyal partizan of Athanasius. " But whenthe separation of East and West became wider, and the Latin-speakingWestern Empire began to live with an intellectual life of its own, itsdeference to the East was all at once exchanged for the agitation of anumber of questions entirely foreign to Eastern speculation. "WhileGreek theology (Milman, _Latin Christianity_, Preface, 5) went ondefining with still more exquisite subtlety the Godhead and the natureof Christ"--"while the interminable controversy still lengthened outand cast forth sect after sect from the enfeebled community"--theWestern Church threw itself with passionate ardour into a new order ofdisputes, the same which from those days to this have never lost theirinterest for any family of mankind at any time included in the Latincommunion. The nature of Sin and its transmission by inheritance--thedebt owed by man and its vicarious satisfaction--the necessity andsufficiency of the Atonement--above all the apparent antagonismbetween Free-will and the Divine Providence--these were the pointswhich the West began to debate as ardently as ever the East haddiscussed the articles of its more special creed. Why is it then thaton the two sides of the line which divides the Greek-speaking from theLatin-speaking provinces there lie two classes of theological problemsso strikingly different from one another? The historians of the Churchhave come close upon the solution when they remark that the newproblems were more "practical, " less absolutely speculative, thanthose which had torn Eastern Christianity asunder, but none of them, so far as I am aware, has quite reached it. I affirm withouthesitation that the difference between the two theological systems isaccounted for by the fact that, in passing from the East to the West, theological speculation had passed from a climate of Greek metaphysicsto a climate of Roman law. For some centuries before thesecontroversies rose into overwhelming importance, all the intellectualactivity of the Western Romans had been expended on jurisprudenceexclusively. They had been occupied in applying a peculiar set ofprinciples to all the combinations in which the circumstances of lifeare capable of being arranged. No foreign pursuit or taste called offtheir attention from this engrossing occupation, and for carrying iton they possessed a vocabulary as accurate as it was copious, a strictmethod of reasoning, a stock of general propositions on conduct moreor less verified by experience, and a rigid moral philosophy. It wasimpossible that they should not select from the questions indicated bythe Christian records those which had some affinity with the order ofspeculations to which they were accustomed, and that their manner ofdealing with them should borrow something from their forensic habits. Almost everybody who has knowledge enough of Roman law to appreciatethe Roman penal system, the Roman theory of the obligationsestablished by Contract or Delict, the Roman view of Debts and of themodes of incurring, extinguishing, and transmitting them, the Romannotion of the continuance of individual existence by UniversalSuccession, may be trusted to say whence arose the frame of mind towhich the problems of Western theology proved so congenial, whencecame the phraseology in which these problems were stated, and whencethe description of reasoning employed in their solution. It must onlybe recollected that Roman law which had worked itself into Westernthought was neither the archaic system of the ancient city, nor thepruned and curtailed jurisprudence of the Byzantine Emperors; stillless, of course, was it the mass of rules, nearly buried in aparasitical overgrowth of modern speculative doctrine, which passes bythe name of Modern Civil Law. I speak only of that philosophy ofjurisprudence, wrought out by the great juridical thinkers of theAntonine age, which may still be partially reproduced from thePandects of Justinian, a system to which few faults can be attributedexcept it perhaps aimed at a higher degree of elegance, certainty, andprecision, than human affairs will permit to the limits within whichhuman laws seek to confine them. It is a singular result of that ignorance of Roman law whichEnglishmen readily confess, and of which they are sometimes notashamed to boast, that many English writers of note and credit havebeen led by it to put forward the most untenable of paradoxesconcerning the condition of human intellect during the Roman Empire. It has been constantly asserted, as unhesitatingly as if there were notemerity in advancing the proposition, that from the close of theAugustan era to the general awakening of interest on the points of theChristian faith, the mental energies of the civilised world weresmitten with a paralysis. Now there are two subjects of thought--theonly two perhaps with the exception of physical science--which areable to give employment to all the powers and capacities which themind possesses. One of them is Metaphysical inquiry, which knows nolimits so long as the mind is satisfied to work on itself; the otheris Law, which is as extensive as the concerns of mankind. It happensthat, during the very period indicated, the Greek-speaking provinceswere devoted to one, the Latin-speaking provinces to the other, ofthese studies. I say nothing of the fruits of speculation inAlexandria and the East, but I confidently affirm that Rome and theWest had an occupation in hand fully capable of compensating them forthe absence of every other mental exercise, and I add that the resultsachieved, so far as we know them, were not unworthy of the continuousand exclusive labour bestowed on producing them. Nobody except aprofessional lawyer is perhaps in a position completely to understandhow much of the intellectual strength of individuals Law is capable ofabsorbing, but a layman has no difficulty in comprehending why it wasthat an unusual share of the collective intellect of Rome wasengrossed by jurisprudence. "The proficiency[6] of a given communityin jurisprudence depends in the long run on the same conditions as itsprogress in any other line of inquiry; and the chief of these are theproportion of the national intellect devoted to it, and the length oftime during which it is so devoted. Now, a combination of all thecauses, direct and indirect, which contribute to the advancing andperfecting of a science continued to operate on the jurisprudence ofRome through the entire space between the Twelve Tables and theseverance of the two Empires, --and that not irregularly or atintervals, but in steadily increasing force and constantly augmentingnumber. We should reflect that the earliest intellectual exercise towhich a young nation devotes itself is the study of its laws. As soonas the mind makes its first conscious efforts towards generalisation, the concerns of every-day life are the first to press for inclusionwithin general rules and comprehensive formulas. The popularity of thepursuit on which all the energies of the young commonwealth are bentis at the outset unbounded; but it ceases in time. The monopoly ofmind by law is broken down. The crowd at the morning audience of thegreat Roman jurisconsult lessens. The students are counted by hundredsinstead of thousands in the English Inns of Court. Art, Literature, Science, and Politics, claim their share of the national intellect;and the practice of jurisprudence is confined within the circle of aprofession, never indeed limited or insignificant, but attracted asmuch by the rewards as by the intrinsic recommendations of theirscience. This succession of changes exhibited itself even morestrikingly at Rome than in England. To the close of the Republic thelaw was the sole field for all ability except the special talent of acapacity for generalship. But a new stage of intellectual progressbegan with the Augustan age, as it did with our own Elizabethan era. We all know what were its achievements in poetry and prose; but thereare some indications, it should be remarked, that, besides itsefflorescence in ornamental literature, it was on the eve of throwingout new aptitudes for conquest in physical science. Here, however, isthe point at which the history of mind in the Roman State ceases tobe parallel to the routes which mental progress had since thenpursued. The brief span of Roman literature, strictly so called, wassuddenly closed under a variety of influences, which though they maypartially be traced it would be improper in this place to analyse. Ancient intellect was forcibly thrust back into its old courses, andlaw again became no less exclusively the proper sphere for talent thanit had been in the days when the Romans despised philosophy and poetryas the toys of a childish race. Of what nature were the externalinducements which, during the Imperial period, tended to draw a man ofinherent capacity to the pursuits of the jurisconsult may best beunderstood by considering the option which was practically before himin his choice of a profession. He might become a teacher of rhetoric, a commander of frontier-posts, or a professional writer of panegyrics. The only other walk of active life which was open to him was thepractice of the law. Through _that_ lay the approach to wealth, tofame, to office, to the council-chamber of the monarch--it may be tothe very throne itself. " The premium on the study of jurisprudence was so enormous that therewere schools of law in every part of the Empire, even in the verydomain of Metaphysics. But, though the transfer of the seat of empireto Byzantium gave a perceptible impetus to its cultivation in theEast, jurisprudence never dethroned the pursuits which there competedwith it. Its language was Latin, an exotic dialect in the Eastern halfof the Empire. It is only of the West that we can lay down that lawwas not only the mental food of the ambitious and aspiring, but thesole aliment of all intellectual activity. Greek philosophy had neverbeen more than a transient fashionable taste with the educated classof Rome itself, and when the new Eastern capital had been created, andthe Empire subsequently divided into two, the divorce of the Westernprovinces from Greek speculation, and their exclusive devotion tojurisprudence, became more decided than ever. As soon then as theyceased to sit at the feet of the Greeks and began to ponder out atheology of their own, the theology proved to be permeated withforensic ideas and couched in a forensic phraseology. It is certainthat this substratum of law in Western theology lies exceedingly deep. A new set of Greek theories, the Aristotelian philosophy, madetheir way afterwards into the West and almost entirely buried itsindigenous doctrines. But when at the Reformation it partially shookitself free from their influence, it instantly supplied their placewith Law. It is difficult to say whether the religious system ofCalvin or the religious system of the Arminians has the more markedlylegal character. The vast influence of the specific jurisprudence of Contract producedby the Romans upon the corresponding department of modern Law belongsrather to the history of mature jurisprudence than to a treatise likethe present. It did not make itself felt till the school of Bolognafounded the legal science of modern Europe. But the fact that theRomans, before their Empire fell, had so fully developed theconception of Contract becomes of importance at a much earlier periodthan this. Feudalism, I have repeatedly asserted, was a compound ofarchaic barbarian usage with Roman law; no other explanation of it istenable, or even intelligible. The earliest social forms of the feudalperiod differ in little from the ordinary associations in which themen of primitive civilisations are everywhere seen united. A Fief wasan organically complete brotherhood of associates whose proprietaryand personal rights were inextricably blended together. It had much incommon with an Indian Village Community and much in common with aHighland clan. But still it presents some phenomena which we neverfind in the associations which are spontaneously formed by beginnersin civilisation. True archaic communities are held together not byexpress rules, but by sentiment, or, we should perhaps say, byinstinct; and new comers into the brotherhood are brought within therange of this instinct by falsely pretending to share in theblood-relationship from which it naturally springs. But the earliestfeudal communities were neither bound together by mere sentiment norrecruited by a fiction. The tie which united them was Contract, andthey obtained new associates by contracting with them. The relation ofthe lord to the vassals had originally been settled by expressengagement, and a person wishing to engraft himself on the brotherhoodby _commendation_ or _infeudation_ came to a distinct understanding asto the conditions on which he was to be admitted. It is therefore thesphere occupied in them by Contract which principally distinguishesthe feudal institutions from the unadulterated usages of primitiveraces. The lord had many of the characteristics of a patriarchalchieftain, but his prerogative was limited by a variety of settledcustoms traceable to the express conditions which had been agreed uponwhen the infeudation took place. Hence flow the chief differenceswhich forbid us to class the feudal societies with true archaiccommunities. They were much more durable and much more various; moredurable, because express rules are less destructible than instinctivehabits, and more various, because the contracts on which they werefounded were adjusted to the minutest circumstances and wishes of thepersons who surrendered or granted away their lands. This lastconsideration may serve to indicate how greatly the vulgar opinionscurrent among us as to the origin of modern society stand in need ofrevision. It is often said that the irregular and various contour ofmodern civilisation is due to the exuberant and erratic genius of theGermanic races, and it is often contrasted with the dull routine ofthe Roman Empire. The truth is that the Empire bequeathed to modernsociety the legal conception to which all this irregularity isattributable; if the customs and institutions of barbarians have onecharacteristic more striking than another, it is their extremeuniformity. [5] The passage quoted is transcribed with slight alterations from a paper contributed by the author to the _Cambridge Essays_ for 1856. [6] _Cambridge Essays_, 1856. CHAPTER X THE EARLY HISTORY OF DELICT AND CRIME The Teutonic Codes, including those of our Anglo-Saxon ancestors, arethe only bodies of archaic secular law which have come down to us insuch a state that we can form an exact notion of their originaldimensions. Although the extant fragments of Roman and Hellenic codessuffice to prove to us their general character, there does not remainenough of them for us to be quite sure of their precise magnitude orof the proportion of their parts to each other. But still on the wholeall the known collections of ancient law are characterised by afeature which broadly distinguishes them from systems of maturejurisprudence. The proportion of criminal to civil law is exceedinglydifferent. In the German codes, the civil part of the law has triflingdimensions as compared with the criminal. The traditions which speakof the sanguinary penalties inflicted by the code of Draco seem toindicate that it had the same characteristic. In the Twelve Tablesalone, produced by a society of greater legal genius and at first ofgentler manners, the civil law has something like its modernprecedence; but the relative amount of space given to the modes ofredressing wrong, though not enormous, appears to have been large. Itmay be laid down, I think, that the more archaic the code, the fullerand the minuter is its penal legislation. The phenomenon has oftenbeen observed, and has been explained, no doubt to a great extentcorrectly, by the violence habitual to the communities which for thefirst time reduced their laws to writing. The legislator, it is said, proportioned the divisions of his work to the frequency of a certainclass of incidents in barbarian life. I imagine, however, that thisaccount is not quite complete. It should be recollected that thecomparative barrenness of civil law in archaic collections isconsistent with those other characteristics of ancient jurisprudencewhich have been discussed in this treatise. Nine-tenths of the civilpart of the law practised by civilised societies are made up of theLaw of Persons, of the Law of Property and of Inheritance, and of theLaw of Contract. But it is plain that all these provinces ofjurisprudence must shrink within narrower boundaries, the nearer wemake our approaches to the infancy of social brotherhood. The Law ofPersons, which is nothing else than the Law of Status, will berestricted to the scantiest limits as long as all forms of status aremerged in common subjection to Paternal Power, as long as the Wife hasno rights against her Husband, the Son none against his Father, andthe infant Ward none against the Agnates who are his Guardians. Similarly, the rules relating to Property and Succession can never beplentiful, so long as land and goods devolve within the family, and, if distributed at all, are distributed inside its circle. But thegreatest gap in ancient civil law will always be caused by the absenceof Contract, which some archaic codes do not mention at all, whileothers significantly attest the immaturity of the moral notions onwhich Contract depends by supplying its place with an elaboratejurisprudence of Oaths. There are no corresponding reasons for thepoverty of penal law, and accordingly, even if it be hazardous topronounce that the childhood of nations is always a period ofungoverned violence, we shall still be able to understand why themodern relation of criminal law to civil should be inverted in ancientcodes. I have spoken of primitive jurisprudence as giving to _criminal_ law apriority unknown in a later age. The expression has beenused for convenience' sake, but in fact the inspection of ancientcodes shows that the law which they exhibit in unusual quantities isnot true criminal law. All civilised systems agree in drawing adistinction between offences against the State or Community andoffences against the Individual, and the two classes of injuries, thuskept apart, I may here, without pretending that the terms have alwaysbeen employed consistently in jurisprudence, call Crimes and Wrongs, _crimina_ and _delicta_. Now the penal law of ancient communities isnot the law of Crimes; it is the law of Wrongs, or, to use the Englishtechnical word, of Torts. The person injured proceeds against thewrong-doer by an ordinary civil action, and recovers compensation inthe shape of money-damages if he succeeds. If the Commentaries ofGaius be opened at the place where the writer treats of the penaljurisprudence founded on the Twelve Tables, it will be seen that atthe head of the civil wrongs recognised by the Roman law stood_Furtum_ or _Theft_. Offences which we are accustomed to regardexclusively as _crimes_ are exclusively treated as _torts_, and nottheft only, but assault and violent robbery, are associated by thejurisconsult with trespass, libel and slander. All alike gave rise toan Obligation or _vinculum juris_, and were all requited by a paymentof money. This peculiarity, however, is most strongly brought out inthe consolidated Laws of the Germanic tribes. Without an exception, they describe an immense system of money compensations for homicide, and with few exceptions, as large a scheme of compensations for minorinjuries. "Under Anglo-Saxon law, " writes Mr. Kemble (_Anglo-Saxons_, i. 177), "a sum was placed on the life of every free man, according tohis rank, and a corresponding sum on every wound that could beinflicted on his person, for nearly every injury that could be done tohis civil rights, honour or peace; the sum being aggravated accordingto adventitious circumstances. " These compositions are evidentlyregarded as a valuable source of income; highly complex rules regulatethe title to them and the responsibility for them; and, as I havealready had occasion to state, they often follow a very peculiar lineof devolution, if they have not been acquitted at the decease of theperson to whom they belong. If therefore the criterion of a _delict_, _wrong_, or _tort_ be that the person who suffers it, and not theState, is conceived to be wronged, it may be asserted that in theinfancy of jurisprudence the citizen depends for protection againstviolence or fraud not on the Law of Crime but on the Law of Tort. Torts then are copiously enlarged upon in primitive jurisprudence. Itmust be added that Sins are known to it also. Of the Teutonic codes itis almost unnecessary to make this assertion, because those codes, inthe form in which we have received them, were compiled or recast byChristian legislators. But it is also true that non-Christian bodiesof archaic law entail penal consequences on certain classes of actsand on certain classes of omissions, as being violations of divineprescriptions and commands. The law administered at Athens by theSenate of Areopagus was probably a special religious code, and atRome, apparently from a very early period, the Pontificaljurisprudence punished adultery, sacrilege and perhaps murder. Therewere therefore in the Athenian and in the Roman States laws punishing_sins_. There were also laws punishing _torts_. The conception ofoffence against God produced the first class of ordinances; theconception of offence against one's neighbour produced the second; butthe idea of offence against the State or aggregate community did notat first produce a true criminal jurisprudence. Yet it is not to be supposed that a conception so simple andelementary as that of wrong done to the State was wanting in anyprimitive society. It seems rather that the very distinctness withwhich this conception is realised is the true cause which at firstprevents the growth of a criminal law. At all events, when the Romancommunity conceived itself to be injured, the analogy of a personalwrong received was carried out to its consequences with absoluteliteralness, and the State avenged itself by a single act on theindividual wrong-doer. The result was that, in the infancy of thecommonwealth, every offence vitally touching its security or itsinterests was punished by a separate enactment of the legislature. Andthis is the earliest conception of a _crimen_ or Crime--an actinvolving such high issues that the State, instead of leaving itscognisance to the civil tribunal or the religious court, directed aspecial law or _privilegium_ against the perpetrator. Every indictmenttherefore took the form of a bill of pains and penalties, and thetrial of a _criminal_ was a proceeding wholly extraordinary, whollyirregular, wholly independent of settled rules and fixed conditions. Consequently, both for the reason that the tribunal dispensing justicewas the sovereign state itself and also for the reason that noclassification of the acts prescribed or forbidden was possible, therewas not at this epoch any _Law_ of crimes, any criminal jurisprudence. The procedure was identical with the forms of passing an ordinarystatute; it was set in motion by the same persons and conducted withprecisely the same solemnities. And it is to be observed that, when aregular criminal law with an apparatus of Courts and officers for itsadministration had afterwards come into being, the old procedure, asmight be supposed from its conformity with theory, still in strictnessremained practicable; and, much as resort to such an expedient wasdiscredited, the people of Rome always retained the power of punishingby a special law offences against its majesty. The classical scholardoes not require to be reminded that in exactly the same manner theAthenian Bill of Pains and Penalties, or [Greek: eisangelia], survivedthe establishment of regular tribunals. It is known too that when thefreemen of the Teutonic races assembled for legislation, they alsoclaimed authority to punish offences of peculiar blackness orperpetrated by criminals of exalted station. Of this nature was thecriminal jurisdiction of the Anglo-Saxon Witenagemot. It may be thought that the difference which I have asserted to existbetween the ancient and modern view of penal law has only a verbalexistence. The community, it may be said, besides interposing topunish crimes legislatively, has from the earliest times interfered byits 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 wasinjured through his offence. But, however rigorous this inference mayseem to us now-a-days, it is very doubtful whether it was actuallydrawn by the men of primitive antiquity. How little the notion ofinjury to the community had to do with the earliest interferences ofthe State _through its tribunals_, is shown by the curiouscircumstances that in the original administration of justice, theproceedings were a close imitation of the series of acts which werelikely to be gone through in private life by persons who weredisputing, but who afterwards suffered their quarrel to be appeased. The magistrate carefully simulated the demeanour of a privatearbitrator casually called in. In order to show that this statement is not a mere fanciful conceit, Iwill produce the evidence on which it rests. Very far the most ancientjudicial proceeding known to us is the Legis Actio Sacramenti of theRomans, out of which all the later Roman Law of Actions may be provedto have grown. Gaius carefully describes its ceremonial. Unmeaning andgrotesque as it appears at first sight, a little attention enables usto decipher and interpret it. The subject of litigation is supposed to be in Court. If it ismoveable, it is actually there. If it be immoveable, a fragment orsample of it is brought in its place; land, for instance, isrepresented by a clod, a house by a single brick. In the exampleselected by Gaius, the suit is for a slave. The proceeding begins bythe plaintiff's advancing with a rod, which, as Gaius expresslytells, symbolised a spear. He lays hold of the slave and asserts aright to him with the words, "_Hunc ego hominem ex Jure Quiritium meumesse dico secundum suam causam sicut dixi_;" and then saying, "_Eccetibi Vindictam imposui_, " he touches him with the spear. The defendantgoes through the same series of acts and gestures. On this the Prætorintervenes, and bids the litigants relax their hold, "_Mittite ambohominem_. " They obey, and the plaintiff demands from the defendant thereason of his interference, "_Postulo anne dicas quâ ex causâvindicaveris_, " a question which is replied to by a fresh assertion ofright, "_Jus peregi sicut vindictam imposui_. " On this, the firstclaimant offers to stake a sum of money, called a Sacramentum, on thejustice of his own case, "_Quando tu injuriâ provocasti, D ærisSacramento te provoco_, " and the defendant, in the phrase "_Similiterego te_, " accepts the wager. The subsequent proceedings were no longerof a formal kind, but it is to be observed that the Prætor tooksecurity for the Sacramentum, which always went into the coffers ofthe State. Such was the necessary preface of every ancient Roman suit. It isimpossible, I think, to refuse assent to the suggestion of those whosee in it a dramatisation of the Origin of Justice. Two armed men arewrangling about some disputed property. The Prætor, _vir pietategravis_, happens to be going by, and interposes to stop the contest. The disputants state their case to him, and agree that he shallarbitrate between them, it being arranged that the loser, besidesresigning the subject of the quarrel, shall pay a sum of money to theumpire as remuneration for his trouble and loss of time. Thisinterpretation would be less plausible than it is, were it not that, by a surprising coincidence, the ceremony described by Gaius as theimperative course of proceeding in a Legis Actio is substantially thesame with one of the two subjects which the God Hephæstus is describedby Homer as moulding into the First Compartment of the Shield ofAchilles. In the Homeric trial-scene, the dispute, as if expresslyintended to bring out the characteristics of primitive society, is notabout property but about the composition for a homicide. One personasserts that he has paid it, the other that he has never received it. The point of detail, however, which stamps the picture as thecounterpart of the archaic Roman practice is the reward designed forthe judges. Two talents of gold lie in the middle, to be given to himwho shall explain the grounds of the decision most to the satisfactionof the audience. The magnitude of this sum as compared with thetrifling amount of the Sacramentum seems to me indicative of theindifference between fluctuating usage and usage consolidated intolaw. The scene introduced by the poet as a striking andcharacteristic, but still only occasional, feature of city-life in theheroic age has stiffened, at the opening of the history of civilprocess, into the regular, ordinary formalities of a lawsuit. It isnatural therefore that in the Legis Actio the remuneration of theJudge should be reduced to a reasonable sum, and that, instead ofbeing adjudged to one of a number of arbitrators by popularacclamation, it should be paid as a matter of course to the Statewhich the Prætor represents. But that the incidents described sovividly by Homer, and by Gaius with even more than the usual crudityof technical language, have substantially the same meaning, I cannotdoubt; and, in confirmation of this view, it may be added that manyobservers of the earliest judicial usages of modern Europe haveremarked that the fines inflicted by Courts on offenders wereoriginally _sacramenta_. The State did not take from the defendant acomposition for any wrong supposed to be done to itself, but claimed ashare in the compensation awarded to the plaintiff simply as the fairprice of its time and trouble. Mr. Kemble expressly assigns thischaracter to the Anglo-Saxon _bannum_ or _fredum_. Ancient law furnishes other proofs that the earliest administrators ofjustice simulated the probable acts of persons engaged in a privatequarrel. In settling the damages to be awarded, they took as theirguide the measure of vengeance likely to be exacted by an aggrievedperson under the circumstances of the case. This is the trueexplanation of the very different penalties imposed by ancient law onoffenders caught in the act or soon after it and on offenders detectedafter considerable delay. Some strange exemplifications of thispeculiarity are supplied by the old Roman law of Theft. The Laws ofthe Twelve Tables seem to have divided Thefts into Manifest andNon-Manifest, and to have allotted extraordinarily different penaltiesto the offence according as it fell under one head or the other. TheManifest Thief was he who was caught within the house in which he hadbeen pilfering, or who was taken while making off to a place of safetywith the stolen goods; the Twelve Tables condemned him to be put todeath if he were already a slave, and, if he was a freeman, they madehim the bondsman of the owner of the property. The Non-Manifest Thiefwas he who was detected under any other circumstances than thosedescribed; and the old code simply directed that an offender of thissort should refund double the value of what he had stolen. In Gaius'sday the excessive severity of the Twelve Tables to the Manifest Thiefhad naturally been much mitigated, but the law still maintained theold principle by mulcting him in fourfold the value of the stolengoods, while the Non-Manifest Thief still continued to pay merely thedouble. The ancient lawgiver doubtless considered that the injuredproprietor, if left to himself, would inflict a very differentpunishment when his blood was hot from that with which he would besatisfied when the Thief was detected after a considerable interval;and to this calculation the legal scale of penalties was adjusted. Theprinciple is precisely the same as that followed in the Anglo-Saxonand other Germanic codes, when they suffer a thief chased down andcaught with the booty to be hanged or decapitated on the spot, whilethey exact the full penalties of homicide from anybody who kills himafter the pursuit has been intermitted. These archaic distinctionsbring home to us very forcibly the distance of a refined from a rudejurisprudence. The modern administrator of justice has confessedly oneof the hardest tasks before him when he undertakes to discriminatebetween the degrees of criminality which belong to offences fallingwithin the same technical description. It is always easy to say that aman is guilty of manslaughter, larceny, or bigamy, but it is oftenmost difficult to pronounce what extent of moral guilt he hasincurred, and consequently what measure of punishment he has deserved. There is hardly any perplexity in casuistry, or in the analysis ofmotive, which we may not be called upon to confront, if we attempt tosettle such a point with precision; and accordingly the law of our dayshows an increasing tendency to abstain as much as possible fromlaying down positive rules on the subject. In France, the jury is leftto decide whether the offence which it finds committed has beenattended by extenuating circumstances; in England, a nearly unboundedlatitude in the selection of punishments is now allowed to the judge;while all States have in reserve an ultimate remedy for themiscarriages of law in the Prerogative of Pardon, universally lodgedwith the Chief Magistrate. It is curious to observe how little the menof primitive times were troubled with these scruples, how completelythey were persuaded that the impulses of the injured person were theproper measure of the vengeance he was entitled to exact, and howliterally they imitated the probable rise and fall of his passions infixing their scale of punishment. I wish it could be said that theirmethod of legislation is quite extinct. There are, however, severalmodern systems of law which, in cases of graver wrong, admit the factof the wrong-doer having been taken in the act to be pleaded injustification of inordinate punishment inflicted on him by thesufferer--an indulgence which, though superficially regarded it mayseem intelligible, is based, as it seems to me, on a very lowmorality. Nothing, I have said, can be simpler than the considerations whichultimately led ancient societies to the formation of a true criminaljurisprudence. The State conceived itself to be wronged, and thePopular Assembly struck straight at the offender with the samemovement which accompanied its legislative action. It is further trueof the ancient world--though not precisely of the modern, as I shallhave occasion to point out--that the earliest criminal tribunals weremerely subdivisions, or committees, of the legislature. This, at allevents, is the conclusion pointed at by the legal history of the twogreat states of antiquity, with tolerable clearness in one case, andwith absolute distinctness in the other. The primitive penal law ofAthens entrusted the castigation of offences partly to the Archons, who seem to have punished them as _torts_, and partly to the Senate ofAreopagus, which punished them as _sins_. Both jurisdictions weresubstantially transferred in the end to the Heliæa, the High Court ofPopular Justice, and the functions of the Archons and of the Areopagusbecame either merely ministerial or quite insignificant. But "Heliæa"is only an old word for Assembly; the Heliæa of classical times wassimply the Popular Assembly convened for judicial purposes, and thefamous Dikasteries of Athens were only its subdivisions or panels. Thecorresponding changes which occurred at Rome are still more easilyinterpreted, because the Romans confined their experiments to thepenal law, and did not, like the Athenians, construct popular courtswith a civil as well as a criminal jurisdiction. The history of Romancriminal jurisprudence begins with the old Judicia Populi, at whichthe Kings are said to have presided. These were simply solemn trialsof great offenders under legislative forms. It seems, however, thatfrom an early period the Comitia had occasionally delegated itscriminal jurisdiction to a Quæstio or Commission, which bore much thesame relation to the Assembly as a Committee of the House of Commonsbears to the House itself, except that the Roman Commissioners orQuæstores did not merely _report_ to the Comitia, but exercised allpowers which that body was itself in the habit of exercising, even tothe passing sentence on the Accused. A Quæstio of this sort was onlyappointed to try a particular offender, but there was nothing toprevent two or three Quæstiones sitting at the same time; and it isprobable that several of them were appointed simultaneously, whenseveral grave cases of wrong to the community had occurred together. There are also indications that now and then these Quæstionesapproached the character of our _Standing_ Committees, in that theywere appointed periodically, and without waiting for occasion to arisein the commission of some serious crime. The old Quæstores Parricidii, who are mentioned in connection with transactions of very ancientdate, as being deputed to try (or, as some take it, to search out andtry) all cases of parricide and murder, seem to have been appointedregularly every year; and the Duumviri Perduellionis, or Commission ofTwo for trial of violent injury to the Commonwealth, are also believedby most writers to have been named periodically. The delegations ofpower to these latter functionaries bring us some way forwards. Instead of being appointed _when and as_ state-offences werecommitted, they had a general, though a temporary jurisdiction oversuch as _might_ be perpetrated. Our proximity to a regular criminaljurisprudence is also indicated by the general terms "Parricidium" and"Perduellio" which mark the approach to something like aclassification of crimes. The true criminal law did not however come into existence till theyear B. C. 149, when L. Calpurnius Piso carried the statute known asthe Lex Calpurnia de Repetundis. The law applied to cases RepetundarumPecuniarum, that is, claims by Provincials to recover moniesimproperly received by a Governor-General, but the great and permanentimportance of this statute arose from its establishing the firstQuæstio Perpetua. A Quæstio Perpetua was a _Permanent_ Commission asopposed to those which were occasional and to those which weretemporary. It was a regular criminal tribunal whose existence datedfrom the passing of the statute creating it and continued till anotherstatute should pass abolishing it. Its members were not speciallynominated, as were the members of the older Quæstiones, but provisionwas made in the law constituting it for selecting from particularclasses the judges who were to officiate, and for renewing them inconformity with definite rules. The offences of which it tookcognisance were also expressly named and defined in this statute, andthe new Quæstio had authority to try and sentence all persons infuture whose acts should fall under the definitions of crime suppliedby the law. It was therefore a regular criminal judicature, administering a true criminal jurisprudence. The primitive history of criminal law divides itself therefore intofour stages. Understanding that the conception of _Crime_, asdistinguished from that of _Wrong_ or _Tort_ and from that of _Sin_, involves the idea of injury to the State or collective community, wefirst find that the commonwealth, in literal conformity with theconception, itself interposed directly, and by isolated acts, toavenge itself on the author of the evil which it had suffered. This isthe point from which we start; each indictment is now a bill of painsand penalties, a special law naming the criminal and prescribing hispunishment. A _second_ step is accomplished, when the multiplicity ofcrimes compels the legislature to delegate its powers to particularQuæstiones or Commissions, each of which is deputed to investigate aparticular accusation, and if it be proved, to punish the particularoffender. Yet _another_ movement is made when the legislature, insteadof waiting for the alleged commission of a crime as the occasion ofappointing a Quæstio, periodically nominates Commissioners like theQuæstores Parricidii and the Duumviri Perduellionis, on the chance ofcertain classes of crimes being committed, and in the expectation thatthey _will_ be perpetrated. The _last_ stage is reached when theQuæstiones from being periodical or occasional become permanentBenches or Chambers--when the judges, instead of being named in theparticular law nominating the Commission, are directed to be chosenthrough all future time in a particular way and from a particularclass--and when certain acts are described in general language anddeclared to be crimes, to be visited, in the event of theirperpetration, with specified penalties appropriated to eachdescription. If the Quæstiones Perpetuæ had had a longer history, they woulddoubtless have come to be regarded as a distinct institution, andtheir relation to the Comitia would have seemed no closer than theconnection of our own Courts of Law with the Sovereign, who istheoretically the fountain of justice. But the Imperial despotismdestroyed them before their origin had been completely forgotten, and, so long as they lasted, these Permanent Commissions were looked uponby the Romans as the mere depositaries of a delegated power. Thecognisance of crimes was considered a natural attribute of thelegislature, and the mind of the citizen never ceased to be carriedback from the Quæstiones, to the Comitia which had deputed them to putinto exercise some of its own inalienable functions. The view whichregarded the Quæstiones, even when they became permanent, as mereCommittees of the Popular Assembly--as bodies which only ministered toa higher authority--had some important legal consequences which lefttheir mark on the criminal law to the very latest period. Oneimmediate result was that the Comitia continued to exercise criminaljurisdiction by way of bill of pains and penalties, long after theQuæstiones had been established. Though the legislature had consentedto delegate its powers for the sake of convenience to bodies externalto itself, it did not follow that it surrendered them. The Comitia andthe Quæstiones went on trying and punishing offenders side by side;and any unusual outburst of popular indignation was sure, until theextinction of the Republic, to call down upon its object an indictmentbefore the Assembly of the Tribes. One of the most remarkable peculiarities of the institutions of theRepublic is also traceable to this dependance of the Quæstiones on theComitia. The disappearance of the punishment of Death from the penalsystem of Republican Rome used to be a very favourite topic with thewriters of the last century, who were perpetually using it to pointsome theory of the Roman character or of modern social economy. Thereason which can be confidently assigned for it stamps it as purelyfortuitous. Of the three forms which the Roman legislaturesuccessively assumed, one, it is well known--the ComitiaCenturiata--was exclusively taken to represent the State as embodiedfor military operations. The Assembly of the Centuries, therefore, hadall powers which may be supposed to be properly lodged with a Generalcommanding an army, and, among them, it had authority to subject alloffenders to the same correction to which a soldier rendered himselfliable by breaches of discipline. The Comitia Centuriata couldtherefore inflict capital punishment. Not so, however, the ComitiaCuriata or Comitia Tributa. They were fettered on this point by thesacredness with which the person of a Roman citizen, inside the wallsof the city, was invested by religion and law; and, with respect tothe last of them, the Comitia Tributa, we know for certain that itbecame a fixed principle that the Assembly of the Tribes could at mostimpose a fine. So long as criminal jurisdiction was confined to thelegislature, and so long as the assemblies of the centuries and of theTribes continued to exercise co-ordinate powers, it was easy to preferindictments for graver crimes before the legislative body whichdispensed the heavier penalties; but then it happened that the moredemocratic assembly, that of the Tribes, almost entirely supersededthe others, and became the ordinary legislature of the later Republic. Now the decline of the Republic was exactly the period during whichthe Quæstiones Perpetuæ were established, so that the statutescreating them were all passed by a legislative assembly which itselfcould not, at its ordinary sittings, punish a criminal with death. Itfollowed that the Permanent Judicial Commissions, holding a delegatedauthority, were circumscribed in their attributes and capacities bythe limits of the powers residing with the body which deputed them. They could do nothing which the Assembly of the Tribes could not havedone; and, as the Assembly could not sentence to death, the Quæstioneswere equally incompetent to award capital punishment. The anomaly thusresulting was not viewed in ancient times with anything like thefavour which it has attracted among the moderns, and indeed, while itis questionable whether the Roman character was at all the better forit, it is certain that the Roman Constitution was a great deal theworse. Like every other institution which has accompanied the humanrace down the current of its history, the punishment of death is anecessity of society in certain stages of the civilising process. There is a time when the attempt to dispense with it baulks both ofthe two great instincts which lie at the root of all penal law. Without it, the community neither feels that it is sufficientlyrevenged on the criminal, nor thinks that the example of hispunishment is adequate to deter others from imitating him. Theincompetence of the Roman Tribunals to pass sentence of death leddistinctly and directly to those frightful Revolutionary intervals, known as the Proscriptions, during which all law was formallysuspended simply because party violence could find no other avenue tothe vengeance for which it was thirsting. No cause contributed sopowerfully to the decay of political capacity in the Roman people asthis periodical abeyance of the laws; and, when it had once beenresorted to, we need not hesitate to assert that the ruin of Romanliberty became merely a question of time. If the practice of theTribunals had afforded an adequate vent for popular passion, the formsof judicial procedure would no doubt have been as flagrantly pervertedas with us in the reigns of the later Stuarts, but national characterwould not have suffered as deeply as it did, nor would the stabilityof Roman institutions have been as seriously enfeebled. I will mention two more singularities of the Roman Criminal Systemwhich were produced by the same theory of judicial authority. Theyare, the extreme multiplicity of the Roman criminal tribunals, and thecapricious and anomalous classification of crimes which characterisedRoman penal jurisprudence throughout its entire history. Every_Quæstio_, it has been said, whether Perpetual or otherwise, had itsorigin in a distinct statute. From the law which created it, itderived its authority; it rigorously observed the limits which itscharter prescribed to it, and touched no form of criminality whichthat charter did not expressly define. As then the statutes whichconstituted the various Quæstiones were all called forth by particularemergencies, each of them being in fact passed to punish a class ofacts which the circumstances of the time rendered particularly odiousor particularly dangerous, these enactments made not the slightestreference 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 Quæstiones to administer them; nor wasany attempt made during the Republic to fuse these distinct judicialbodies into one, or to give symmetry to the provisions of the statuteswhich appointed them and defined their duties. The state of the Romancriminal jurisdiction at this period, exhibited some resemblances tothe administration of civil remedies in England at the time when theEnglish Courts of Common Law had not as yet introduced thosefictitious averments into their writs which enabled them to trespasson each other's peculiar province. Like the Quæstiones, the Courts ofQueen's Bench, Common Pleas, and Exchequer were all theoreticalemanations from a higher authority, and each entertained a specialclass of cases supposed to be committed to it by the fountain of itsjurisdiction; but then the Roman Quæstiones were many more than threein number, and it was infinitely less easy to discriminate the actswhich fell under the cognisance of each Quæstio, than to distinguishbetween the provinces of the three Courts in Westminster Hall. Thedifficulty of drawing exact lines between the spheres of the differentQuæstiones made the multiplicity of Roman tribunals something morethan a mere inconvenience; for we read with astonishment that when itwas not immediately clear under what general description a man'salleged offences ranged themselves, he might be indicted at once orsuccessively before several different Commissions, on the chance ofsome one of them declaring itself competent to convict him; and, although conviction by one Quæstio ousted the jurisdiction of therest, acquittal by one of them could not be pleaded to an accusationbefore another. This was directly contrary to the rule of the Romancivil law; and we may be sure that a people so sensitive as the Romansto anomalies (or, as their significant phrase was, to _inelegancies_)in jurisprudence, would not long have tolerated it, had not themelancholy history of the Quæstiones caused them to be regarded muchmore as temporary weapons in the hands of factions than as permanentinstitutions for the correction of crime. The Emperors soon abolishedthis multiplicity and conflict of jurisdiction; but it is remarkablethat they did not remove another singularity of the criminal law whichstands in close connection with the number of the Courts. Theclassifications of crimes which are contained even in the CorpusJuris of Justinian are remarkably capricious. Each Quæstio had, infact, confined itself to the crimes committed to its cognisance by itscharter. These crimes, however, were only classed together in theoriginal statute because they happened to call simultaneously forcastigation at the moment of passing it. They had not thereforeanything necessarily in common; but the fact of their constituting theparticular subject-matter of trials before a particular Quæstioimpressed itself naturally on the public attention, and so inveteratedid the association become between the offences mentioned in the samestatute that, even when formal attempts were made by Sylla and by theEmperor Augustus to consolidate the Roman criminal law, the legislatorpreserved the old grouping. The Statutes of Sylla and Augustus werethe foundation of the penal jurisprudence of the Empire, and nothingcan be more extraordinary than some of the classifications which theybequeathed 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 Sylla, the Lex Cornelia deSicariis et Veneficis, had given jurisdiction over all these threeforms of crime to the same Permanent Commission. It seems too thatthis capricious grouping of crimes affected the vernacular speech ofthe Romans. People naturally fell into the habit of designating allthe offences enumerated in one law by the first name on the list, which doubtless gave its style to the Law Court deputed to try themall. All the offences tried by the Quæstio De Adulteriis would thus becalled Adultery. I have dwelt on the history and characteristics of the RomanQuæstiones because the formation of a criminal jurisprudence isnowhere else so instructively exemplified. The last Quæstiones wereadded by the Emperor Augustus, and from that time the Romans may besaid to have had a tolerably complete criminal law. Concurrently withits growth, the analogous process had gone on, which I have called theconversion of Wrongs into Crimes, for, though the Roman legislaturedid not extinguish the civil remedy for the more heinous offences, itoffered the sufferer a redress which he was sure to prefer. Still, even after Augustus had completed his legislation, several offencescontinued to be regarded as Wrongs, which modern societies look uponexclusively as Crimes; nor did they become criminally punishable tillsome late but uncertain date, at which the law began to take notice ofa new description of offences called in the Digest _criminaextraordinaria_. These were doubtless a class of acts which the theoryof Roman jurisprudence treated merely as wrongs; but the growing senseof the majesty of society revolted from their entailing nothing worseon their perpetrator than the payment of money damages, andaccordingly the injured person seems to have been permitted, if hepleased, to pursue them as crimes _extra ordinem_, that is by a modeof redress departing in some respect or other from the ordinaryprocedure. From the period at which these _crimina extraordinaria_were first recognised, the list of crimes in the Roman State must havebeen as long as in any community of the modern world. It is unnecessary to describe with any minuteness the mode ofadministering criminal justice under the Roman Empire, but it is to benoted that both its theory and practice have had powerful effect onmodern society. The Emperors did not immediately abolish theQuæstiones, and at first they committed an extensive criminaljurisdiction to the Senate, in which, however servile it might showitself in fact, the Emperor was no more nominally than a Senator likethe rest. But some sort of collateral criminal jurisdiction had beenclaimed by the Prince from the first; and this, as recollections ofthe free commonwealth decayed, tended steadily to gain at the expenseof the old tribunals. Gradually the punishment of crimes wastransferred to magistrates directly nominated by the Emperor and theprivileges of the Senate passed to the Imperial Privy Council, whichalso became a Court of ultimate criminal appeal. Under theseinfluences the doctrine, familiar to the moderns, insensibly shapeditself that the Sovereign is the fountain of all Justice and thedepositary of all Grace. It was not so much the fruit of increasingadulation and servility as of the centralisation of the Empire whichhad by this time perfected itself. The theory of criminal justice had, in fact, worked round almost to the point from which it started. Ithad begun in the belief that it was the business of the collectivecommunity to avenge its own wrongs by its own hand; and it ended inthe doctrine that the chastisement of crimes belonged in an especialmanner to the Sovereign as representative and mandatary of hispeople. The new view differed from the old one chiefly in the air ofawfulness and majesty which the guardianship of justice appeared tothrow around the person of the Sovereign. This later Roman view of the Sovereign's relation to justice certainlyassisted in saving modern societies from the necessity of travellingthrough the series of changes which I have illustrated by the historyof the Quæstiones. In the primitive law of almost all the races whichhave peopled Western Europe there are vestiges of the archaic notionthat the punishment of crimes belongs to the general assembly offreemen; and there are some States--Scotland is said to be one ofthem--in which the parentage of the existing judicature can be tracedup to a Committee of the legislative body. But the development of thecriminal law was universally hastened by two causes, the memory of theRoman Empire and the influence of the Church. On the one handtraditions of the majesty of the Cæsars, perpetuated by the temporaryascendency of the House of Charlemagne, were surrounding Sovereignswith a prestige which a mere barbarous chieftain could never otherwisehave acquired and were communicating to the pettiest feudal potentatethe character of guardian of society and representative of the State. On the other hand, the Church, in its anxiety to put a curb onsanguinary ferocity, sought about for authority to punish the gravermisdeeds, and found it in those passages of Scripture which speak withapproval of the powers of punishment committed to the civilmagistrate. The New Testament was appealed to as proving that secularrulers exist for the terror of evildoers; the Old Testament, as layingdown that "Whoso sheddeth man's blood, by man shall his blood beshed. " There can be no doubt, I imagine, that modern ideas on thesubject of crime are based upon two assumptions contended for by theChurch in the Dark Ages--first, that each feudal ruler, in his degree, might be assimilated to the Roman Magistrates spoken of by Saint Paul;and next, that the offences which he was to chastise were thoseselected for prohibition in the Mosaic Commandments, or rather such ofthem 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 Churchonly admitted the co-operation of the secular arm for the purpose ofinflicting severer punishment in cases of extraordinaryaggravation. At the same time, she taught that murder and robbery withtheir various modifications were under the jurisdiction of civilrulers, not as an accident of their position but by the expressordinance 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 variousideas that prevailed in his day as to the origin of criminaljurisdiction. It will be seen that Alfred attributes it partly to theauthority of the Church and partly to that of the Witan, while heexpressly claims for treason against the lord the same immunity fromordinary rules which the Roman Law of Majestas had assigned to treasonagainst the Cæsar. "After this it happened, " he writes, "that manynations received the faith of Christ, and there were many synodsassembled throughout the earth, and among the English race also afterthey had received the faith of Christ, both of holy bishops and oftheir exalted Witan. They then ordained that, out of that mercy whichChrist had taught, secular lords, with their leave, might without sintake for every misdeed the _bot_ in money which they ordained; exceptin cases of treason against a lord, to which they dared not assign anymercy because Almighty God adjudged none to them that despised Him, nor did Christ adjudge any to them which sold Him to death; and Hecommanded that a lord should be loved like Himself. " INDEX Austin, 69, 171; _Province of Jurisprudence Determined_, 4 Ayala, 64 Bentham, 18, 46, 54, 70, 147; _Fragment on Government_, 4 Blackstone, 67, 89, 150, 152 _Cambridge Essays_, 1856, Maine, 205, 212 Capture in war, 145, 146 Casuistry, 205, 206, 207 Charlemagne, 62, 233 Codes, Attic of Solon, 9; era of, 8; first introduced into the West, 10; Hindoo Law of Menu, 10-12; Justinian, 25, 27; Napoléon, 104; Roman, superiority over Hindoo, 10-12; Twelve Tables of Rome, 1, 8, 9, 12, 20 Contract, Austin on, 190; Bentham on, 190; Imperative Law, 182; judicial and popular error, 181; Law of Nations, 181, 196, 197; literal or written, 194; origin lies in the family, 99; pact or convention, 184, 185; real, 195; Roman, classification, 191, 192; consensual, 195-198; Domestic System, 194; Nexum, definition of, 185-189; Rousseau, 181; sale, 188 Conveyances and contracts, confusion between, 185-187; and mancipation, 185 _Corpus juris civilis_, 26 Creditors, powers of, in ancient system, 189 Crimes and wrongs, confusion between, 231, 232; distinction between primitive and modern, 217, 218; Kemble in _Anglo-Saxons_, 218 Criminal Law, Athens, 224; degree of guilt, 223; four stages of primitive history, 226; influence of Church, 233; primitive religious code, 218, 219; Roman, crime against State, 219; B. C. 149, 225; origin of, 225; sentence of death, 227-229; theft, 222, 223; tribunals, 228-230; under emperors, 230-232 Customary Law, epoch of, 7, 8; Hindoo, 4 Dangers of Law, rigidity, too rapid development, 44, 45 Debtors, severity of ancient system, 189 Equity, 172; early history of, 15; Lord Eldon on, 40; English, 40, 41; meaning of, 17; origin, 34, 35; Roman compared with English, 40-42 Feudalism, explanation of, 214 Gaius, 90, 174, 220-223 Grote, decline of kingly rule, 6; _History of Greece_, 3, 5; law administered by aristocracies, 7 Grotius, Hugo, 56, 58, 59, 64; _De Jure Belli et Pacis_, 205 Homer, earliest notions of law derived from, 2, 3; Themis, Themistes, 2-5 Indian (Hindoo) Law, _see_ separate headings Codes, Customary, Primogeniture, Property, Testamentary Law, Village communities Institutional Treatise (Justinian), 27 International Law, 64; and occupancy, 145 Law of Nations (Jus Gentium), incorporation with Roman Law, 36, 37; origin of, 27-31 Legal fictions, benefit of, 77; examples in English Law, 18; in Roman Law, 15, 16; meaning, useful purpose of, 15, 16 Legis Actio Sacramenti, Gaius on, 220, 221 Legislation, the agent of legal improvement, 17; differing from equity, legal fictions, 17, 18 _Lettres Persanes_, 183 Maine, _Cambridge Essays_, 1856, 205, 212 Mancipation, 120, 121, 163-169, 185 Menu, Laws of, 10-12 Montesquieu, 49, 51, 183 Natural Law (Law of Nature), American Law and, 56; antagonistic to historical method, 53; confusing past with present, 43; equality of man, 54-56; equality of sex, 90; feudalism, 62, 65; French history, 47, 48, 50, 53; French Law, 56; Greek interpretation of, 44; Grotian system, 56, 58, 59, 64-66; incorporated with Roman Law, 36, 37; influence of Stoics, 32, 33; Modern International Law, 56-60; most critical period, 50; modern society, 54; occupancy, 145-147, 153; origin of, 31, 32; private property, 164; Rousseau on, 51; slavery, 95; territorial sovereignty, 60-63; Testamentary Law, 103, 104 Occupancy, 144, 145; in Roman Law, 145 Pascal, _Provincial Letters_, 207 Prescriptions, 167, 168; and Canon Law, 168 Primogeniture, Celtic customs, 141, 142; feudal system, 135-137; Hindoo Law, 134, 137, 141; Mahometan Law, 142; Roman Law, 133, 134 Property, natural modes of acquiring, 144 Property Law, ancient Germanic, 165, ancient Sclavonic, 165; descent in Middle Ages, 132; Indian Law, 165; origin of, 145; possession, 170, 172; private, ancient forms of transfer, 160, 162-164; Roman, 60, 66, 166; Cessio in Jure, 170; Edictum Perpetuum, 37; Emphyteusis, 175-178; Gaius on, 174; Justinian, 174; law of persons and things, 152; mancipation, 163, 169; possessory interdicts, 171; Praetor's interdict, 172; Res Mancipi, 160-164, 173; Res Nec Mancipi, 164; system of farming, 176; usucapion, 167, 169, 173 Roman Law, _see_ separate headings Contracts, Criminal, Property, Occupancy, Testamentary; Decemviral Law, 20; definition of inheritance, 107; end of period of jurists, 40; influence of Praetor, 38; intestacy, 127-130; law of inheritance, 111; Leges Corneliae, 24, 25; Leges Juliae, 25; marriage, 91; obligation in, 190, 191, 195, 197; Pandects of Justinian, 39; powers of Praetor, 37, 39; Praetorian edict, 24, 25; Responsa Prudentum, 20, 21, 24; reverence of Romans for, 22; Statute Law, 25; Twelve Tables, 1, 8, 9, 12, 20 Rousseau, on Social Contract, 181 Savigny, 171; on occupancy, 150 Slavery, American opinions of, 96; influence of Law of Nature upon, 97; Roman system, 95-97 Status, definition of, 100 Testamentary Law, adoption and testation, 114, 115; Church's influence upon, 102; corporation, aggregate and sole, 110; Hindoo Law, 113, 114; Hindoo compared with Roman, 113; Law of Nature, 103, 104; Roman Law, 111, 112, 117-123; mancipation, 120, 123; Praetorian testament, 123-125; Twelve Tables, 112, 119, 122; Roman family, agnatic and cognatic relationship, 86-89; duties and rights of father, 85; effects of Christianity, 92; family, the basis of State, 75, 76; kinship, 86, 88; modification of parental privileges, 84; origin of contract in, 99; origin of law of persons, 89; parental powers, 80-82, 88 Theology, and Jurisprudence, 208-210; moral, 204, 205 Theories, based on Roman doctrine, Bentham, 69; Blackstone, 67; differing from Roman Glossators, annotations of, 67; Grotius, 67; Jurisprudence, dissatisfaction with, 70; Locke, 67; Montesquieu, 68; patriarchal, 72-75 Universal succession, 106; in Roman Law, 106, 107 "Universatis Juris, " 105 Village communities, Indian, 153, 154, 156, 158; Indian, compared with Roman gens, 155; Indian, Elphinstone, _History of India_, 155, 156; Russian 157 Women, ancient rules defeated by Natural Law, 90; Canon Law, 93; English Common Law, 93, 94; Roman family, 90, 91; gradual independence under Roman Law, 91, 92; Roman, perpetual tutelage of, 90; under Roman Law, 89, 90; subordination to husband in Middle Ages, 92; subordination of Roman to relations, 90 MADE AT THETEMPLE PRESS LETCHWORTHIN GREAT BRITAIN