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 Cornell University Library 
 JC21 .M22 1884 
 
 Ancient law: its connection witli the ear 
 
 i 
 
 olin 
 
 3 1924 030 429 298 
 
Cornell University 
 Library 
 
 The original of tiiis book is in 
 tine Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924030429298 
 
ancie:nt law. 
 
BY TBE SAME AUTHOR. 
 
 DISSEETATIONS ON EAELY LAW AND 
 
 CUSTOM. 8vo. 9». 
 
 VILLAGE COMMUNITIES IN THE EAST 
 AND WEST. 8vo. 9«. 
 
 THE EAELY HISTOEY OF INSTITUTIONS. 
 8vo. 9s. 
 
 POPULAE GOVEENMENT. H. Nature of 
 Democracy. III. Age of Progress. IV. Constitution 
 of the United States. Svo. 7s. 6d. 
 
 INTBENATIONAL LAW. Svo. 7s. &d. 
 
ANCIENT LAW 
 
 ITS CONNECTION WITH THE EAELY HISTORY 
 
 OF SOCIETY AND ITS EELATION 
 
 TO MODEEN IDEAS 
 
 BY SIE HEMT STJMNER MAINE, K.C.S.l. LL.D. F.E.S. 
 
 rOKElON ASSOCIATE MEMBER OF THE XN5TXTI7TB OF FRANCE 
 
 SEVENTEENTH IMPRESSION 
 
 LONDON 
 JOHN MURRAY, ALBEMARLE STREET 
 
 1901 
 
k 
 
 PRIHTED ET 
 
 SPOTTISWOODB AKD CO. LTD., HEW-STBEET SQUABE 
 
 LONDON 
 
PREFACE 
 
 THE TENTH EDITION. 
 
 The theory of legal development propounded in this 
 volume has been generally accepted ; but it has been 
 thought that, in his Fifth Chapter on "Primitive 
 Society and Ancient Law," the Author has not done 
 sufficient justice to investigations which appear to- 
 show the existence of states of society still more 
 rudimentary than that vividly described in the 
 Homeric lines quoted at page 124, and ordinarily 
 known ag the Patriarchal State. The Author at page 
 120 has mentioned " accounts by contemporary ob- 
 servers of civihsations less advanced than their own," 
 as capable of affording peculiarly good evidence con- 
 cerning the rudiments of society ; and, in fact, since 
 his work was first published, in 1861, the observation 
 of savage or extremely barbarous races has brought to- 
 
Vl PREFACE TO THE TENTH EDITION. 
 
 light forms of social organisation extremely unlike 
 that to which he has referred the beginnings of law, 
 and possibly in some cases of greater antiquity. The 
 subject is, properly speaking, beyond the scope of the 
 present work, but he has given his opinion upon 
 the results of these more recent inquiries in a paper 
 -on " Theories of Primitive Society," pubhshed in a 
 volume on " Early Law and Custom " (Murray, 1883). 
 
 H. S. M. 
 
 London : November 1S81. 
 
PEEFACE 
 
 THE riFTH EDITION. 
 
 While further reflection and research have not led? 
 the Author of this work to alter his views on most of 
 the matters of which it treats, he has convinced him- 
 self that the opinions expressed in the First Chapter 
 on the difficult and stiU obscure subject of the origin 
 of Customary Law require correction and modifica- 
 tion. He has attempted to supply a part of the 
 necessary corrections and modifications in a volume 
 called " Village Communities in the East and West "' 
 (London: Murray, 1871). 
 
 H. S. M. 
 
 uasDOS : December 1873. 
 
PREFACE 
 
 TO 
 
 THE THIRD EDITION. 
 
 The Second and Third Editions of this work have 
 teen ^ubstantiallv reprints of the First. Some few 
 errors have, however, been corrected. 
 
 It is necessary to remind the reader that the First 
 Edition was published in 1861. The course of 
 events since that period in Russia and in Northern 
 America has taken away much of its application to 
 existing facts from the language employed by the 
 writer on the subject of serfage in Russia, of the 
 Russian viQage-communities, and of negro-slavery 
 in the United States. It may perhaps be interesting 
 to the reader to observe the bearing of the changes 
 «\rhich have taken place on the argument of that 
 part of the work. 
 
 H. S. M. 
 
 CAI.OUTTA. : November 1866. 
 
PREFACE 
 
 TO 
 
 THE FIEST EDTTION- 
 
 The chief object of the following pages is to indicate 
 some of the earliest ideas of mankind, as they are 
 reflected in Ancient Law, and to point out the rela- 
 tion of those ideas to modern thought. Much of the 
 inquiry attempted could not have been prosecuted 
 with the slightest hope of a useful result if there had 
 not existed a body of law, like that of the Romans, 
 bearing in its earlier portions the traces of the most 
 remote antiquity and supplying from its later rules 
 the staple of the civil institutions by which modem 
 society is even now controlled. The necessity of 
 taking the Roman law as a typical system, has com: 
 pelled the Author to draw from it what may appear 
 a disproportionate number of his illustrations ; but 
 it has not been his intention to write a treatise on 
 
X PREFACE TO THE FIRST EDITION. 
 
 Roman jurisprudence, and he has as much as possible 
 avoided all discussions which might give that appear- 
 ance to his work. The space allotted in the Third 
 and Fourth Chapters to certain philosophical theories 
 of the Roman Jurisconsults, has been appropriated 
 to them for two reasons. In the first place, those 
 theories appear to the Author to have had a much 
 wider and more permanent influence on the thought 
 and action of the world than is usually supposed. 
 Secondly, they are believed to be the ultimate soiu-ce 
 of most of the views which have been prevalent, 
 tiU quite recently, on the subjects treated of in 
 this volume. It was impossible for the Author to 
 proceed far with his undertaking, without stating his 
 opinion on the origin, meaning, and value of those 
 speculations. 
 
 H S. M. 
 
 LoWDOIt : Janmury 1861. 
 
CONTENTS. 
 
 \/ I. Ancient Codes 1 
 
 VII. Legal Fictions ..... .21 
 
 "'ill. Law as Nature and Equity . . . 44 
 
 rV. The Modern History of the Law of Nature . 73 
 
 V. Primitive Society and Ancient Law . 113 
 
 VI. The Early History, of Testamentary Succession . 171 
 
 VII. Ancient and Modern Ideas respecting Wills and 
 
 Successions .215 
 
 Vill. The Early History of Property .... 244 ? 
 IX. The Early History of Contract .... 304 
 X. The Early History of Delict and Crime . , 367 
 ..Index 40) 
 
ANCIENT LAW. 
 
 CHAPTER I. 
 
 ANCIENT CODES. 
 
 The most celebrated system of jurisprudence known 
 to the -world begins, as it ends, with a Code. From 
 the commencement to the close of its history, the 
 expositors of Koman Law consistently employed lan- 
 guage which implied that the body of their system 
 rested on the Twelve Decemviral Tables, and therefore 
 on a basis of written law. Except in one particular, 
 no institutions anterior to the Twelve Tables were 
 recognised at Rome. The theoretical descent of 
 Roman jurisprudence from a code, the theoretical 
 ascription of English law to immemorial unwritten 
 tradition, were the chief reasons why the development 
 of their system differed from the development of ours. 
 
 B 
 
2 AJfCIENT CODES, chap. 1. 
 
 Neither theory corresponded exactly with the facts, 
 but each produced consequences of the utmost im- 
 portance. 
 
 I need hardly say that the publication of the 
 Twelve Tables is not the earliest point at which we 
 can take up the history of law. The ancient Roman 
 code belongs to a class of which almost every civilised 
 nation in the world can show a sample, and which, 
 so far as the Roman and Hellenic worlds were con- 
 cerned, were largely diffused over them at epochs not 
 widely distant from one another. They appeared 
 under exceedingly similar circumstances, and were 
 produced, to our knowledge, by very similar causes. 
 Unquestionably, many jural phenomena lie behind 
 these codes and preceded them in point of time. Not 
 a few documentary records exist which profess to 
 give us information concerning the early phenomena 
 of law ; but, until philology 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 a description, not wholly idealised, 
 of a state of society known to the writer. However 
 the fancy of the poet may have exaggerated certain 
 features of the heroic age, the prowess of warriors 
 and the potency of gods, there is no reason to believe 
 that it has tampered with moral or metaphysical con- 
 ceptions which were not yet the subjects of conscious 
 
CBXS. 1. EUDIMENTABY JURAL IDEAS 3 
 
 observation; and in this respect the Homeric lite- 
 rature is far more trustworthy than those relatively 
 later documents which pretend to give an account 
 of times similarly early, but which were compiled 
 under philosophical or theological influences. If by 
 any means we can detennine the early forms of jural 
 conceptions, they will be invaluable to us. These 
 rudimentary ideas are to the jurist what the primary 
 crusts of the earth are to the geologist.. They con- 
 tain, potentially, all the forms in which law has sub- 
 sequently exhibited itself. The haste or the prejudice 
 which has generally refused them all but the most 
 superficial examination, must bear the blame of the 
 unsatisfactory condition in which we find the science 
 of jurisprudence. The inquiries of the jurist are 
 in truth prosecuted much as inquiry in physics and 
 physiology was prosecuted before observation had 
 taken the place of assumption. Theories, plausible 
 and comprehensive, but absolutely unverified, such 
 as the Law of Nature or the Social Compact, enjoy 
 a universal preference over sober research into the 
 primitive history of society and law; and they 
 obscure the truth not only by diverting attention 
 from the only quarter in which it can be found, but 
 by that most real and most important influence 
 whichi when once entertained and believed in, they 
 are enabled to exercise on the later stages of juris- 
 prudence. 
 
 B2 
 
i AJTCIENT CODES. OHAP. I. 
 
 The earliest notions connected with the conception, 
 now so fully developed, of a law or rule of life, are 
 those contained in the Homeric words " Thenais " and 
 " Themistes." " Themis," it is well known, appears 
 in the later Greek pantheon as the Goddess of Justice, 
 but this is a modern and much developed idea, and 
 it is in a very different sense that Themis is de- 
 scribed in the Iliad as the assessor of Zeus. It is 
 now clearly seen by aU trustworthy observers of the 
 primitive condition of mankind that, in the infancy 
 of the race, men could only account for sustained or 
 periodically recurring action by supposing a personal 
 agent. Thus, the wind blowing- was a person and of 
 course a divine person ; the sun rising, culminating, 
 and setting was a person and a divine person ; the 
 earth yielding her increase was a person and divine. 
 As, then, in the physical world, so in the moral. 
 When a king decided a dispute by a sentence, the 
 judgment was assumed to be the result of direct 
 inspiration. The divine agent, suggesting judicial 
 awards to kings or to gods, the greatest of kings, 
 was Themis. The pecuUarity of the conception is 
 brought out by the use of the plural. Themistes, 
 Themises, the plural of Themis, are the awards them- 
 selves, divinely dictated to the judge. Kings are 
 spoken of as if they had a store of " Themistes " ready 
 to hand for use ; but it must be distinctly understood 
 that they are not laws, but judgments, or, to take the 
 
CHAP. I. THEMISTES 6 
 
 exact Teutonic equivalent, " dooms." " Zeus, or 
 the human king on earth," says Mr. Grote, in his 
 History of Greece, "is not a law-maker, but a 
 judge." He is provided with Themistes, but, con- 
 sistently with the belief in their emanation from above, 
 they cannot be supposed to be connected by any thread 
 of principle; they are separate, isolated judgments. 
 
 Even in the Homeric poems we can see that these 
 ideas are transient. ^ Parities of circumstance were 
 probably commoner in the simple mechanism of an- 
 cient society than they are now, and in the succes- 
 sion of similar cases awards are likely to follow and 
 resemble each other. Here we have the germ or 
 rudiment of a custom, a conception posterior to that 
 of Themistes or judgments. However strongly we, 
 with our modern associations, may be inclined to lay 
 down a priori that the notion of a^Custom must pre- 
 cede that of a judicial sentence, and that a judgment 
 must affirm a custom or punish its breach, it seems 
 quite certain that the historical order of the ideas 
 is that in which I have placed them. The Homeric 
 word for a custom in the embryo is sometimes 
 " Themis " in the singular — more often " Dike," the 
 meaning of which visibly fluctuates between a "judg- 
 ment " and a " custom " or " usage.' No/*o5, a Law, 
 so great and famous a teim in the political vocabulary 
 of the later Greek society, does not occur in Homer. 
 
 This notion of a divine agency, suggesting the 
 
6 AJVCIENT CODES. chap, i. 
 
 Theinistes, and itself impersonated in Themis, must 
 be kept apart from otker primitive beliefs with which 
 a superficial inquirer might confound it. The con- 
 ception of the Deity dictating an entire code or body 
 of law, as in the case of the Hindoo laws of Manu, 
 seems to belong to a range of ideas more recent and 
 more advanced. " Themis " and " Themistes " are 
 much less remotely linked with that persuasion which 
 clung so long and so tenaciously to the human mind, 
 of a divine influence underlying and supporting 
 every relation of life, every social institution. In 
 early law, and amid the rudiments of political 
 thought, symptoms of this belief meet us on all 
 sides. A supernatural presidency is supposed to 
 consecrate and keep together all the cardinal institu- 
 tions of those times, the State, the Race, and the 
 Family. Men, grouped together in the diflferent 
 relations which those institutions imply, are bound 
 to celebrate periodically common rites and to offer 
 common sacrifices ; and every now and then the 
 same duty is even more significantly recognised in 
 the purifications and expiations which they perform, 
 and which appear intended to deprecate punishment 
 for involuntary or neglectful disrespect. Everybody 
 acquainted with ordinary classical literature will 
 remember the sacra gentilicia, which exercised so 
 important an influence on the early Roman, law of 
 adoption and of wills. And to this hour the Hindoo 
 
CHAP, I. bentham's analysis. 7 
 
 Customary Law, in which some of the most curious 
 features of primitive society are stereotyped, makes 
 almost all the rights of persons and aU the rules of 
 succession hinge on the due solemnisation of fixed 
 ceremonies at the dead man's funeral, that is, at 
 every point where a breach occurs in the continuity 
 of the family. 
 
 Before we quit this stage of jurisprudence, a 
 caution may be usefully given to the English stu- 
 dent. Bentham, in his " Fragment on Government," 
 and Austin, in his " Province of Jurisprudence De- 
 termined," resolve every law into a command of 
 the lawgiver, an obligation imposed thereby on the 
 citizen, and a sanction threatened in the event of 
 disobedience ; and it is further predicated of the 
 command, which is the first element in a law, that 
 it must prescribe, not a single act, but a series or 
 number of acts of the same class or kind. The 
 results of this separation of ingredients tally exactly 
 with the facts of mature jurisprudence ; and, by a 
 little straining of language, they may be made to 
 correspond in form with all law, of all kinds, at all 
 epochs. It is not, however, asserted that the notion 
 of law entertained by the generahty is even now 
 quite in conformity with this dissection ; and it is 
 curious that, the farther we penetrate into the primi- 
 tive history of thought, the farther we find ourselves 
 from a conception of law which at all resembles a 
 
8 ANCIENT CODES. ceap. i. 
 
 compound of the elements which Bentham deter- 
 mined. It is certain that, in the infancy of man- 
 kind, no sort of legislature, nor even a distinct 
 author of law, is contemplated or conceived of. 
 Law has scarcely reached the footing of custom ; 
 it is rather a habit. It is, to use a French phrase, 
 "in the air," The only authoritative statement of 
 right and wrong is a judicial sentence after the 
 facts, not one presupposing a law which has been 
 violated, but one which is breathed for the first time 
 by a higher power into the judge's mind at the 
 moment of adjudication. It is of course extremely 
 difficult for us to realise a view so far removed 
 from us in point both of time and of association, but 
 it will become more credible when we dwell more 
 at length on the constitution of ancient society, in 
 which every man, living during the greater part of 
 his life under the patriarchal despotism, was practically 
 controlled in all his actions by a regimen not of law 
 but of caprice, I may add that an Englishman 
 should be better able than a foreigner to appreciate 
 the historical fact that the " Themistes " preceded 
 any conception of law, because, amid the many in- 
 consistent theories which prevail concerning the cha- 
 racter of English jurisprudence, the most popular, 
 or at all events the one which most ajffects practice, 
 is certainly a theory which assumes that adjudged 
 cases and precedents exist antecedently to rules, 
 
OMAe. I. CUSTOMARY LAW. 9 
 
 principles, and distinctions. The " Themistes " have 
 too, it should be remarked, the characteristic which^ 
 in the view of Bentham and Austin, distinguishes 
 single or mere commands from laws. A true law 
 enjoins on all the citizens indifferently a number 
 of acts similar in class or kind ; and this is exactly 
 the feature of a law which has most deeply impressed 
 itself on the popular mind, causing the term " law " 
 to be applied to mere uniformities, successions, and 
 similitudes. A command prescribes only a single act, 
 and it is to commands, therefore, that " Themistes " 
 are more akin than to laws. They are simply ad- 
 judications on insulated states of fact, and do not 
 necessarily follow each other in any orderly sequence. 
 The literature of the heroic age discloses to us 
 law in the germ under the " Themistes " and a little 
 more developed in the conception of " Dike." The 
 next stage which we reach in the history of juris- 
 prudence is strongly marked and surrounded by the 
 utmost interest. Mr. Grote, in the second part and 
 ninth chapter of his History, has fully described 
 the mode in which society gradually clothed itself 
 with a different character from that delineated by 
 Homer. Heroic kingship depended partly on divinely 
 given prerogative, and partly on the possession of 
 supereminent strength, courage, and wisdom. Gra- 
 dually, as the impression of the monarch's sacredness 
 became weakened, and feeble members occurred in 
 
30 ANCIENT CODES. chap. i. 
 
 the series of hereditary kings, the royal power de- 
 cayed, and at last gave way to the dominion of 
 aristocracies. If language so precise can be used of 
 the revolution, we might say that the office of the 
 king was usurped by that council of chiefs which 
 Homer repeatedly alludes to and depicts. At all 
 events from an epoch of kingly rule we come every- 
 where in Europe to an era of oligarchies ; and even 
 where the name of the monarchical functions does 
 not absolutely disappear, the authority of the king 
 is reduced to a mere shadow. He becomes a mere 
 hereditary general, as in Lacedaemon, a mere func- 
 tionary, as the King Archon at Athens, or a mere 
 formal hierophant, like the Rex Sacrijiculus at Rome. 
 In Greece, Italy, and Asia Minor, the dominant 
 orders seem to have universally consisted of a 
 number of femilies united by an assuroed relation- 
 ship in blood, and, though they all appear at first 
 to have laid claim to a quasi-sacred character, their 
 strength does not seem to have resided in their 
 pretended sanctity. Unless they were prematurely 
 overthrown by the popular party, they aU. ulti- 
 mately approached very closely to what we should 
 now understand by a political aristocracy. The 
 changes which society underwent in the commu- 
 nities of the further Asia occurred of course at 
 periods long anterior in point of time to these revo- 
 lutions of the Italian and Hellenic worlds ; but their 
 
CHAP. I. ARISTOCRATIC PERIOD. ll 
 
 relative place in civilisation appears to have been 
 the same, and they seem to have been exceedingly* 
 similar in general character. There is some evidence 
 that the races which were subsequently united under 
 the Persian monarchy, and those which 'peopled the \ 
 peninsula of India, had all their heroic age and their' 
 era of aristocracies ; but a military and a religious 
 oligarchy appear to have grown up separately, nor 
 was the authority of the king generally superseded. 
 Contrary, too, to the course of events in the West, j 
 the religious element in the East tended to get the 
 better of the miUtary and political. Military and I 
 civil aristocracies disappear, annihilated or crushed 
 into insignificance between the kings and the sacer- 
 dotal order ; and the ultimate result at which we 
 arrive is, a monarch enjoying great power, but cir- 
 cumscribed by the privileges of a caste of priests. 
 With these diflferences, however, that in the East 
 aristocracies became religious, in the West civil or 
 political, the proposition that a historical era of 
 aristocracies succeeded a historical era of heroic 
 kings may be considered as true, if not of all man- 
 kind, at all events of all branches of the Indo-Euro- 
 pean family of nations. 
 
 The important point for the jurist is that these 
 aristocracies were universally the depositaries and 
 administrators of law. They seem to have succeeded 
 to the prerogatives of the king, with the important 
 
12 ANCIENT CODES. chap. i. 
 
 difference, however, that they do not appear to have 
 pretended to direct inspiration for each sentence. 
 The connection of ideas which caused the judgments 
 of the patriarchal chieftain to be attributed to 
 superhuman dictation still shows itself here and 
 there in the claim of a divine origin for the entire 
 body of rules, or for certain parts of it, but the 
 progress of thought no longer permits the solution 
 of particular disputes to be explained by supposing 
 an extra-human interposition. What the juristical 
 oligarchy now claims is to monopolise the knowledge 
 of the laws, to have the exclusive possession of the 
 principles by which quarrels are decided. We have 
 in fact arrived at the epoch of Customary Law. 
 Customs or Observances now exist as a substantive 
 aggregate, and are assumed to be precisely known to 
 the aristocratic order or caste. Our authorities 
 leave us no doubt that the trust lodged with the 
 oligarchy was. sometimes abused, but it certainly 
 ought not to be regarded as a mere usurpation or 
 engine of tyranny. Before the invention of writing, 
 and during the infancy of the art, an aristocracy 
 invested with judicial privileges formed the only 
 expedient by which accurate preservation of the 
 customs of the race or tribe could be at aU approxi- 
 mated to. Their genuineness was, so far as possible, 
 insured by confiding them to the recollection of a 
 limited portion of the community. 
 
Ci*AP. I. CUSTOMARY LAW. IS 
 
 The epoch of Customary Law, and of its custody 
 by a privileged order, is a very remarkable one. 
 The condition of jurisprudence which it implies has 
 left traces which may still be detected in legal and 
 popular phraseology. The law, thus known exclu- 
 sively to a privileged minority, whether a caste, an 
 aristocracy, a priestly tribe, or a sacerdotal college, is 
 true unwritten law. Except this, there is no such 
 thing as unwritten law in the world. English case- 
 law is sometimes spoken of as unwritten, and there 
 are some English theorists who assure us that if a 
 code of English jurisprudence were prepared we 
 should be turning unwritten law into written — a 
 conversion, as they insist, if not of doubtful policy, 
 at all events of the greatest seriousness. Now, it is 
 quite true that there was once a period at which the 
 Enghsh common law might reasonably have been 
 termed unwritten. The elder English judges did 
 really ^pretend to knowledge of rules, principles, and 
 distinctions which were not entirely revealed to the 
 bar and to the lay-public. Whether all the law which 
 they claimed to monopolise was really unwritten, is 
 exceedingly questionable ; but at all events, on the 
 assumption that there was once a large mass of civil 
 and criminal rules known exclusively to the judges, 
 it presently ceased to be unwritten law. As soon as 
 the Courts at Westminster Hall began to base their 
 judgments on cases recorded, whether in the year- 
 
14 ANCIENT CODES. chap. i. 
 
 books or elsewhere, the law which they administered 
 became written law. At the present moment a rule 
 of English law has first to be disentangled from the 
 recorded facts of adjudged printed precedents, then 
 thrown into a form of words varying with the taste, 
 precision, and knowledge of the particular judge, and 
 then appHed to the circumstances of the case for ad- 
 judication. But at no stage of this process has it 
 any characteristic which distinguishes it from written 
 law. It is written case-law, and only diflFerent 
 from code-law because it is written in a diflFerent 
 way. 
 
 From the period of Customary Law we come to 
 another sharply defined epoch in the history of juris- 
 prudence. We arrive at the era of Codes, those 
 ancient codes of which the Twelve Tables of Rome 
 were the most famous specimen. In Greece, in Italy, 
 on the Hellenised sea-board of Western Asia, these 
 codes aU made their appearance at periods much the 
 same everywhere, not, I mean, at periods identical in 
 point of time, but similar in point of the relative 
 progress of each community. Everywhere, in the 
 countries I have named, laws engraven on tablets 
 and published to the people take the place of usages 
 deposited with the recollection of a privileged oli- 
 garchy. It must not for a moment be supposed that 
 the refined considerations now urged in favour (rf 
 what is called codification had any part or place in 
 
CHAP, I. AXOIENT CODES. 18 
 
 the change I have described. The ancient codes were 
 doubtless originally suggested by the discovery and 
 diffusion of the art of writing. It is true that the! 
 aristocracies seem to have abused their monopoly of 
 legal knowledge ; and at all events their exclusive 
 possession of the law was a formidable impediment to 
 the success of those popular movements which began 
 to be universal in the western world. But, though 
 democratic sentiment may have added to their popu- 
 larity, the codes were certainly in the main a direct 
 result of the invention of writing. Inscribed tablets 
 were seen to be a better depository of law, and a 
 better security for its accurate preservation, than the 
 memory of a number of persons however strengthened 
 by habitual exercise. 
 
 The Roman code belongs to the class of codes I 
 have been describing. Their value did not consist 
 in any approach to symmetrical classification, or to 
 terseness and clearness of expression, but in their 
 publicity, and in the knowledge which they fur- 
 nished to everybody, as to what he was to do, and 
 what not to do. It is, indeed, true that the Twelve 
 Tables of Rome do exhibit some traces of systematic 
 arrangement, but this is probably explained by the 
 tradition that the framers of that body of law 
 called in the assistance of Greeks who enjoyed the 
 later Greek experience in the art of law-making. 
 The fragments of the Attic Code of Solon show, 
 
16 ANCIENT CODES. CIUP.I. 
 
 however, that it had but little order, and probably 
 the laws of Draco had even less. Quite enough too 
 remains of these collections, both in the East and in 
 the "West, to show that they mingled up religious, 
 civU, and merely moral ordinances, without any 
 regard to differences in their essential character ; and 
 this is consistent with all we know of early thought 
 from other sources, the severance of law from mo- 
 rality, and of religion from law, belonging very 
 distinctly +0 the later stages of mental progress. 
 
 But, whatever to a modern eye are the singu- 
 larities of these codes, their importance to ancient 
 societies was unspeakable. The question — and it 
 was one which affected the whole future of each com- 
 munity — was not so much whether there should be a 
 code at all, for the majority of ancient societies seem 
 to have obtained them sooner or later, and, but for 
 the great interruption in the history of jurisprudence 
 created by feudalism, it is likely that all modern 
 law would be distinctly traceable to one or more 
 of these fountain-heads. But the point on whiob. 
 turned the history of the race was, at what period* 
 at what stage of their social progress, they should 
 have their laws put into writing. In the Western 
 world the plebeian or popular element in each State 
 successfully assailed the oligarchical monopoly, and 
 a code was nearly universally obtained early in the 
 history of the Commonwealth But, in the East, as I 
 
CHAP. I, LAWS OP MANU. 17 
 
 have before mentioned, the ruling aristocracies tended 
 to become religious rather than military or political,, 
 and gained, therefore, rather than lost in power ; 
 while in some instances the physical conformation 
 of Asiatic countries had the effect of making in- 
 dividual communities larger and more numerous 
 than in the West ; and it is a known social law that 
 the larger the space over which a particular set of 
 institutions is diffused, the greater is its tenacity 
 and vitality. From whatever cause, the codes 
 obtained by Eastern societies were obtained, re- 
 latively, much later than by Western, and wore 
 a very different character. The religious oligarchies 
 of Asia, either for their own guidance, or for the 
 relief of their memory, or for the instruction of their 
 disciples, seem in all cases to have ultimately embodied 
 their legal learning in a code ; but the opportunity of 
 increasing and consolidating their influence was pro- 
 bably too tempting to be resisted. Their complete 
 monopoly of legal knowledge appears to have enabled 
 them to put off on the world collections, not so much 
 of the rules actually observed as of the rules which 
 the priestly order considered proper to be observed. 
 The Hindoo Code, called the Laws of Manu, which 
 is certainly a Brahmin compilation, undoubtedly en- 
 shrines many genuine observances of the Hindoo race, 
 but the opinion of the best contemporary orientalists 
 is, that it does not, as a whole, represent a set of rules 
 
 c 
 
18 AKCIEXT CODES. chap. I. 
 
 ever actually administered in Hindostan. It is, in 
 great part, an ideal picture of that which, in the view 
 of the Brahmins, ought to be the law. It is consistent 
 with human nature and with the special motives of 
 their authors, that codes like that of Manu should 
 pretend to the highest antiquity and claim to have 
 emanated in their complete form from the Deity. 
 Manu, according to Hindoo mythology, is an emana- 
 tion from the supreme God ; but the compilation 
 which bears his name, though its exact date is not 
 easily discovered, is, in point of the relative progress 
 of Hindoo jurisprudence, a recent production. 
 
 Among the chief advantages which the Twelve 
 Tables and similar codes conferred on the societies 
 which obtained them, was the protection which they 
 afforded against the frauds of the privileged oligar- 
 chy and also against the spontaneous depravation 
 and debasement of the national institutions. The 
 Eoman Code was merely an enunciation in words of 
 the existing customs of the Roman people. Re- 
 latively to the progress of the Romans in civilisation, 
 it was a remarkably early code, and it was published 
 at a time when* Roman society had barely emerged 
 from that intellectual condition in which civil ob- 
 ligation and religious duty are inevitably confounded. 
 Now a barbarous society practising a body of cus- 
 toms, is exposed to some especial dangers which may 
 be absolutely fatal to its progress in civilisation. The 
 usages which a particular community is found to 
 
CHAP. I. VALUE OF THE CODES. 19 
 
 have adopted in its infancy and in its primitive seats 
 are generally those which are on the whole best 
 suited to promote its physical and moral well-being ; 
 and, if they are retained in their integrity until new 
 social wants have taught new practices, the upward 
 march of society is almost certain. But unhappily 
 there is a law of development which ever threatens 
 to operate upon unwritten usage. The customs are 
 of course obeyed by multitudes who are incapable of 
 understanding the true ground of their expediency, 
 and who are therefore left inevitably to invent su- 
 perstitious reasons for their permanence. A process 
 then commences which may be shortly described 
 by saying that usage which is reasonable generates 
 usage which is unreasonable. Analogy, the most 
 valuable of instruments in the maturity of jurispru- 
 dence, is the most dangerous of snares in its infancy. 
 Prohibitions and ordinances, originally confined, for 
 good reasons, to a siqgle description of acts, are made 
 to apply to aU acts of the same class, because a man 
 menaced with the anger of the gods for doing one 
 thing, feels a natural terror in doing any other thing 
 which is remotely like it. After one kind of food 
 has been interdicted for sanitary reasons, the prohi- 
 bition is extended to all food resembling it, though 
 the resemblance occasionally depends on analogies 
 the most fanciful. So again, a wise provision for 
 insuring general cleanliness dictates in time long 
 
 c 2 
 
20 ANCIENT CODES. chap. I. 
 
 routines of ceremonial ablution; and that division 
 into classes which at a particular crisis of social 
 history i8,'iiecessary for the maintenance of the na- 
 tional existence degenerates into the most disastrous 
 and blighting of all human institutions — Caste. The 
 fate of the Hindoo law is, in fact, the measure of the 
 value of the Roman Code. Ethnology shows us that 
 ^he Eomans and the Hindoos sprang from the same 
 original stock, and there is indeed a striking resem- 
 blance between what appear to have been their 
 original customs. Even now, Hindoo jurisprudence 
 has a substratum of forethought and sound judg- 
 ment, but irrational imitation has engrafted in it an 
 immense apparatus of cruel absurdities. From these 
 corruptions the Romans were protected by their code. 
 It was compiled while usage was stiU wholesome, and 
 a hundred years afterwards it might have been too 
 late. The Hindoo law has been to a great extent 
 embodied in writing, but, ancient as in one sense are 
 the compendia which still exist in Sanskrit, they 
 contain ample evidence that they were drawn up 
 after the mischief had been done. We are not of 
 course entitled to say that if the Twelve Tables had 
 not been published the Romans would have been con- 
 demned to a civilisation as feeble and perverted as 
 that of the Hindoos, but thus much at least is certain, 
 that with their code they were exempt from the very 
 chance of so unhappy a destiny. 
 
"OAP. n. LEGAL FICTIONS. 21 
 
 CHAPTER II. 
 
 LEGAL FICTIONS. 
 
 When primitive law has once been embodied in a 
 Code, tbere is an end to what may be called its spon- 
 taneous development. Henceforward the changes 
 effected in it, if effected at all, are effected deliberately 
 and from without. It is impossible to suppose that' 
 the customs of any race or tribe remained unaltered 
 during the whole of the long — in some instances 
 the inunense — interval between their declaration 
 by a patriarchal monarch and their publication m 
 writing. It would be unsafe too to affirm that no 
 part of the alteration was effected deliberately. But 
 from the little we know of the progress of law during 
 this period, we are justified in assuming that set 
 purpose had the very smallest share in producing 
 change. Such innovations on the earliest usages as 
 disclose themselves appear to have been dictated by 
 feelings and modes of thought which, under our present 
 mental conditions, we are unable to comprehend. A 
 new era begins, however, with the Codes. Wherever, 
 after this epoch, we trace the course of legal modifica- 
 tion, we are able to attribute it to the conscious desire 
 of improvement, or at all events of compassing objects 
 
22 LEGAL FICTIONS. oasT. u. 
 
 other than those which were aimed at in the primitive 
 times. 
 ^' It may seem at first sight that no general proposi- 
 tions worth trusting can be elicited fi-om the history 
 of legal systems subsequent to the codes. The field 
 is too vast. We cannot be sure that we have included 
 a sufficient number of phenomena in our observations, 
 or that we accurately understand those which we 
 have observed. But the undertaking will be seen 
 to be more feasible, if we consider that after the epoch 
 of codes the distinction between stationary and pro- 
 gressive societies begins to make itself felt. It is 
 only with the progressive societies that we are con- 
 cerned, and nothing is more remarkable than their 
 extreme fewness. In spite of overwhelming evidence, 
 it is most difficult for a citizen of Western Europe to 
 bring thoroughly home to himself the truth that the 
 civihsation which surrounds him is a rare exception 
 in the history of the world. The tone of thought 
 common among us, all our hopes, fears, and specula- 
 tions, would be materially afifected, if we had vividly 
 before us the relation of the progressive races to the 
 totality of human life. It is indisputable that much 
 the greatest part of mankind has never shown a 
 particle of desire that its civil institutions should be 
 improved since the moment when external complete- 
 ness was first given to them by their embodiment in 
 some permanent record. One set of usages has occa- 
 
CHAP. IT. STATIONAEY AND PKOGRESSIVE SOCIETIES. 23 
 
 sionally been violently overthrown and superseded by 
 another ; here and there a primitive code, pretending 
 to a supernatural origin, has been greatly extended, 
 and distorted into the most surprising forms, by the 
 perversity of sacerdotal commentators ; but, except 
 in a small section of the world, there has been nothing 
 like the gradual amelioration of a legal system. 
 There has been material civilisation, but, instead iif 
 the civilisation expanding^the law, the law has litn itgd 
 the civilisation. The study of races in their primi- 
 tive condition affords us some clue to the point at 
 which the development of certain societies has 
 stopped. We can see that Brahmi nical India has not 
 passed beyond a stage which occurs in the history of 
 all the families of mankind, the stage at which a rule 
 of law is not yet discriminated from a rule of reli- 
 gion. The members of such a society consider that 
 the transgression of a religious ordinance should be 
 pimished by civil penalties, and that the violation of 
 a civil duty exposes the delinquent to divine correc- 
 tion. InjCh^ia-this point has been passed, but pro- 
 gress seem to have been there arrested, because the 
 civil laws are coextensive with all the ideas of which 
 the race is capable. The difference between the 
 stationary and progressive societies is, however, one 
 of the great secrets which inquiry has yet to pene- 
 trate. Among partial explanations of it I venture to 
 T)lace the considerations urged at the end of the last 
 
24 LEGAL PIOTIONS. chap. ll. 
 
 chapter. It may further be remarked that no one is 
 likely to succeed in the investigation who does not 
 clearly realise that the stationary condition of the 
 human race is the rule, the progressive the exception- 
 And another indispensable condition of success is an 
 accurate knowledge of Roman law in all its principal 
 stages. The Roman jurisprudence has the longest 
 known history of any set of human institutions. The 
 character of all the changes which it underwent is 
 tolerably well ascertained. From its commencement 
 to its close, it was progressively modified for the 
 better, or for what the authors of the modification 
 conceived to be the better, and the course of improve- 
 ment was continued through periods at which all the 
 rest of human thought and action materially slackened 
 its pace, and repeatedly threatened to settle down 
 into stagnation. 
 
 I confine myself in what follows to the progressive 
 societies. With respect to them it may be laid down 
 that social_necessities^_and^ social^opinion are always 
 mpre.i3r4ess in jxivance of Law. We may come inde- 
 finitely near to the closing of the gap between them, 
 but it has a perpetual tendency to reopen. Law is 
 stable ; the societies we are speaking of are progres- 
 sive. The greater or less happiness of a people 
 depends on the degree of promptitude with which 
 the gulf is narrowed. 
 
 A general proposition of some value may be ad- 
 
CHAP. n. FICTIONS, . EQUITV, AND LEGISLATION. 25 
 
 vanced with respect to the agencies by which Law is 
 brought into harmony with society. These instru- 
 mentalities seem to me to be three in number, Legal 
 Fictions, Equity, and Legislation. ' Their historical 
 order is that in which I have placed them. Some- 
 times two of them will be seen operating together, 
 and there are legal systems which have escaped the 
 influence of one or other of them. But I know of no 
 instance in which the order of their appearance has 
 been changed or inverted. The early history of one 
 of them, Equity, is universally obscure, and hence 
 it may be thought by some that certain isolated 
 statutes, reformatory of the civil law, are older than 
 any equitable jurisdiction. My own belief is that 
 remedial Equity is everywhere older than remedial 
 Legislation ; but, should this be not strictly true, it 
 would only be necessary to limit the proposition 
 respecting their order of sequence to the periods at 
 which they exercised a sustained and substantial in- 
 fluence in transforming the original law. 
 
 ' I employ the word " fiction " in a sense consider- 
 ably wider than that in which English lawyers are 
 accustomed to use it, and with a meaning much more 
 extensive than that which belonged to the Eoman 
 " fictiones." Fictio, in old Roman law, is properly a 
 term of pleading, and signifies a false averment on 
 the part of the plaintiff which the defendant was not 
 allowed to traverse ; such, for example, as an aver- 
 
26 
 
 LEGAL FICTIONS. chap, n, 
 
 ment that the plaintiff was a Eoman citizen, when in 
 truth he was a foreigner. The object of these " fic- 
 tionea " was, of course, to give jurisdiction, and they 
 therefore strongly resembled the allegations in the 
 writs of the English Queen's Bench and Exchequer, 
 by which those Courts contrived to usurp the juris- 
 diction of the Common Pleas : — the allegation that 
 the defendant was in custody of the king's marshal, 
 or that the plaintiff was the king's debtor, and could 
 not pay his debt by reason of the defendant's default. 
 But now I employ the expression "Legal Fiction " to 
 signify any assumption which conceals, or affects to 
 conceal, the fact thaf a rule of law has undergone 
 alteration, its letter ^etoijjining unchanged, its opera- 
 tion being modified. The words, therefore, include 
 the instances of fictions which I have cited from the 
 English and Koman law, but they embrace much 
 more, fori should speak both of the English Case law 
 and of the Roman Responsa Prudentum as resting 
 on fictions. Both these examples wiU be examined 
 presently. The fact is in both cases that the law has 
 been wholly changed ; the fiction is that it remains 
 what it always was. It is not difficult to understand 
 why fictions in all their forms are particularly con- 
 genial to the infancy of society. They satisfy the 
 desire for improvement, which is not quite wanting, 
 at the same time that they do not offend the super- 
 stitious disrelish for change which is always present. 
 
CHAP. n. LEGAL FICTIONS. 27 
 
 At a particular stage of social progress they are 
 invaluable expedients for overcoming the rigidity ot 
 law, and, indeed, without one of them, the Fiction of 
 Adoption which permits the family tie to be artifi- 
 cially created, it is difficult to understand how society 
 would ever have escaped from its swaddling-clothes, 
 and taken its first steps towards civilisation. We 
 must, therefore, not sufl'er ourselves to be affected by 
 J;he ridicule which Bentham pours on legal fictions 
 wherever he meets them. To revile them as merely 
 fraudulent is to betray ignorance of their peculiar 
 office in the historical development of law. But at 
 the same time it would be equally foolish to agree 
 with those theorists who, discerning that fictions 
 have had their uses, argue that they ought to be 
 stereotyped in our system. There are several Fic- 
 tions still exercising powerful influence on English 
 jurisprudence which could not be discarded without 
 a severe shock to the ideas, and considerable change 
 in the language, of English practitioners ; but there 
 can be no doubt of the general truth that it is un- 
 worthy of us to efifect an admittedly beneficial object 
 by so rude a device as a. legal fiction. I cannot 
 admit any anomaly to be innocent, which makes the 
 law either more difficult to understand or harder to 
 arrange in harmonious order. Now, among other 
 v^isadvantages, legal fictions are the greatest of ob- 
 stacles to symmetrical classification. The rule of 
 
23 KQUITY. CHAP. n. 
 
 law remains sticking in the system, but it is a mere 
 shell. It has been long ago undermined, and a new- 
 rule hides itself under its cover. Hence there is at 
 once a difficulty in knowing whether the rule which 
 is actually operative should be classed in its true or 
 in its apparent place, and minds of different casts wiU 
 differ as to the branch of the alternative which ought 
 
 vto be selected. If the English law is ever to assume 
 an orderly distribution, it will be necessary to prune 
 away the legal fictions which, in spite of some recent 
 legislative improvements, are still abundant in it. 
 
 The next instrumentality by which the adaptation 
 of law to social wants is carried on I call Equity, ' 
 
 j_meaning by that word any body of rules existing by 
 the side of the original civil law, founded on distinct 
 principles and claiming incidentally to supersede the 
 civil law in virtue of a superior sanctity inherent in 
 those pi-inciples. The Equity whether of the Roman 
 Praetors or of the English Chancellors, differ s from 
 the Fictions which in each case preceded it, in that 
 
 \the interference with law is open and avowed. ' On 
 the other hand, it differs from Legislation, the agent 
 of legal improvement which comes after it, in that 
 
 ^ts claim to authority is grounded, not on the pre- 
 rogative of any external person or body, not even on 
 that of the magistrate who enunciates it, but on the 
 special nature of its principles, to which it is alleged 
 that all law ought to conform. The very conception 
 
CHAP. II. LEGISLATION. 29 
 
 of a set of principles, invested with a higher sacred- 
 ness than those of the original law and demanding , 
 application independently of the consent of any ex- 
 ternal body, belongs to a much more advanced stage 
 of thought than that to which legal fictions originally 
 euggested themselves. <J) 
 
 Legislation, the enactments of a legislature which, 
 whether it take the form of an autocratic prince or 
 of a parliamentary assembly, is the assumed organ of 
 the entire society, is the last of the ameliorating in- 
 strumentalities. It differs from Legal Fictions just 
 as Equity differs fi:om them, and it is also distinguished 
 \from Equity, as deriving its authority from an external 
 body or pei son. Its obUgatoiy force is independent 
 of its principles. The legislature, whatever be the 
 actual restraints imposed on it by public opinion, is 
 in theory empowered to impose what obligations it 
 pleases on the members of the community. There is 
 nothing to prevent its legislating in the wantonness 
 of caprice. Legislation may be dictated by equity, if 
 that last word be used to indicate some standard of 
 right and wrong to which its enactments happen to 
 be adjusted ; but then these enactments are indebted 
 for their binding force to the authority of the legis- 
 lature and not to that of the principles on which the 
 legislature acted ; and thus they differ from rules of 
 Equity, in the technical sense of the word, which 
 pretend to a paramount sacredness entitluig them at 
 
80 LEGAL FICTIONS. ouAi. n. 
 
 once to the recognition of the courts even without 
 the concurrence of prince or parliamentary assembly. 
 It is the more necessary to note these diflferences, 
 because a student of Bentham would be apt to con- 
 found Fictions, Equity, and Statute Law under the 
 single head of Legislation. They all, he would say, 
 involve law-making ; they differ only in respect of 
 the machinery by which the new law is produced. 
 That is perfectly true, and we must never forget it ; 
 but it furnishes no reason why we should deprive 
 ourselves of so convenient a term as Legislation in the 
 special sense. Legislation and Equity are disjoined 
 in the popular mind and in the minds of most law- 
 yers ; and it will never do to neglect the distinction 
 between them, however conventional, when important 
 practical consequences foUow from it. 
 
 It would be easy to select from almost any regu- 
 larly developed body of rules examples oi legal fictions^ 
 which at once betray their ^true charact^i^ to the 
 modem observer. In the two instances which I 
 proceed to consider, the nature of the expedient em- 
 ployed is not so readily detected;' The first authors 
 of these fictions did not perhaps intend to innovate, 
 certainly did not wish to be suspected of innovating. 
 There are, moreover, and always have been, persons 
 who refuse to see any 'fiction in the process, and 
 conventional language bears out their refusal. No 
 examples, therefore, can be better calculated to illus- 
 
CHAP. n. CASE-hAW. 81 
 
 trate the wide diflfusion of legal fictions, and the effi- 
 ciency with which tney perform their twofold office , 
 of transforming a system of laws and of concealing 
 the transformation. 
 
 We in England are well accustomed to the exten- 
 sion, modification, and improvement of law by a 
 machinery which, in theory, is incapable of altering 
 one jot or one line of existing jurisprudence. The 
 process by which this virtual legislation is effected is 
 not so much insensible as unacknowledged. With 
 respect to that great portion of our legal system 
 which is enshrined in cases and recorded in law 
 reports, we habitually employ a double language, and 
 entertain, as it would appear, a double and incon- 
 sistent set of ideas. When a group of facts comes 
 before an English Court for adjudication, the whole 
 course of the discussion between the judge and the 
 advocates assumes that no question is, or can be, 
 raised which wiU call for the application of any 
 principles but old ones, or of any distinctions but 
 such as have long since been allowed. It is taken 
 absolutely for granted that there is somewhere a rule 
 of known law which will cover the facts of the 
 dispute now litigated, and that, if such a rule be not 
 ■ discovered, it is only that the necessary patience, 
 knowledge, or acumen is not forthcoming to detect it. 
 Yet the moment the judgment had been rendered 
 and reported, we slide unconsciously or unavowedly 
 
32 LEGAL FICTIONS. chap. n. 
 
 into a new language and a new train of thought. 
 We now admit that the new decision has modified 
 the law. The rules applicable have, to use the very- 
 inaccurate expression sometimes employed, become 
 more elastic. In fact they have been changed. A 
 clear addition has been made to the precedents, and 
 the canon of law elicited by comparing the prece- 
 dents is not the same with that which would have 
 been obtained if the series of cases had been curtailed 
 by a single example. The fact that the old rule has 
 been repealed, and that a new one has replaced it, 
 eludes us, because we are not in the habit of throwing 
 into precise language the legal formulas which we 
 derive from the precedents, so that a change in their 
 tenor is not easily detected unless it is violent and 
 glaring. I shall not now pause to consider at length 
 the causes which have led English lawyers to ac- 
 quiesce in these curious anomalies. Probably it will 
 be found that originally it was the received doctrine 
 that somewhere, in nubibus or ingremio magistratuum, 
 there existed a complete, coherent, symmetrical body 
 of English law, of an amplitude sufiicient to furnish 
 principles which would apply to any conceivable 
 combination of circumstances. The theory was at 
 first much more thoroughly believed in than it is 
 now, and indeed it may have had a better founda- 
 tion. The judges of the thirteenth century may 
 have really had at their command a mine of law 
 
CHAP. n. ANSWERS OP THE LEARNED. 33 
 
 unrevealed to the bar and to the lay-public, for 
 there is some reason for suspecting that in secret ' 
 they borrowed freely, though not always wisely, from 
 current compendia of the Roman and Canon laws. 
 But that storehouse was closed as soon as the points 
 decided at Westminster Hall became numerous 
 enough to supply a basis for a substantive system of 
 jurisprudence ; and now for centuries English prac- 
 titioners have so expressed themselves as to convey 
 the paradoxical proposition that, except by Equity 
 and Statute law, nothing has been added to the basis 
 since it was first constituted. We do not admit that 
 our tribunals legislate ; we imply that they have 
 never legislated ; and yet we maintain that the rules 
 of the English common law, with some assistance 
 from the Court of Chancery and from Parliament, 
 are coextensive with the complicated interests of 
 modem society. 
 
 A body of law bearing a very close and very in- 
 structive resemblance to our case-law in those par- 
 ticulars which I have noticed, was known to the 
 Romans under the name of the Responsa Prudentum, 
 the " answers of the learned in the law." The form 
 of these Responses varied a good deal at diflferent pe- 
 riods of the Roman jurisprudence, but throughout its 
 whole course they consisted of explanatory glosses on 
 authoritative written documents, and at first they 
 were exclusively collections of opinions interpretative 
 
 D 
 
34 
 
 LEGAL FICTIONS. <'=*^- °- 
 
 of the Twelve Tables. As with us, all legal language 
 adjusted itself to the assumption that the text of the 
 old Code remained unchanged. There was the ex- 
 press rule. It overrode all glosses and comments, 
 and no one openly admitted that any interpretation 
 of it, however eminent the interpreter, was safe from 
 revision on appeal to the venerable texts. Yet in 
 point of fact. Books of Responses bearing the names of 
 leading jurisconsults obtained an authority at least 
 equal to that of our reported cases, and constantly 
 modified, extended, limited, or practically overruled 
 the provisions of the Decemviral law. The authors 
 of the new jurisprudence during the whole progress 
 of its formation professed the most sedulous respect 
 for the letter of the Code. They were merely 
 explaining it, deciphering it, bringing out its full 
 meaning ; but then, in the result, by piecing texts 
 together, by adjusting the law to states of fact which 
 actually presented themselves and by speculating on 
 its possible appUcation to others which might occur, 
 by introducing principles of interpretation derived 
 from the exegesis of other written documents which 
 fell under their observation, they educed a vast 
 variety of canons which had never been dreamed of 
 by the compilers of the Twelve Tables and which 
 were in truth rarely or never to be found there. All 
 these treatises of the jurisconsults claimed respect on 
 the ground of their assumed conformity with the 
 Code, but their comparative authority depended on 
 
CHAP, II. ANSWERS OF THE LEAKNED. m 
 
 the reputation of the particular jurisconsults who 
 ga^e them to the world. Any name of univer- 
 sally acknowledged greatness clothed a Book of 
 Responses with a binding force hardly less than that 
 which belonged to enactments of the legislature ; 
 and such a book in its turn constituted a new foun- 
 dation on which a further body of jurisprudence 
 might rest. The responses of the early lawyers were 
 not however published, in the modern sense, by 
 their author. They were recorded and edited by 
 his pupils, and were not therefore in all probability 
 arranged according to any scheme of classification. 
 The part of the students in these publications must 
 be carefully noted, because the service they rendered 
 to their teacher seems to have been generally repaid 
 by his sedulous attention to the pupils' education. 
 The educational treatises called Institutes or Com- 
 mentaries, which are a later fruit of the duty then 
 recognised, are among the most remarkable features 
 of the Roman system. It was apparently in these 
 Institutional works, and not in the books intended 
 for trained lawyers, that the jurisconsults gave to the 
 public their classifications and their proposals for 
 modifying and improving the technical phraseology. 
 
 In comparing the Roman Responsa Prudentum 
 with their nearest English counterpart, it must be 
 carefully borne in mind that the authority by which 
 this part of the Roman jurisprudence was expounded 
 
 D2 
 
38 LEGAL PICTIONS. chai. n. 
 
 ^was not the bench, but the bar. The decision of a 
 Roman tribunal, though conclusive in the particular 
 case, had no ulterior authority except such as was 
 given by the professional repute of the magistrate 
 who happened to be in office for the time. Properly 
 speaking, there was no institution at Rome during 
 the republic analogous to the English Bench, the 
 Chambers of Imperial Germany, or the Parliaments 
 of Monarchical France. There were magistrates 
 indeed, invested with momentous judicial functions 
 in their several departments, but the tenure of the 
 magistracies was but for a single year, so that they 
 are much less aptly compared to a permanent judica- 
 ture than to a cycle of offices briskly circulating among 
 the leaders of the bar. Much might be said on the 
 origia of a condition of things which looks to us like 
 a startling anomaly, but which was in feet much more 
 congenial than our own system to the spirit of an- 
 cient societies, tending, as they always did, to split 
 into distinct orders which, however exclusive them- 
 selves, tolerated no professional hierarchy above them. 
 It is remarkable that this system did not produce 
 certain effects which might on the whole have been 
 expected from it. It did not, for example, popularise 
 the Roman law, — ^it did not, as in some of the Greek 
 republics, lessen the effort of intellect required for the 
 mastery of the science, although its diffusion and 
 authoritative exposition were opposed by no artificial 
 
CHAP. n. AJNSWEKS OF THE LEARNED. 37 
 
 barriers. On the contrary, if it had not been for the 
 operation of a separate set of causes, there were 
 strong probabilities that the Roman jurisprudence 
 would have become as minute, technical, and difficult 
 as any system which has since prevailed. Again, a 
 consequence which might still more naturally have 
 been looked for, does not appear at any time to have 
 exhibited itself. The jurisconsults, until the liberties 
 of Rome were overthrown, formed a class which was 
 quite undefined and must have fluctuated greatly in 
 numbers ; nevertheless, there does not seem to have 
 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 which abound in 
 Latin literature — the chents from the country flock- 
 ing to his antechamber in the early morning, and the 
 students standing round with their note-books to 
 record the great lawyer's replies — are seldom or never 
 identified at any given period with more than one 
 or two conspicuous names. Owing too to the direct 
 contact of the client and the advocate, the Roman 
 people itself seems to have been always alive to the 
 rise and fall of professional reputation, and there is 
 abundance of proof, more particularly in the weU- 
 known oration of Cicero, "Pro Mureena," that the 
 reverence of the commons for forensic success was 
 apt to be excessive rather than deficient. 
 
38 LEGAL FICTIONS. chap, n. 
 
 We cannot doubt that the peculiarities which have 
 been noted in the instrumentality by which the deve- 
 lopment of the Roman law was first effected, were 
 the source of its characteristic excellence, its early 
 wealth in principles. The growth and exuberance of 
 principle was fostered, in part, by the competition 
 among the expositors of the law, an influence wholly 
 unknown where there exists a Bench, the depositaries 
 intrusted by king or commonwealth with the prero- 
 gative of justice. But the chief agency, no doubt, 
 was the uncontrolled multiplication of cases for legal 
 decision. The state of facts which caused genuine 
 perplexity to a country client was not a whit more 
 entitled to form the basis of the jurisconsult's Re- 
 sponse, or legal decision, than a set of hypothetical 
 circumstances propounded by an ingenious pupU. 
 All combinations of fact were on precisely the same 
 footing, whether they were real or imaginary. It 
 was nothing to the jurisconsult that his opinion was 
 overruled for the moment by the magistrate who ad- 
 judicated on his client's case, unless that magistrate 
 happened to rank above him in legal knowledge or 
 the esteem of his profession. I do not, indeed, mean 
 it to be inferred that he would wholly omit to con- 
 sider his client's advantage, for the client was in 
 earlier times the great lawyer's constituent and at a 
 later period his paymaster, but the main road to the 
 rewards of ambition lay through the good opinion of 
 
OJUP. n. ANSWERS OF THE LBAENED. 30 
 
 his order, and it, is obvious that under such a system 
 as I have been describing this was much more hkely » 
 to be secured by viewing each case as an Ulustratibn 
 of a great principle, or an exemplification of a broad 
 rule, than by merely shaping it for an insulated 
 forensic triumph. It is evident that powerful in- 
 fluence must have been exercised by the want of any 
 distinct check on the suggestion or invention of pos- 
 sible questions. Where the data can be multipHed 
 at pleasure, the facilities for evolving a general rule 
 are immensely increased. As the law is adminis- 
 tered among ourselves, the judge cannot travel out 
 of the sets of facts exhibited before him or before 
 his predecessors. Accordingly each group of circum- 
 stances which is adjudicated upon receives, to employ 
 a Gallicism, a sort of consecration. It acquires cer- 
 tain qualities which distinguish it from every other 
 case genuine or hypothetical. But at Eome, as I 
 have attempted to explain, there was nothing re- 
 sembling a Bench or Chamber of judges ; and there- 
 fore no combination of facts possessed any particular 
 value more than another. When a difficulty came 
 for opinion before the jurisconsult, there was nothing 
 to prevent a person endowed with a nice perception 
 of analogy from at once proceeding to adduce and 
 consider an entire class of supposed questions with 
 which a particular feature connected it. Whatever 
 were the practical advice given to the client, the 
 
40 LEGAL FICTIONS. chap. n. 
 
 responsum treasured up in the note-books of listen- 
 ing pupils would doubtless contemplate the circum- 
 stances as governed by a great principle, or included 
 in a sweeping rule. Nothing like this has ever been 
 possible among ourselves, and it should be acknow- 
 ledged that in many criticisms passed on the English 
 law the manner in which it has been enunciated 
 seems to have been lost sight of. The hesitation of 
 our courts in declaring principMP may be much more 
 reasonably attributed to the comparative scantiness 
 of our precedents, voluminous as they appear to him 
 who is acquainted with no other system, than to the 
 temper of our judges. It is true that in the wealth 
 of legal principle we are considerably poorer than 
 several modern European nations. But they, it must 
 be remembered, took the Eoman jurisprudence for 
 the foundation of their civil institutions. They 
 built the dibris of the Roman law into their walls ; 
 but in the materials and workmanship of the residue 
 there is not much which distinguishes it favourably 
 from the structure erected by the English judicature. 
 "T The period of Roman freedom was the period during 
 which the stamp of a distinctive character was im- 
 pressed on the Roman jurisprudence ; and through 
 all the earlier part of it, it was by the Responses of 
 the jurisconsults that the development of the law was 
 mainly carried on. But as we approach the fall of 
 the republic there are signs that the Responses are 
 
OHJu. II. LATER JCRISCONSULTS. 41 
 
 assuming a form which must have been fatal to their 
 farther expansion. They are becoming systematised » 
 and reduced into compendia. Q. Mucins Scaevola, the 
 Pontifex, is said to have published a manual of the 
 entire Civil Law, and there are traces in the writings 
 of Cicero of growing disrelish for the old methods, as 
 compared with tl\p more active instruments of legal 
 innovation. Other agencies had in fact by this time 
 been brought to l^r on the law. The Edict, or 
 annual proclamation of the Praetor, had risen into 
 credit as the principal engine of law reform, and 
 L. Cornelius Sylla, by causing to be enacted the 
 great group of statutes called the Leges Cornelice, had 
 shown what.i'apid and speedy improvements can be 
 effected by direct legislation. The final blow to the 
 Responses was dealt by Augustus, who limited to a 
 few leading jurisconsults the right of giving binding 
 opinions on cases submitted to them, a change which, 
 though it brings us nearer the ideas of the modern 
 world, must obviously have altered fundamentally 
 the characteristics of the legal profession and the 
 nature of its influence on Roman law. At a later 
 period another school of jurisconsults arose, the great 
 lights of jurisprudence for all time. But Ulpian 
 and Paulus, Gains and Papinian, were not authors 
 of Responses. Their works were regular treatises on 
 particular departments of the law, more especially on 
 the Praetor's Edict. 
 
42 LEGAL FICTIONS. chap. n. 
 
 The Equity of the Eomans and the Praetorian Edict 
 by which it was worked into their system, will be 
 considered in the next chapter. Of the Statute Law 
 
 \it is only necessary to say that it was scanty during 
 the republic, but became very voluminous under the 
 empire. In the youth and infancy of a nation it is a 
 rare thing for the legislature to be called into action 
 for the general reform of private law. The cry of 
 the people is not for change ii#the laws, which are 
 usually valued above their real worth, but solely for 
 their pure, complete, and easy administration ; and 
 recourse to the legislative body is generally directed 
 to the removal of some great abuse, or the decision of 
 some incurable quarrel between classes or dynasties. 
 There seems in the minds of the Komans to have 
 been some association between the enactment of a 
 large body of statutes and the settlement of society 
 after a great civil commotion. SyUa signalised his 
 reconstitution of the republic by the Leges Comeliae ; 
 Julius Cassar contemplated vast additions to the 
 Statute Law ; Augustus caused to be passed the all- 
 important group of Leges Juliae ; and among later 
 emperors the most active promulgators of constitu- 
 tions are princes who, like Constantine, have the 
 
 ^concerns of the world to readjust. The true period 
 of Eoman Statute Law does not begin till the esta- 
 blishment of the empire. The enactments of the 
 emperors, clothed at first in the pretence of popular 
 
CHAP. n. ROMAN STATUTES. 43 
 
 sanction, but afterwards emanating undisguisedly 
 from the imperial prerogative, extend in increasing, 
 massiveness from the consolidation of Augustus's 
 power to the publication of the Code of Justinian. 
 It will be seen that even in the reign of the second 
 emperor a considerable approximation is made to that 
 condition of the law and that mode of administering 
 it with which we are all familiar. A statute law 
 and a limited board of expositors have arisen into 
 being ; a permanent court of appeal and a collection 
 of approved commentaries will very shortly be added ; 
 and thus we are brought close on the ideas of our 
 own day. 
 
44 EQUITY. OHAP. nr. 
 
 CHAPTER III. 
 
 LAW OF NATURE AND EQUITY, 
 
 ^ The theory of a set of legal principles entitled by 
 their intrinsic superiority to supersede the older law, 
 very early obtained currency both) in the Roman 
 StatexJand in England. Such a body of principles, 
 existing in any system, has in the foregoing chapters 
 been denominated Equity, a term which, as will pre- 
 sently be seen, was one (though only one) of the 
 designations by which this agent of legal change was 
 known to the Roman jurisconsults. The jurispru- 
 dence of the Court of Chancery, which bears the 
 name of Equity in England, could only be adequately 
 discussed in a separate treatise.* It is extremely 
 complex in its texture, and derives its materials from 
 several heterogeneous sources. The early ecclesias- 
 tical chancellors contributed to it, from the Canon 
 Law, many of the principles which lie deepest in its 
 structure. The Roman law, more fertile than the 
 Canon Law in rules applicable to secular disputes, 
 was not seldom resorted to by a later generation, of 
 Chancery judges, amid whose recorded dicta we 
 often find entire texts from the Corpus Juris Civilis 
 
OHAF. III. EQUITY. 48 
 
 imbedded, with their terms unaltered, though their 
 origin is never acknowledged. Still more recently, and * 
 particularly at the middle and during the latter half of 
 the eighteenth century, the mixed systems of juris- 
 prudence and morals constructed by the publicists of 
 the Low Countries appear to have been much studied 
 by English lawyers, and from the chancellorship of 
 Lord Talbot to the commencement of Lord Eldon's 
 chancellorship these works had considerable effect on 
 the rulings of the Court of Chancery. The system, 
 which obtained its ingredients from these various 
 quarters, was greatly controlled in its growth by the 
 necessity imposed on it of conforming itself to the 
 analogies of the common law, but it has always an- 
 
 f swered the description of a body of comparatively ' 
 novel legal principles claiming to override the older 
 jurisprudence of the country on the strength of an 
 intrinsic ethical superiority_. 
 
 The Equity of Rome was a much simpler structure, 
 
 ■ and its development from its first appearance can 
 be much more easily traced. Both its character and 
 its history deserve attentive examination. It is the 
 root of several conceptions which have exercised 
 profound influence on human thought, and through 
 human thought have seriously affected the destinies 
 of mankind. 
 
 The Romans described their legal system as con- 
 sisting of two ingredients " All nations," says the 
 
46 LAW OF NATIONS AND OF NATUKE. chap. m. 
 
 Institutional Treatise published under the authority of 
 the Emperor Justinian, " who are ruled by laws and 
 customs, are governed partly by their own particular 
 laws, and partly by those laws which are common to 
 all mankind. The law which a people enacts is called 
 the Civil Law of that people, but that which natural 
 reason appoints for all mankind is called the Law of 
 Nations, because aU nations use it." The part of the 
 
 » law " which natural reason appoints for all mankind " 
 was the element which the Edict of the Prajtor was 
 supposed to have worked into Roman jurisprudence. 
 J Elsewhere it is styled more simply Jus Naturale, or 
 the Law of Nature ; and its ordinances are said to 
 be dictated by Natural Equity {naturalis cequitas) 
 as well as by natural reason, v I shall attempt to 
 discover the origin of these famous phrases. Law of 
 Nations, Law of Nature, Equity, and to determine 
 
 ,^- how the conceptions which they indicate are related 
 to one another. 
 
 The most superficial student of Roman history 
 must be struck by the extraordinary degree in which 
 the fortunes of the republic were aflFected by the 
 presence of foreigners, under different names, on her 
 soil. The causes of this immigration are discernible 
 enough at a later period, for we can readily under- 
 stand why men of all races should flock to the mistress 
 of the world; but the same phenomenon of a large 
 population of foreigners and denizens meets us in 
 
OHAr. m. LAW OF NATIONS AND OF NATUEK. 47 
 
 the very earliest records of the Roman State. No 
 doubt, the instability of society in ancient Italy, 
 composed as it was in great measure of robber tribes, 
 gave men considerable inducement to locate them- 
 selves in the territory of any community strong 
 enough to protect itself and them from external 
 attack, even though protection should be purchased at 
 the cost of heavy taxation, political disfranchisement, 
 and much social humiliation. It is probable, however, 
 that this explanation is imperfect, and that it could 
 only be completed by taking into account those active 
 commercial relations which, though they are little 
 reflected in the military traditions of the republic, 
 Eome appears certainly to have had with Carthage 
 and with the interior of Italy in pre-historic times. 
 Whatever were the circumstances to which it was 
 V attributable, the foreign element in the commonwealth 
 determined the whole course of its history, which, 
 at aU its stages, is little more than a narrative of 
 conflicts between a stubborn nationality and an alien 
 population. Nothing Hke this has been seen in 
 modem times ; on the one hand, because modem 
 European communities have seldom or never received 
 any accession of foreign immigrants which was large 
 enough to make itself felt by the bulk of the native 
 citizens, and on the other, because modern states, 
 being held together by allegiance to a king or political 
 superior, absorb considerable bodies of immigrant 
 
48 LAW OF NATIONS AND OF NATURE. chap, in, 
 
 Gettlers with, a quickness unknown to the ancient 
 world, where the original citizens of a commonwealth 
 always believed themselves to be united by kinship in 
 blood, and resented a claim to equality of privilege 
 as a usurpation of their birthright. In the early 
 Roman republic the principle of the absolute ex- 
 clusion of foreigners pervaded the Civil Law no less 
 than the constitution. The alien or denizen could 
 have no share in any institution supposed to be coeval 
 with the State. He could not have the benefit of 
 Quiritarian law. He "could not be a party to the 
 nexum which was at' Once the conveyance and the 
 contract of the primitive Romans. He could not sue 
 by the Sacramental Action, a mode of litigation of 
 which the origin mounts up to the very infancy of 
 civilisation. Still, neither the interest nor the security 
 of Rome permitted him to be quite outlawed. All 
 ancient communities ran the risk of being overthrown 
 by a very slight disturbance of equilibrium, and the 
 mere instinct of self-preservation would force the 
 Romans to devise some method of adjusting the rights 
 and duties of foreigners, who might otherwise — and 
 this was a danger of real importance in the ancient 
 world — ^have decided their controversies by armed 
 strife. Moreover, at no period of Roman history 
 was foreign trade entirely neglected. x^It was there- 
 tofore probably half as a measure of police and half in 
 furtherance of commerce that jurisdiction was first 
 
CHAP. m. LAW OF NATIONS. 49 
 
 assumed in disputes to which the parties were either 
 foreigners or a native and a foreigner. The assump- 
 tion of such a jurisdiction brought with, it the 
 immediate necessity of discovering some principles 
 on which the questions to be adjudicated upon coidd 
 be settled, and the principles applied to this object 
 by the Roman lawyers were eminently characteristia 
 of the time. They refused, "as I have said before,^ to 
 \decide the new cases by pure Roman Civil Law." 
 They refused, no doubt because it seemed to involve 
 some kind of degradation, to apply the law of the par- 
 ticular State from which the foreign litigant came. 
 The expedient to which they resorted was that of se- 
 lecting the rules of law common to Rome and to the 
 different Italian communities in which the immigrants 
 were bom>/In other words, they set themselves to form 
 a system answering to the primitive and literal meaning 
 of Jus Gentium, that is, Law common to all Nations. 
 Jus Gentium was, in fact, the sum of the common 
 ingredients in the customs of the old Italian tribes, 
 for they were all the nations whom the Romans had 
 the means of observing, /and who sent successive 
 swarms of immigrants to Roman soil. • Whenever a 
 particular usage was seen to be practised by a large 
 number of separate races in common, it was set down 
 as part of the Law common to all Nations, or Jus 
 Gentium. Thus, although the conveyance of property 
 was certainly accompanied by very different forms in 
 
60 LAW OF IfATIONS. chap. ni. 
 
 the different commonwealths surrounding Rome, the 
 actual transfer, tradition, or delivery of the article 
 intended to be conveyed was a part of the ceremonial 
 in all of them. It was, for instance, a part, though 
 a subordinate part, in the Mancipation or conveyance 
 peculiar to Rome. Tradition, therefore, being in all 
 probability the only common ingredient in the modes 
 of conveyance which the jurisconsults had the means 
 of observing, was set down as an institution Juris 
 Gentium, or rule of the Law common to all Nations. 
 A vast number of other observances were scrutinised 
 with the same result. Some common characteristic 
 was discovered in all of them, which had a common 
 object, and this characteristic was classed in the Jus 
 V Gentium. (The Jus Gentium was accordingly a col- 
 lection of rules and principles, determined by ob- 
 servation to be common to the institutions which 
 prevailed among the various Italian tribes./ 
 
 The circumstances of the origin of the Jus Gentium 
 are probably a sufficient safeguard against the mis- 
 take of supposing that the Roman lawyers had 
 any special respect for it. It was the fruit in part 
 of their disdain for all foreign law, and in part of 
 their disinclination to give the foreigner the advan- 
 tage of their own indigenous Jus Civile. It is true 
 that we, at the present day, should probably take a 
 very different view of the Jus Gentium, if we were 
 performing the operation which was effected by the 
 
CHAP. m. LAW OF NATIONS. 6i 
 
 Roman jurisconsults. We should attach some vague 
 superiority or precedence to the element which we 
 had thus discerned underlying and pervading so 
 great a variety of usage. We should have a sort of 
 respect for rules and principles so universal. Per- 
 haps we should speak of the common ingredient as 
 being of the essence of the transaction into which it 
 entered, and should stigmatise the remaining appa- 
 ratus of ceremonyj-^whieK' varied in different com- 
 munities, as adventitious and accidental. Or it may 
 be, we should infer that the races which we were 
 comparing once obeyed a great system of common 
 institutions of which the Jus Gentium was the repro- 
 duction, and that the complicated usages of separate 
 commonwealths were only corruptions and depra- 
 vations of the simpler ordinances which had once 
 regulated their primitive state. But the results 
 to which modem ideas conduct the observer are, 
 as nearly as possible, the reverse of those which 
 were instinctively brought home to the primitive 
 Roman. What we respect or admire, he disliked 
 or regarded with jealous dread. The parts of 
 jurisprudence which he looked upon with affection 
 were exactly those which a modem theorist leaves 
 out of consideration as accidental and transitory; 
 the solemn gestures of the mancipation; the nicely 
 adjusted questions and answers of the verbal 
 contract; the endless formalities of pleading and 
 
 £2 
 
63 LAW OF NATUEE. chap. m. 
 
 procedure. The Jus Gentium was merely a system, 
 forced on his attention by a political necessity. He 
 loved it as little as he loved the foreigners from 
 whose institutions it was derived and for whose 
 benefit it was intended. A complete revolution in 
 his ideas was required before it could challenge his 
 respect, but so complete was it when it did occur, 
 that the true reason why our modern estimate of the 
 Jus Gentium differs from that which has just been 
 described, is that both modem jurisprudence and 
 modern philosophy have inherited the matured views 
 of the later jurisconsults on this subject. There did 
 
 \_come a time when, from an ignoble appendage of the 
 Jus Civile, the Jus Gentium came to be considered 
 a great though as yet imperfectly developed model 
 to which all law ought as far as possible to conform. 
 This crisis arrived when the Greek theory of a Law of 
 Nature was applied to the practical Eoman adminis- 
 tration of the Law common to all Nations. 
 
 ' ^The Jus Naturale, or Law of Nature, is simply the 
 Jus Gentium or Law of Nations seen in the light of 
 a peculiar theory^ An unfortunate attempt to dis- 
 
 _ criminate them was made by the jurisconsult Ulpian, 
 with the propensity to distinguish characteristic of a 
 lawyer, but the language of Gaius; a much higher 
 authority, and the passage quoted before from the 
 Institutes, leave no room for doubt, that the expres- 
 sions were practically convertible. The difference be- 
 
CHAP. ni. NATURE. 53 
 
 tween them was entirely historical, and no distinction 
 LQ essence could ever be established between them. * 
 It is almost unnecessary to add that the confusion 
 between Jus Gentium, or Law common to aU Nations, 
 and international law is entirely modem. The classi- 
 cal expression for international law is Jus Feciale, or 
 the law of negotiation and diplomacy. It is, however, 
 unquestionable that indistinct impressions as to the 
 meaning of Jus Gentium had considerable share 
 in producing the modern theory that the relations 
 
 y of independent states are governed by the Law of 
 miture. 
 
 It becomes necessary to investigate the Greek 
 conceptions of Nature and her law. The word ^va-i'i 
 which was rendered in the Latin natura and our 
 nature, denoted beyond all doubt originally the 
 material universe, but it was the material universe 
 contemplated under an aspect, which — such is our 
 intellectual distance from those times — it is not very 
 
 • easy to delineate in modern language. Nature sig- 
 nified the, physical world regarded as the result of 
 some primordial element or law. The oldest Greek 
 philosophers had been accustomed to explain the 
 fabric of creation as the manifestation of some single 
 principle which they variously asserted to be move- 
 ment, fire, moisture, or generation. In its simplest 
 and most ancient sense, Nature is precisely the 
 physical universe looked upon in this way as the 
 
 
54 NATURE. chap. m. 
 
 manifestation of a principle. ^^ Afterwards, the later 
 Greek sects,~^ returning to a path from which the 
 greatest intellects of Greece had meanwhile strayed, 
 added the moral to the physical world in the con- 
 ception of Nature. They extended the term tiU it 
 embraced not merely the visible creation, but the 
 thoughts, observances, and aspirations of mankind... 
 Still, as before, it was not solely the moral phe- 
 nomena of human society which they understood by 
 Nature, but these phenomena considered as resolv- 
 able into some general and simple laws. -^ 
 
 Now, just as the oldest Greek theorists supposed 
 that the sports of chance had changed the material 
 universe from its simple primitive form into its 
 present heterogeneous condition, so their intellectual 
 descendants imagined that but for untoward acci- 
 dent the human race would have conformed itself 
 to simpler rules of conduct and a less tempestuous 
 life. x\To live according to nature came to be con- 
 adered as the end for which man was created,,yand 
 which the best men were bound to compass. To 
 live according to nature was to rise above the dis- 
 orderly habits and gross indulgences of the vulgar 
 to higher laws of action which nothing butJ self- 
 denial and self-command would enable the aspirant 
 to observe.^ It is notorious that this proposition — 
 live according to nature — was the sum of the tenets 
 of the famous Stoic philosophy. Now on the subju- 
 
CHAP. m. THE STOICS. 55 
 
 gation of Greece that philosophy made instantaneous 
 progress in Roman society. It possessed natural 
 fascinations for the powerful class who, ia theory at 
 least, adhered to the simple habits of the ancient 
 Italian race, and disdained to surrender themselves 
 to the iimovations of foreign fashions. Such persons 
 began immediately to aflfect the Stoic precepts of 
 life according to nature — an affectation all the more 
 gratefiil, and, I may add, all the more noble, from its 
 contrast with the unbounded profligacy which was 
 being diffused through the imperial city by the 
 pillage of the world and by the example of its most 
 luxurious races. In the front of the disciples of the 
 new Greek school, we might be sure, even if we did 
 not know it historically, that the Roman lawyers 
 figured. "We have abundant proof that, there being 
 substantially but two professions in the Roman re- 
 public, the military men were generally identified 
 with the party of movement, but the lawyers were 
 universally at the head of the party of resistance. 
 
 i The alliance of the lawyers with the Stoic philo- 
 sophers lasted through many centuries. Some of 
 the earliest names in the series of renowned juris- 
 consults are associated with Stoicism, and ultimately 
 we have the golden age of Roman jurisprudence 
 fixed by general consent at the era of the Antonine 
 Caesars, the most famous disciples to whom that 
 philosophy has given a rule of life. The long 
 
66 LAW OF NATURE. chap. nr. 
 
 diffusion of these doctrines among the member^ of a 
 particular profession was sure to affect the art which 
 they practised and influenced. Several positions 
 which we find in the remains of the Roman juris- 
 consults are scarcely intelligible, unless we use the 
 Stoic tenets as our key ; but at the same time it is 
 a serious, though a very common, error to measure 
 1 the influence of Stoicism on Eoman law by counting 
 \up the nimiber of legal rules which can be con- 
 Ifidently affiliated on Stoical dogmas. It has often 
 Ibeen observed that the strength of Stoicism resided 
 not in its canons of conduct, which were often re- 
 pulsive or ridiculous, but in the great though vague 
 principle which it inculcated of resistance to passion. 
 Just in the same way the influence on jurisprudence 
 of the Greek theories, which had their most distinct 
 expression in Stoicism, consisted not in the num- 
 ber of specific positions which they contributed to 
 Roman law, but in the single fundamental assump- 
 tion which they lent to it. g After Nature had 
 become a household word in the mouths of the 
 Romans, the belief gradually prevailed among the 
 Roman lawyers that the old Jus Gentium was in 
 fact the lost code of Nature, and that the Praetor 
 in framing an Edictal jurisprudence on the prin- 
 ciples of the Jus Gentium was gradually restoring a 
 type from which law had only departed to deteriorate, s 
 The inference from this belief was immediate that it 
 
OHAP, m. EQUITY. 57 
 
 was the Praator'a duty to supersede the Civil Law as 
 much as possible by the Edict, to revive as far as 
 might be the institutions by which Nature had go- 
 verned man in the primitive state. Of course there 
 were many impediments to the amelioration of law by 
 this agency. There may have been prejudices to over- 
 come even in the legal profession itself, and Roman 
 habits were far too tenacious to give way at once 
 to mere philosophical theory. The indirect methods 
 by which the Edict combated certain technical anoma- 
 lies, show the caution which its authors were compelled 
 to observe, and down to the very days of Justinian 
 there was some part of the old law which had ob- 
 stinately resisted its influence. But on the whole, 
 the progress of the Eomans in legal improvement 
 was astonishingly rapid as soon as stimulus was 
 applied to it by the theory of Natural Law. 4 The 
 ideas of simplification and generalisation had always 
 been associated with the conception of Nature ; sim- 
 plicity, symmetry, and intelligibility came therefore 
 to be regarded as the characteristics of a good legal 
 system, and the taste for involved language, mul- 
 tiplied ceremonials, and useless difficultiies disap- 
 peared altogether. 4 The strong wiU and unusual 
 opportunities of Justinian were nSeded to bring the 
 Roman law to its existing shape, but the ground- 
 plan of the system had been sketched long before 
 the imperial reforms were effected. 
 
58 EQUITY. CHAP. ni. 
 
 ^ What was the exact point of contact between the 
 old Jus Gentium and the Law of Nature ? I think 
 
 (that they touch and blend through iEquitas, or 
 Equity in its original sense i and here we seem to 
 come to the first appearance in jurisprudence of this 
 famous term Equity. In examining an expression 
 which has so remote an origin and so long a history 
 as this, it is always safest to penetrate, if possible, 
 to the simple metaphor or figure which at first 
 shadowed forth the conception. It has generally 
 been supposed that jEquitas is the equivalent of the 
 Greek tcroTiys, i. e. the principle of equal or propor- 
 tionate distribution. The equal division of numbers 
 or physical magnitudes is doubtless closely entwined 
 
 D with our perceptions of justice ; there are few asso- 
 ciations which keep their ground in the mind so 
 stubbornly or are dismissed firom it with such diffi- 
 culty by the deepest thinkers. Yet in tracing the 
 history of this association, it certainly does not seem 
 to have suggested itself to very early thought, 
 but is rather the ofispi'ing of a comparatively late 
 philosophy. It is remarkable too that the " equality" 
 of laws on which the Greek democracies prided 
 themselves — that equality which, in the beautiful 
 drinking song of Callistratus, Harmodius and Aii- 
 stogiton are said to have given to Athens — ^had 
 little in common with the " equity " of the Romans. 
 The first was an equal administration of civil laws 
 
CHAP. m. EQUITY. 69 
 
 among the citizens, however limited the class of 
 citizens might be ; the last implied the applicability ♦ 
 of a law, which was not civil law, to a class which 
 did not necessarily consist of citizens. The first 
 excluded a despot ; the last included foreigners, and 
 for some purposes slaves. On the whole, I should 
 be disposed to look in another direction for the germ 
 of the Roman " Equity." vJThe Latin word " aequus 'V 
 v'Carries jwith it more distinctly than the Greek " la-og " 
 ythe sense of levelling.!^ 'Saw its levelling tendency 
 was exactly the characteristic of the Jus Gentium, yj 
 which would be most striking to a primitive Roman. 
 The pure Quiritarian law recognised a multitude 
 of arbitrary distinctions between classes of men and 
 kinds of property : \/the Jus Gentium, generalised 
 from a comparison of various customs, neglected 
 the Quiritarian divisions. The old Roman law 
 established, for example, a fundamental diflference 
 between "Agnatic" and "Cognatic" relationship, 
 that is, between the Family considered as based 
 upon common subjection to patriarchal authority 
 and the Family considered (in conformity with mo- 
 dern ideas) as united through the mere fact of a 
 common descent. This distinction disappears in the 
 "law common to all nations," as also does the 
 difference between the archaic forms of property. 
 Things " Mancipi " and Things " nee Mancipi." The 
 neglect of demarcations and boundaries seems to 
 
60 LAW. OF NATURE. chap, m 
 
 me, therefore, the feature of the Jus Gentium which 
 was depicted in ^quitas. j I imagine that the word 
 was at first a mere description of that constant 
 levelling or removal of irregularities which went on 
 wherever the prastorian system was applied to the 
 cases of foreign litigants. Probably no colour of 
 ethical meaning belonged at first to the expression ',^' 
 nor is there any reason to believe that the process 
 which it indicated was otherwise than extremely 
 distasteful to the primitive Roman mind. 
 
 On the other hand, the feature of the Jus Gentium 
 which was presented to the apprehension of a Roman 
 by the word Equity, was exactly the first and most 
 vividly realised characteristic of the hypothetical 
 state of nature. Nature implied symmetrical order, 
 first in the physical world, and next in the moral, 
 and the earliest notion of order doubtless involved 
 straight lines, even surfaces, and measured distances. 
 The same sort of picture or figure would be uncon- 
 sciously before the mind's eye, whether it strove to 
 form the outlines of the supposed natural state, or 
 whether it took in at a glance the actual administra- 
 tion of the " law common to aU nations ; " and all we 
 know of primitive thought would lead us to conclude 
 that this ideal similarity would do much to encourage 
 the beUef fn an identity of the two conceptions. But 
 then, while the Jus Gentium had little or no antecedent 
 credit at Rome, the theory of a Law of Nature came 
 
BBAP. m. THE EDICT. 61 
 
 iu surrounded with all the prestige of philosophical 
 authority, and invested with the charms of association , 
 with an elder and more blissful condition of the race. 
 It is easy to understand how the diflference in the 
 point of view would affect the dignity of the term 
 which at once described the operation of the old 
 principles and the results of the new theory. Even 
 to modern ears it is not at all the same thing to 
 describe a process as one of " levelling " and to call 
 it the " correction of anomalies," though the meta- 
 phor is precisely the same. Nor do I doubt that, 
 when once -iEquitas was understood to convey an 
 allusion to the Greek theory, associations which grew 
 out of the Greek notion of Jo-oT^jy began to cluster 
 round it. The language of Cicero renders it more 
 than likely that this was so, and it was the first 
 stage of a ^transmutation of the conception of 
 Equity,Mvhich almost every ethical system which has 
 appeared since those days has more or less helped to 
 carry on. 
 
 Something must be said of the formal instrumen- 
 tality by which the priuciples and distinctions asso- 
 ciated, first with the Law common to all nations, and 
 afterwards with the Law of Nature, were gradually 
 incorporated with the Roman law. At the crisis of 
 primitive Roman history which is marked by the 
 expulsion of the Tarquins, a change occurred which 
 has its parallel in the early annals of many ancient 
 
62 THE PRiETOE. CHAP. m. 
 
 states, but which had little in common with those 
 passages of political affairs which we now term revo- 
 lutions. It may best be described by saying that 
 the monarchy was put into commission. The powers 
 heretofore accumulated in the hands of a single per- 
 son were parcelled out among a number of elective 
 functionaries, the very name of the kingly office 
 being retained and imposed on a personage known 
 subsequently as the Rex Sacrorum or Rex Sacrifi- 
 culus. As part of the change, ^he settled duties of 
 the supreme judicial office devolved on the Praetor, 
 at the time the first functionary in the commonwealth, 
 and together with these duties was transferred the 
 undefined supremacy over law and legislation which 
 always attached to ancient sovereignSjV'and which is 
 not obscurely related to the patriai'chal and heroic 
 authority they had once enjoyed. The circumstances 
 of Rome gave great importance to the more indefinite 
 portion of the functions thus transferred, as with the 
 establishment of the republic began that series of 
 recurrent trials which overtook the state, in the diffi- 
 culty of dealing with a multitude of persons who, 
 not coming within the technical description of indige- 
 nous Romans, were nevertheless permanently located 
 within Roman jurisdiction. Controversies between 
 such persons, or between such persons and native-bom 
 citizens, would have remained without the pale of the 
 remedies provided by Roman law, if the Preetorhad 
 
CHAP. ni. THE EDICT. 63 
 
 not undertaken to decide them, and he must soon have 
 addressed himself to the more critical disputes which 
 in the extension of commerce arose between Roman 
 subjects and avowed foreigners. The great increase 
 of such cases in the Roman Courts about the period 
 of the first Punic War is marked by the appointment 
 of a special Praetor, known subsequently as the 
 Praetor Peregrinus, who gave them his undivided 
 attention. Meantime, one precaution of the Roman 
 people against the revival of oppression, had con- 
 sisted in obliging every magistrate whose duties had 
 any tendency to expand their sphere, to pubHsh, 
 on commencing his year of office, an Edict or 
 
 yproclamation in which he declared the manner in 
 which he intended to administer his department. 
 
 ^ The Praetor^ fell under the rule with other magis- 
 trates ; but as it was necessarily impossible to con- 
 struct each year a separate system of principles, he 
 seems to have regularly republished his predeces- 
 sor's Edict with such additions and changes as the 
 exigency of the moment or his own views of the law 
 compelled him to introduce. vThe Praetor's proclama- 
 
 ition, thus lengthened by a new portion every year, 
 obtained the name of the Edictum Perpetuum, that 
 is the continuous or unbroken edictv^ The immense 
 length to which it extended, together perhaps with 
 
 , some distaste for its necessarily disorderly texture, 
 caused the practice of increasing it to be ^stopped in 
 
64 THE PR^TOE. chap. m. 
 
 the year of Salvius Julianus, who occupied the magis- 
 tracy in the reign of the Emperor Hadrian. / The 
 edict of that Praetor embraced therefore the whole 
 body of equity jurisprudence, which it probably dis- 
 posed ia new and symmetrical order^ and the per- 
 petual edict is therefore often cited in Roman law 
 merely as the Edict of Julianus. 
 
 Perhaps the first inquiry which occurs to an 
 Englishman who considers the peculiar mechanism of 
 the Edict is, what were the limitations by which these 
 extensive powers of the Prsetor were restrained ? 
 f How was authority so little definite to be reconciled 
 with a settled condition of society and of law ? The 
 answer can only be supplied by careful observation of 
 the conditions under which our own English law is 
 administered. ,/The Praetor, it should be recollected, 
 was a jurisconsult himself, or a person entirely in the 
 hands of advisers who were jurisconsults, and it is 
 probable that every Roman lawyer waited impatiently 
 for the time when he should fill or control the great 
 judicial magistracy. In the interval, his tastes, feel- 
 ings, prejudices, and degree of enlightenment were 
 inevitably those of his own order, and the qualifica- 
 tions which he ultimately brought to office were those 
 which he had acquired in the practice and study of 
 his profession. An English Chancellor goes through 
 precisely the same training, and carries to the wool- 
 sack the same qualifications. It is certain when he 
 
CHAP. m. KESTKAINTS ON THE PK^TOE. Q6 
 
 assumes office that he will have, to some extent, mo- 
 dified the law before he leaves it ; but until he has 
 quitted his seat, and the series of his decisions in the 
 Law Reports has been completed, we cannot discover 
 how far he has elucidated or added to the principles 
 which his predecessors bequeathed to him. The in- 
 fluence of i^he Pra3to5)on Roman jurisprudence differed 
 only in respect of the period at which its amount was 
 ascertained. As was before stated, he was in office 
 but for a year, and his decisions rendered during his 
 year, though of course irreversible as regarded the 
 litigants, were of no ulterior value.^' The most natu- 
 ral moment for declaring the changes he proposed to 
 effect, occurred therefore at his entrance on the pra3- 
 
 ytorship ; and hence, when commencing his duties, he 
 did openly and avowedly that which in the end his 
 English representative does insensibly and sometimes 
 
 unconsciously. The checks on his apparent liberty 
 are precisely those imposed on an English judge. 
 Theoretically there seems to be hardly any limit to 
 the powers of either of them, but practically the 
 Roman Praetor, no less than the English Chancellor, 
 was kept within the narrowest bounds by the prepos- 
 sessions imbibed from early training, and by the 
 strong restraints of professional opinion, restraints 
 of which the stringency can only be appreciated by 
 those who have personally experienced them. It 
 may be added that the lines within which movement is 
 
66 EQUITY. CHAP, m, 
 
 permitted, and beyond wMda there is to be no travel- 
 ling, -were chalked with as much distinctness in the 
 one case as in the other. In England the judge fol- 
 lows the analogies of reported decisions on insulated 
 groups of facts. At Rome, as the intervention of the 
 Praetor was at first dictated by simple concern for the 
 safety of the state, it is likely that in the earliest 
 times it was proportioned to the difficulty which it 
 attempted to get rid of. Afterwards, when the taste 
 for principle had been diffused by the Responses, he no 
 doubt used the Edict as the means of giving a wider 
 application to those fundamental principles which he 
 and the other practising jurisconsults, his contempo- 
 raries, believed themselves to have detected under- 
 Ijdng the law. Latterly he acted whoUy under the 
 influence of Greek philosophical theories, which at 
 once tempted him to advance and confined him to a 
 particular course of progress. 
 
 The nature of the measures attributed to Salvius 
 Juhanus "^as been much disputed. Whatever they 
 were, their effects on the Edict are sufficiently plain. 
 It ceased to be extended by annual additions, and 
 henceforward the equity jurisprudence of Rome 
 \ was developed by the labours of a succession of 
 great jurisconsults>'who fill with their writings the 
 interval between the reign of Hadrian and the reign 
 of Alexander Severus. A fragment of the wonder- 
 ful system which they built up survives in the 
 
CHAP, m. ROMAN EQUITY. 67 
 
 Pandects of Justinian, and supplies evidence that 
 their works took the form of treatises on all parts 
 of Roman law, but chiefly that of commentaries on 
 the Edict. Indeed, whatever be the immediate sub- 
 ject of a jurisconsult of this epoch, he may always 
 be called an expositor of Equity. ; The principles 
 of the Edict had, before the epoch of its cessation, 
 made their way into every part of Roman jurispru- 
 dence. The Equity of Rome, it should be understood, 
 even when most distinct from the Civil Law, was 
 always administered by the same tribunals, i. The 
 Prastor was the chief equity judge as well as the great 
 common law magistrate, and as soon as the Edict had 
 evolved an equitable rule the Praetor's court began to 
 apply it in place of or by the side of the old rule of 
 the Civil Law, which was thus directly or indirectly 
 repealed without any express enactment of the legis- 
 lature. The result, of course, fell considerably short 
 of a complete fusion of law and equity, which was not 
 carried out till the reforms of Justinian. The techni- 
 cal severance of the two elements of jurisprudence 
 entailed some confusion and some inconvenience, 
 and there were certain of the stubborner doctrines 
 of the Civil Law with which neither the authors 
 nor the expositors of the Edict had ventured to in- 
 terfere. But at the same time there was no corner 
 of the field of jurisprudence which was not more or 
 less swept over by the influence of Equity. It sup- 
 
 F2 
 
68 BQCITT. 0HiP. HE 
 
 plied the jurist mth all his materials for generalisa- 
 tion, with all his methods of interpretation, with 
 his elucidations of first principles, and with that 
 great mass of limiting rules which are rarely inter- 
 fered with by the legislator, but which seriously 
 control the application of every legislative act. 
 
 V, The period of jurists ends with Alexander Severus. 
 From Hadrian to that emperor the improvement of 
 law was carried on, as it is at the present moment in 
 most continental countries, partly by approved com- 
 mentaries and partly by direct legislation. But in 
 the reign of Alexander Severus the power of growth 
 in Eoman Equity seems to be exhausted, and the suc- 
 cession of jurisconsults comes to a close. The remain- 
 
 ^ ing history of the Roman law is the history of the 
 imperial constitutions, and, at the last, of attempts to 
 codify what had now become the unwieldy body of 
 Roman jurisprudence. We have the latest and most 
 celebrated experiment of this kind in the Corpus Juris 
 of Justinian. 
 
 It would be wearisome to enter on a detailed com- 
 parison or contrast of English and Roman Equity; 
 but it may be worth while to mention two features 
 which they have in common. The first may be 
 
 ^istated as follows. Each of them tended, and all 
 such systems tend, to exactly the same state in 
 which the old cojiimon law was when Equity first 
 interfered with it. A time always comes at which 
 
:hap. IIL ENGLISH AND EOMAN KQUITV. 69 
 
 the moral principles originally adopted have been 
 carried out to all their legitimate consequences, and, 
 then the system founded on them becomes as rigid, 
 as unexpansive, and as liable to fall behind moral 
 progress as the sternest code of rules avowedly legal. 
 Such an epoch was reached at Kome in the reign 
 of Alexander Severus ; after which, though the 
 whole Roman world was undergoing a moral revo- 
 lution, the Equity of Rome ceased to expand. The 
 same point of legal history was attained in Eng- 
 land under the chancellorship of Lord Eldon, the 
 first of our equity judges who, instead of enlarg- 
 ing the jurisprudence of his court by indirect 
 legislation, devoted himself through life to explain- 
 ing and harmonising it. If the philosophy of legal 
 history were better understood in England, Lord 
 Eldon's services would be less exaggerated on the 
 one hand and better appreciated on the other than 
 they appear to be among contemporary lawyers. 
 Other misapprehensions, too, which bear some prac- 
 tical fruit, would perhaps be avoided. It is easily 
 seen by English lawyers that English Equity is a 
 system founded on moral rules ; but it is forgotten 
 that these rules are the morality of past centuries — 
 not of the present — that they have received nearly 
 as much application as they are capable of, and that, 
 though of course they do not diflfer largely from the 
 ethical creed of our own day, they are not necessarily 
 
70 EQUITY. CHAP. iiL 
 
 '\ on a level with it. The imperfect theories of the 
 1 subject which are commonly adopted have generated 
 I eryors of opposite sorts. Many writers of treatises 
 Ion Equity, struck with the completeness of the system 
 in its present state, commit themselves expressly 
 or implicitly to the paradoxical assertion that the 
 founders of the chancery jurisprudence contem- 
 plated its present fixity of form when they were 
 settling its first basis. Others, again, complain — 
 and this is a grievance frequently observed upon in 
 forensic arguments— that the moral rules enforced 
 by the Court of Chancery fall short of the ethical 
 standard of the present day. They would have 
 each Lord Chancellor perform precisely the same 
 office for the jurisprudence which he finds ready 
 to his hand, which was performed for the old com- 
 mon law by the fathers of English equity. But this 
 is to invert the order of the agencies by which the 
 improvement of the law is carried on. Equity has 
 its place and its time ; but I have pointed out that 
 another instrumentality is ready to succeed it when 
 its energies are spent. 
 
 -J Another remarkable characteristic of both English 
 and Roman Equity is the falsehood of the assixmp- 
 tions upon -which the claim of the equitable to supe- 
 riority over the legal rule is originally defended. , 
 Nothinq; is more distasteful to men, either as indi- 
 - viduals or as masses, than the admission of their 
 
OHAP. m. BNGLISH AND EOMAN EQUITY. 71 
 
 moral progress as a substantive reality. This un- 
 ■wiUingness shows itself, as regards individuals, in the, 
 ^exaggerated respect which is ordinarily paid to the 
 doubtful virtue of consistency. The movement of the 
 collective opinion of a whole society is too palpable 
 to be ignored, and is generally too visibly for the 
 better to be decried ; but there is the greatest dis- 
 inclination to accept it as a primary phenomenon, and 
 it is commonly explained as the recovery of a lost 
 perfection — the gradual return to a state from which 
 the race has lapsed. This tendency to look back- 
 ward instead of forward for the goal of moral pro- 
 gres^_produced ancie ntly, as we have seen, on Roman 
 jurisprude nce effects the most serious a nd perma- 
 nent. ^ The Roman jurisconsults, in order to account 
 for the improvement of their jurisprudence by the 
 PrsBtor, borrowed from Greece the doctrine of a 
 Natural state of man — a Natural society — anterior 
 to the organisation of commonwealths governed by 
 positive laws. In England, on the other hand, a 
 range of ideas especially congenial to Englishmen of 
 that day, explained the claim of Equity to override 
 the common law by supposing a general right to 
 superintend the administration of justice which was 
 assumed to be vested in the king as a natural result 
 of his paternal authority. The same view appears 
 in a different and a quainter form in the old doctrine 
 that Equity flowed from the king's conscience — the 
 
72 EQUITY. ciL\p. m. 
 
 improvement which had in fact taken place in the 
 moral standard of the community being thus referred 
 to an inherent elevation in the moral sense of the 
 sovereign. The growth of the Enghsh constitution 
 rendered such a theory unpalatable after a time ; 
 but as the jurisdiction of the Chancery was then 
 firmly established, it was not worth while to devise 
 any formal substitute for it. The theories found 
 in modem manuals of Equity are very various, but 
 all are alike in their untenability. Most of them are 
 modifications of the Roman doctrine of a natural 
 law, which is indeed adopted in terms by those 
 writers who begin a discussion of the jurisdiction of 
 the Court of Chancery by laying down a distinction 
 between natural justice and civil. 
 
OHAJ'. IT. LAW OE NATURJS. 73. 
 
 CHAPTER IV. 
 
 THE MODEEN HISTORY OF THE LAW OF NATURE. 
 
 It will be .inferred from what has been said that 
 the theory which transformed the Roman jurispru- 
 dence had no claim to philosophical precision. It 
 involved in fact, one of those " mixed modes of 
 thought" which arS'^'now acknowledged to have 
 characterized all but the highest minds during the 
 infancy of speculation, and which are far from un- 
 discoverable even in the mental efforts of our own 
 day, ,/The Law of Nature confused the Past and the 
 Present. Logically, it impHed a state of Nature 
 which had once been regulated by natural law ^ yet 
 the jurisconsults do not speak clearly or confidently 
 of the existence of such a state, which indeed is little 
 noticed by the ancients except where it finds a 
 poetical expression in the fancy of a golden age. 
 Natural law, for all practical purposes, was some- 
 thing belonging to the present, something entwined 
 with existing institutions, something which could be 
 distinguished from them by a competent observer. 
 The test which separated the ordinances of Nature 
 
74 MODERN HISTOKT OF NATURAL LAW. chap. it. 
 
 fpom the gross ingredients with which they were min- 
 gled was a sense of simplicity and harmony ; yet it 
 was not on account of their simplicity and harmony 
 that these finer elements were primarily respected, but 
 on the score of their descent from the aboriginal reign 
 of Nature. ■J This confusion has not been successfully 
 explained away by the modern disciples of the juris- 
 consults, and in truth modern speculations on the 
 Law of Nature betray much more indistinctness of 
 perception and are vitiated by much more hopeless 
 ambiguity of language than the Roman lawyers can 
 be justly charged with. There at-e some writers on 
 the subject who attempt to evade the fundamental 
 difficulty by contending that the code of Nature 
 exists in the future and is the goal to which aU civil 
 laws are moving, but this is to reverse the assump- 
 tions on which the old theory rested, or rather 
 perhaps to mix together two inconsistent theories. 
 |\The tendency to look not to the past but to the future 
 for types of perfection was brought into the world 
 by Christianity. Ancient literature gives few or 
 no hints of a belief that the progress of society is 
 necessarily from worse to better. 
 
 But the importance of this theory to mankind has 
 been very much greater than its philosophical de- 
 ficiencies would lead us to expect. Indeed, it is not 
 easy to say what turn the history of thought, and 
 therefore of the human race, would have taken, if the 
 
OHAP. IV. PERILS OF EARLY SOCIKTY. 76 
 
 belief iu a law natural had not become universal in 
 tbe ancient world. 
 
 There are two^ special dangers to which law, and 
 society which is held together by law, "appear to be 
 liable iu their infancy. */ One of them is that law 
 may be too rapidly de veloped, j This occurred with 
 the codes of the more progressive Greek communities, v^ 
 which disembarrassed themselves with astonishing 
 facility from cumbrous forms of procedure and 
 needless terms of art, and soon ceased to attach any 
 superstitious value to rigid rules and prescriptions. 
 It was not for the ultimate advantage of mankind 
 that they did so, thpugh the immediate benefit con- 
 ferred on their citizens may have been considerable. 
 One of the rarest qualities of national character is 
 the capacity for applying and working out the law, 
 as such, at the cost of constant miscarriages of 
 abstract justice, without at the same time losing 
 the hope or the wish that law may be conformed 
 to a higher ideal. The Greek intellect, with all 
 its mobility and elasticity, was quite unable to confine 
 itself within the strait waistcoat of a legal formula ; 
 and, if we may judge them by the popular courts 
 of Athens, of whose working we possess accurate 
 knowledge, iflie Greek tribunals exhibited the strongest 
 tendency to confound law and fact. ' The remains 
 of the Orators and the forensic commonplaces pre- 
 served by Aristotle in his Treatise on Rhetoric, show 
 
7(5 NATURAL LAW OP THE JUEISCONSULTS. chap. iv. 
 
 that questions of pure law were constantly argued 
 on every consideration which could possibly influence 
 the mind of the judges. No durable system of 
 jurisprudence could be produced in this way. _A 
 community which never hesitated to relax rules of 
 written law whenever they stood in the way of an 
 ideally perfect decision o n the facts of particular 
 cases, would only, if it bequeathed any body of 
 judicial principles to posterity, bequeath one con- 
 sisting of the ideas of right and wrong which hap- 
 pened to be prevalent at the time. Such a jurispru- 
 dence would contain no framework to which the 
 more advanced conceptions of subsequent ages could 
 be fitted. It would amount at best to a philosophy, 
 marked with the imperfections of the civilisation 
 under which it grew up. 
 
 Few national societies have had their jurispru- 
 dence menaced by this peculiar danger of precocious 
 maturity and imtimely disintegration. It is cer- 
 tainly doubtful whether the Romans were ever 
 seriously threatened by it, but at any rate they had 
 adequate protection in their theory of Natural Law. 
 For the Natural Law of the jurisconsults was dis- 
 tin(;tly conceived by them as a system which ought 
 gradually to absorb civil laws, without superseding 
 them so long as they remained unrepealed. There 
 was no such impression of its sanctity abroad, that 
 an appeal to it would be likely to overpower the 
 
CHAP. IT. LAW OF NATTJEE. 77 
 
 mind of a judge who was charged with the superin- 
 tendence of a particular litigation. The value and, 
 serviceableness of the conception arose from its 
 keeping before the mental vision a type of perfect 
 law, and from its inspiring the hope of an indefinite 
 approximation to it, at the same time that it never 
 tempted the practitioner or the citizen to deny the 
 obligation of existing laws which had not yet been 
 adjusted to the theory. It is important too to observe 
 that this model system, unlike many of those which 
 have mocked men's hopes in later days, was not 
 entirely the product of imagination. It was never 
 thought of as founded on quite untested principles. 
 vThe notion was that it underlay existing law and 
 must be looked for through it. Its functions were 
 in short remedial, not revolutionary or anarchical. 
 And this, unfortunately, is the exact point at which 
 the modern view of a Law of Nature has often ceased 
 to resemble the ancient, t 
 
 vThe other liability^ to which the infancy of society 
 is exposed has prevented or arrested the progress of 
 far the greater part of mankind. JThe rigidity of 
 primitive law, arising chiefly from its early associa- 
 tion and identification with religion, has chained 
 down the mass of the human race to those views 
 of life and conduct which they entertained at the 
 time when their usages were first consolidated into 
 a systematic form."] There were one or two races 
 
78 HISTORY OP LAW OF NATURE. chai\ iv. 
 
 exempted by a marvellous fate from this calamity, 
 and grafts from these stocks have fertilised a few 
 modem societies ; but it is still true that, over the 
 larger part of the world, the perfection of law has 
 always been considered as consisting in adherence to 
 the groundplan supposed to have been marked out 
 by the original legislator. If intellect has in such 
 cases been exercised,on jurisprudence, it has uniformly 
 prided itself on' the subtle perversity of the conclu- 
 sions it could bidld on ancient texts, without dis- 
 coverable departure from their literal tenour. I know 
 no reason why the law of the Romans should be su- 
 perior to the laws of the Hindoos, unless the theory 
 of Natural Law had given it a type of excellence 
 dififerent from the usual one. In this one exceptional 
 instance, simplicity and symmetry were kept before 
 the eyes of a society whose influence on mankind was 
 
 .destined to be prodigious from other causes, as the 
 characteristics of an ideal and absolutely perfect law. 
 
 I It is impossible to overrate the importance to a nation 
 or profession of having a distinct object to aim at 
 in the pursuit of improvement. The secret of 
 Bentham's immense influence in England during the 
 past thirty years is his success in placing such an 
 object before the country. He gave us a clear rule 
 of reform. English lawyers of the last century were 
 probably too acute to be blinded by the paradoxical 
 commonplace that English law was the perfection of 
 
CHAP. TV BENTHAMISM. TV) 
 
 human reason, but they acted as if they believed it 
 for want of any other principle to proceed upon. 
 VBentham made the good of the community take 
 precedence of every other object, and thus gave 
 escape to a current which had long been trying to 
 find its way outwards. 
 
 It is not an altogether fanciful comparison if we 
 call the assumptions we have been describiag the 
 ancient counterpart of Benthamism. The Roman 
 theory guided men's efforts in the same direction 
 as the theory put into shape by the Englishman; its 
 practical results were not widely different from those 
 which would have been attained by a sect of law- 
 reformers who maintained a steady pursuit of the 
 general good of the community. It would be a 
 mistake, however, to suppose it a conscious antici- 
 pation of Bentham's principles. The happiness of 
 mankind is, no doubt, sometimes assigned, both in 
 the popular and in the legal literature of the Romans, 
 as the proper object of remedial legislation, but it is 
 very remarkable how few and faint are the testimonies 
 to this principle compared with the tributes which are 
 constantly offered to the overshadowing claims of the 
 Law of Nature. It was not to anything resembling 
 philanthropy but to their sense of simplicity and 
 harmony — of what they significantly termed " ele- 
 gance " — that the Roman jurisconsults freely surren- 
 dered themselves. The coincidence of their labours 
 
80 HISTORY OF LAW OF NATUEE. chap, rv, 
 
 with those which a more precise philosophy would 
 have counselled has been part of the good fortune 
 of mankind. 
 
 Turning to the modem history of the law of nature, 
 we find it easier to convince ourselves of the vast- 
 ness of its influence than to pronounce confidently 
 whether that influence has been exerted for good or 
 for evil. The doctrines and institutions which may 
 be attributed to it are the material of some of the 
 most violent controversies debated in our time, as 
 will be seen when it is stated that the theory of 
 Natui'al Law is the source of almost all the special 
 ideas as to law, politics, and society which France 
 during the last hundred years has been the instru- 
 ment of diffusing over the western world. The part 
 played by jurists in French history, and the sphere 
 of jural conceptions in French thought, have always 
 been remarkably large. It was not indeed in France, 
 but in Italy, that the juridical science of modern 
 Europe took its rise, but of the schools founded by 
 emissaries of the Italian universities in all parts of 
 the Continent, and attempted (though vainly) to be 
 set up in our island, that established in France pro- 
 duced the greatest efiect on the fortunes of the country. 
 The lawyers of France immediately formed a strict 
 alliance with the kings of the houses of Capet and 
 Valois, and it was as much through their assertions of 
 royal prerogative, and through their interpretations of 
 the rules of feudal succession, as by the power of the 
 
cnAr. nr. THE FKEXCIl LAWYEr.S. bl 
 
 sword that the French monarchy at last grew to- 
 gether out of the agglomeration of provinces and 
 dependencies. The enormous advantage which their 
 understanding with the lawyers conferred on the 
 French kings in the prosecution of their struggle 
 with the great feudatories, the aristocracy and the 
 Church, can only be appreciated if we take into 
 account the ideas which prevailed in Europe far down 
 into the middle ages. There was, in the first place, 
 
 L_a great enthusiasm for generalisation and a curious 
 admiration for all general propositions, and conse- 
 quently, in the field of law, an involuntary^ reverence 
 for every general formula which seemed to embrace 
 and sum up a number of the insulated rules which 
 were practised as usages in various localities. Such 
 
 y^neral formulas it was, of course, not difficult for 
 practitioners familiar with the Corpus Juris or the 
 Glosses to supply in almost any quantity. , There was, 
 however, another cause which added yet more con- 
 siderably to the lawyers' power. At the period of 
 which we are speaking, there was universal vagueness 
 of ideas as to the degree and nature of the authority 
 residing in ^vritten texts of law. For the most part 
 the peremptory preface, Ita scriptum est, seems to 
 have been sufficient to silence all objections. "Where 
 a mind of our own day would jealously scrutinise the 
 formula which had been quoted, would inquire its 
 
 source, and would (if necessary) deny that the body 
 
 G 
 
82 HISTOKY OF LAW OF NATURE. chap. it. 
 
 of law to which it belonged had any authority to 
 supersede local customs, the elder jurist would not 
 probably have ventured to do more than question the 
 applicability of the rule, or at best cite some counter- 
 proposition from the Pandects or the Canon Law. It 
 is extremely necessary to bear in mind the imcer- 
 tainty of men's notions on this most important side 
 of juridical controversies, not only because it helps to 
 explain the weight which the lawyers threw into the 
 monarchical scale, but on account of the light which 
 it sheds on several curious historical problems. The 
 motives of the author of the Forged Decretals and 
 his extraordinary success are rendered more intelli- 
 gible by it. And to take a phenomenon of smaller 
 interest, it assists us, though only partially, to under- 
 stand the plagiarisms of Bracton. That an English 
 writer of the time of Henry III. should have been 
 able to put off on his countrymen as a compendium 
 of pure Enghsh law a treatise of which the entire 
 form and a third of the contents were directly bor- 
 rowed from the Corpus Jm:is, and that he should have 
 ventured on this experiment in a country where the 
 systematic study of the Roman Law was formally 
 proscribed, will always be among the most hopeless 
 enigmas in the history of jurisprudence ; but still it 
 is something to lessen our surprise when we compre- 
 hend the state of opinion at the period as to the 
 obligatory force of written texts, apart from all con- 
 sideration of the source whence they were derived. 
 
CHAP. IT. THE FRENCH LAWYERS. aS 
 
 When the kings of France had brought their long 
 struggle for supremacy to a successful close, an epoch 
 which may be placed roughly at the accession of the 
 branch of Valois-AngoulSme to the throne, the situa- 
 tion of the French jurists was peculiar, and continued 
 to be so down to the outbreak of the Revolution. On 
 the one hand, they formed the best instructed and 
 nearly the most powerful class in the nation. They 
 had made good their footing as a privileged order by 
 the side of the feudal aristocracy, and they had assured 
 their influence by an organization which distributed 
 their profession over France in great chartered corpo- 
 rations possessing large defined powers and still larger 
 indefinite claims. In aU the qualities of the advocate 
 the judge, and the legislator, they far excelled their 
 compeers throughout Europe. Their judicial tact, 
 their ease of expression, their fine sense of analogy 
 and harmony, and (if they may be judged by the 
 highest names among them) their passionate devotion 
 to their conceptions of justice, were as remarkable as 
 the singular variety of talent which they included, a 
 variety covering the whole ground between the oppo- 
 site poles of Cujas and Montesquieu, of D'Aguesseau 
 and Dumoulin, But, on the other hand, the system 
 of laws which they had to administer stood in striking 
 contrast with the habits of naind which they had cul- 
 tivated. The France which had been in great part 
 constituted by their efforts was smitten with the 
 
 ft -2 
 
84 HISTOEY OF LAW OF NATURK chap. rv. 
 
 curse of an anomalous and dissonant jurisprudence 
 beyond every other country in Europe. One great 
 division ran through the country and separated it 
 into Pays de Droit Ecrit and Pays de Droit Coutu- 
 mier, the first acknowledging the written Roman law 
 as the basis of their jurisprudence, the last admitting 
 it only so far as it supplied general forms of expres- 
 sion, and courses of juridical reasoning, which were 
 reconcileable with the local usages. The sections 
 thus formed were again variously subdivided. In 
 the Pays de Droit Coutumier province differed from 
 province, county from county, municipality from 
 municipahty, in the nature of its customs. In the 
 Pays de Droit Ecrit the stratum of feudal rules' 
 which overlay the Roman law was of the most miscel- 
 laneous composition. No such confusion as this ever 
 existed in England. In Germany it did exist, but 
 was too much in harmony with the deep political and 
 religious divisions of the country to be lamented or 
 even felt. It was the special peculiarity of France 
 that an extraordinary diversity of laws continued 
 without sensible alteration while the central authority 
 of the monarchy was constantly strengthening itself, 
 while rapid approaches were being made to complete 
 administrative unity, and while a fervid national 
 spirit had been developed among the people. The 
 contrast was one which fructified in many serious 
 results, and among them we must rank the effect 
 
CHAP, IT. THE FBENCfl LAWYEES. 8fi 
 
 which it produced on the minds of the French 
 lawyers. Their speculative opinions and their intel-, 
 lectual bias were in the strongest opposition to .their 
 interests and professional habits. With the keenest 
 sense and the fullest recognition of those perfections 
 of jurisprudence which consist in simplicity and 
 uniformity, they believed, or seemed to believe, that 
 the vices which actually invested French law were 
 ineradicable; and in practice they often resisted the 
 reformation of abuses with an obstinacy which was 
 not shown by many among their less enlightened 
 countrymen. But there was a way to reconcile these 
 contradictions. They became passionate enthusiasts 
 
 \for Natural Law. The Law of Nature overleapt all 
 provincial and municipal boundaries; it disregarded 
 all distinctions between noble and burgess, between 
 burgess and peasant; it gave the most exalted place 
 to lucidity, simplicity, and system; but it committed 
 its devotees to no specific inaprovement, and did not 
 directly threaten any venerable or lucrative techni- 
 
 ic^lity. Natural law may be said to have become the 
 common law of France, or, at all events, the admis- 
 sion of its dignity and claims was the one tenet which 
 all French practitioners alike subscribed to. The lan- 
 guage of the prae-revolutionary jurists in its eulogy 
 is singularly unqualified, and it is remarkable that 
 the writers on the Customs, who often made it their 
 duty to speak disparagingly o£ the pure Roman law, 
 
86 HISTORY OF LAW OF NATURE. chat. it. 
 
 speak even more fervidly of Nature and lier rules 
 than the civilians who professed an exclusive respect 
 for the Digest and the Code. Dumoulin, the highest 
 of all authorities on old French Customary Law, has 
 some extravagant passages on the Law of Nature; 
 and his panegyrics have a peculiar rhetorical turn 
 which indicates a considerable departure from the 
 caution of the Roman jurisconsults. The hypothesis 
 of a Natural Law had become not so much a theory 
 guiding practice as an article of speculative faith, 
 and accordingly we shall find that, in the transfor- 
 mation which it more recently underwent, its weakest 
 parts rose to the level of its strongest in the esteem 
 of its supporters. 
 
 The eighteenth century was half over when the 
 most critical period in the history of Natural Law 
 was reached. Had the discussion of the theory and 
 of its consequences continued to be exclusively the 
 employment of the legal profession, there would pos- 
 sibly have been an abatement of the respect which it 
 commanded ; for by this time the Esprit des Lois had 
 appeared. Bearing in some exaggerations the marks 
 of the excessive violence with which its author's 
 mind had recoiled from assumptions usually suffered 
 to pass without scrutiny, yet showing in some am- 
 biguities the traces of a desire to compromise with 
 existing prejudice, the book of Montesquieu, with all 
 its defects, stiU proceeded on that Historical Method 
 
CKAP. IV. KOUSSEA0. 87 
 
 before which the Law of Nature has never maintained 
 its footing for an instant. Its influence on thought 
 ought to have been as great as its general popu- 
 larity; but, in fact, it was never allowed time to 
 put it forth, for the counter-hypothesis which it 
 seemed destined to destroy passed suddenly from 
 the forum to the street, and became the key-note 
 of controversies far more exciting than are ever 
 ■agitated in the courts or the schools. The person 
 who launched it on its new career was that remark- 
 able man who, without learning, with few virtues, 
 and with no strength of character, has nevertheless 
 stamped himself inefFaceably on history by the force 
 of a vivid imagination, and by the help of a genuine 
 and burning love for his fellow-men, for which much 
 will always have to be forgiven him. We have 
 never seen in our own generation — indeed the world 
 has not seen more than once or twice in all the 
 course of history^a literature which has exercised 
 such prodigious influence over the minds of men, 
 over every cast and shade of intellect, as that which 
 emanated from Eousseau between 1749 and 1762. 
 It was the first attempt to re-erect the edifice of 
 human belief after the purely iconoclastic efforts 
 commenced by Bayle, and in part by our own Locke, 
 and consummated by Voltaire; and besides the supe- 
 riority which every constructive effort will always 
 enjoy over one that is merely destructive, it possessed 
 
88 .^ HISTORY OF LAW OF NATURE. CHiP. ry. 
 
 the immense advantage of appearing amid aii all 
 but universal scepticism as to the soundness of all 
 foregone knowledge in matters speculative. Now, in 
 all the speculations of Rousseau, the central figure, 
 whether arrayed in an English dress as the signa- 
 tary of a social compact, or simply stripped naked of 
 all historical qualities, is uniformly Man, in a sup- 
 posed state of nature. Eveiy law or institution 
 which would misbeseem this imaginary being under 
 these ideal circumstances is to be condemned as 
 having lapsed from an original perfection ; every 
 transformation of society which would give it a 
 closer resemblance to the world over which the 
 creature of Nature reigned, is admirable and worthy 
 to be effected at any apparent cost. The theory is 
 still that of the Roman lawyers, for in the phan- 
 tasmagoria with which the Natural Condition is 
 peopled, every feature and characteristic eludes the 
 mind except the simplicity and harmony which pos- 
 sessed such charms for the jurisconsult ; but the 
 theory is, as it were, turned upside down. ^ It is not 
 the Law of Nature, but the State of Nature, which 
 is now the primary subject of contemplation. The 
 Roman had conceived that by careful observation of 
 existing institutions parts of them could be singled 
 out which either exhibited already, or could by 
 judicious purification be made to exhibit, the vestiges 
 of that reign of nature whose reality he faintly 
 
CHAP. TT. THEOKIES OF KOUSSEAU. 80 
 
 ivtfirmed. Rousseau's belief was that a perfect social 
 order could be evolved from the unassisted considera- 
 tion of the natural state, a social order wholly irre- 
 spective of the actual condition of the world and 
 wholly unlike it. T he great difference between the 
 views is that one bitterly and broadly condemns the 
 present for its unlikeness to the ideal past ; while the 
 other, assuming the present to be as necessary as the 
 past, does not affect to disregard or censure it/ It is 
 not worth our while to analyse with any particu- 
 larity that philosophy of politics, art, education, 
 ethics, and social relations which was constructed on 
 the basis of a state of nature. It still possesses 
 singular fascination for the looser thinkers of every 
 country, and is no doubt the parent, more or less 
 remote, of almost all the prepossessions which im- 
 pede the employment of the Historical Method of in- 
 quiry, but its discredit with the higher minds of our 
 day is deep enough to astonish those who are familiar 
 with the extraordinary vitality of speculative error. 
 Perhaps the question most frequently asked nowa- 
 days is not what is the value of these opinions, but 
 what were the causes which gave them such over- 
 shadowing prominence a hundred years ago. The 
 answer is, I conceive, a simple one. The study which 
 in the last century would best have corrected the 
 misapprehensions into which an exclusive atten- 
 tion to legal antiquities is apt to betray was the 
 
9C HISTORY OF LAW OF NATURE. chap. it. 
 
 study of religion. But Greek religion, as then under- 
 stood, was dissipated in imaginative myths. The 
 Oriental religions, if noticed at all, appeared to be 
 lost in vain cosmogonies. There was but one body 
 of primitive records which was worth studying — the 
 early history of the Jews. But resort to this was 
 prevented by the prejudices of the time. One of the 
 few characteristics which the school of Rousseau had 
 in common with the school of Voltaire was an utter 
 disdain of all religious antiquities ; and, more, than 
 aU, of those of the Hebrew race. It is well known 
 that it was a point of honour with the reasoners of 
 that day to assume not merely that the institutions 
 called after Moses were not divinely dictated, nor 
 even that they were codified at a later date than that 
 attributed to them, but that they and the entire 
 Pentateuch were a gratuitous forgery, executed after 
 the return from the Captivity. Debarred, therefore, 
 from one chief security against speculative delusion, 
 the philosophers of France, in their eagerness to 
 escape from what they deemed a superstition of the 
 priests, flung themselves headlong into a superstition 
 of the lawyers. 
 
 But though ^the philosophy foimded on the hypo- 
 thesis of a state of natureVhas fallen low in general 
 esteem, in so far as it is looked upon under its coarser 
 and more palpable aspect, it does not follow that in 
 its subtler disguises it has lost plausibility, popu- 
 
CHAP. IV. THE FBENCH EEVOLUTIOST. 91 
 
 larity, or power. I believe, as I have said, that iti^s 
 yjtill the great antagonist of the Historical Method ; , 
 and whenever (religious objections apart) any mind 
 is seen to resist or contemn that mode of investi- 
 gation, it will generally be found under the influence 
 of a prejudice or vicious bias traceable to a conscious 
 or unconscious reliance on a non-histoiic, natural 
 condition of society or the individual. V It is chiefly, 
 however, by allying themselves with political and 
 Bocial tendencies that the docti^nes of Nature and 
 her law have preserved their energy. Some of these 
 tendencies they -have stimulated, others they have 
 actually created, to a great number they have giveia 
 expression and form. They visibly enter largely 
 into the ideas which constantly radiate from France 
 over the civilised world, and thus become part of the 
 general body of thought by which its civilisation is 
 modified. The value of the influence which they 
 thus exercise over the fortunes of the race is of course 
 one of the points which our age debates most warmly, 
 and it is beside the purpose of this treatise to discuss 
 it. Looking back, however, to the period at which 
 the theory of the state of nature acquired the maxi- 
 mum of political importance, there are few who will 
 deny that it helped most powerfully to bring about 
 the grosser disappointments of which the first 
 French Revolution was fertile. It gave birth, or 
 intense stimulus, to the vices of mental habit all bui 
 
B2 HISTOKY OF LAW OF NATUBE. chap. iA 
 
 universal at the time, disdain of positive law, im- 
 patience of experience, and the preference of d priori 
 to all other reasoning. In proportion too as this 
 philosophy fixes its grasp on minds which have 
 thoughtless than-q|;hers and fortified themselves with 
 smaller observation, its tendency is to become dis- 
 tinctly anarchical. It is surprising to note how 
 many of the Sophismes Anarchiques which Dumont 
 published for Bentham, and which embody Bentham's 
 exposure of errors distinctively French, are derived 
 from the Roman hypothesis in its French transfor- 
 mation, and are unintelUgible unless referred to it. 
 On this point too it is a curious exercise to consult 
 the Moniteur during the principal eras of the Revo- 
 lution. The appeals to the Law and State of Nature 
 become thicker as the times grow darker. 
 { There is a single example which very strikingly 
 illustrates the effects of the theory of natural law on 
 modern society, •rind indicates how very far are those 
 effects from being exhausted. There cannot, I con- 
 ceive, be any ques^on that to the assumption of a 
 Law Natural we o-vye the doctrine of the fundamental 
 equality of human beings. That " all men are equ al"' 
 is one of a large number of legal propositions which 
 in progress of time have become political. The Ro- 
 man jurisconsults of the Antonine era lay down that 
 " omnes homines naturU sequales sunt," but in their 
 eyes this is a strictly juridical axiom. They intend 
 
CHAP, IV. EQUALITY OF MEN. 93 
 
 to affirm that, under the hypothetical Law of Nature, 
 and in so far as positive law approximates to it, the ^ 
 arbitrary distinctions which the Roman Civil Law 
 maintained between classes of persons cease to have 
 a legal existence. The rule was one of considerable 
 importance to the Roman practitioner, who required 
 to be reminded that, wherever Roman jurisprudence 
 was assumed to conform itself exactly to the code of 
 Nature, there was no difference in the contemplation 
 of the Roman tribunals between citizen and foreigner, 
 between freeman and slave, between Agnate and Cog- 
 nate^The jurisconsultswho thus expressed themselves 
 most certainly never intended to censure the social 
 arrangements under which civil law fell somewhat 
 short of its speculative type ; nor did they apparently 
 believe that the world would ever see human society 
 completely assimilated to the economy of nature. 
 But when the doctrine of human eqviality makes its 
 appearance in a modern dress it has evidently clothed 
 itself with a new shade of meaning. Where the Ro- 
 man jurisconsult had written "sequales sunt," mean- 
 ing exactly what he said, the modern civilian wrote 
 \ " all men are equal " in the sense of " aU men ought 
 to be equal." The peculiar Roman idea that na- 
 tural law coexisted with civil law and gradually ab- 
 sorbed it, had evidently been lost sight of, ^or had 
 become unintelligible, and the words which had at 
 most conveyed a theory concerning the origin, com- 
 
94 HISTORY OP LAW OF IfATDBE. chap. 17. 
 
 position, and development of human institutions, were 
 beginning to express the sense of a great standing 
 wrong suffered by mankind. As early as the beginning 
 of the fourteenth century, the current language con- 
 cerning the birth-state of men, though visibly intended 
 to be identical with that of Ulpian and his contempo- 
 raries, has assumed an altogether, different form and 
 meaning. The preamble to the celebrated ordinance 
 of King Louis Hutin, enfranchising the serfs of the 
 royal domains, would have sounded strangely to 
 Roman ears. " Whereas, according to natural law, 
 everybody ought to be born free ; and by some usages 
 and customs which, from long antiquity, have been 
 introduced and kept until now in our realm, and per- 
 adventure by reason of the misdeeds of their prede- 
 cessors, many persons of our common people have 
 fallen into servitude, therefore. We," &c. This is the 
 enunciation not of a legal rule but of a political 
 dogma ; and from this time the equality of men is 
 spoken of by the Prench lawyers just as if it were a 
 political truth which happened to have been preserved 
 among the archives of their science. Like all other 
 deductions from the hypothesis of a Law Natural, and 
 like the belief itself in a Law of Nature, it was lan- 
 guidly assented to and suffered to have little influence 
 on opinion and practice untU it passed out of the 
 possession of the lawyers into that of the literary 
 men of the eighteenth century and of the public which 
 
CHAP. IV. DECLARATION OF INDEPE>T)ENCE 95 
 
 sat at their feet. With them it became the most 
 distinct tenet of their creed, and was even regarded as , 
 a summary of all the others. It is probable, however, 
 that the power which it ultimately acquired over the 
 events of 1789 was not entirely owing to its popularity 
 in France, for in the middle of the century it passed 
 over to America. The American lawyers of the 
 time, and particularly those of Virginia, appear to 
 have possessed a stock of knowledge which differed 
 cljiefly from that of their English contemporaries in 
 including much which could only have been derived 
 from the legal literature of continental Europe. A 
 very few glances at the writings of Jefferson will show 
 how strongly his mind was affected by the semi-juri- 
 dical, semi-popular opinions which were fashionable in 
 France, and we cannot doubt that it was sympathy 
 with the peculiar ideas of the French jurists which 
 led him and the other colonial lawyers who guided 
 the course of events in America to join the specially 
 French assumption that " aU men are bom equal " 
 with the assumption, more familiar to Englishmen, 
 that all men are born free, in the very first lines 
 of their Declaration of Independence. The passage 
 was one of great importance to the history of the 
 doctrine before us. The American lawyers, in thus 
 prominently and emphatically affirming the fun- 
 damental equality of human beings, gave an im- 
 pulse to political movements in their own country, 
 
96 HISTOET OP LAW OP IfATDEE. chat. it. 
 
 and in a less degree in Great Britain, which is far 
 from having yet spent itself ; but besides this they 
 returned the dogma they had adopted to its home in 
 France, endowed with vastly greater energy and en- 
 joying much greater claims on general reception and 
 respect. Even the more cautious politicians of the first 
 Constituent Assembly repeated Ulpian's proposition 
 as if it at once commended itself to the instincts and 
 intuitions of mankind ; and of all the " principles of 
 1789 " it is the one which has been least strenuously 
 assailed, which has most thoroughly leavened modern 
 opinion, and which promises to modify most deeply 
 the constitution of societies and the politics of ^states. 
 The greatest function of the Law of Nature was 
 discharged in giving birth to modern International 
 Law and to the modern Law of War, but this part 
 of its effects must here be dismissed with considera- 
 tion very unequal to its importance. 
 
 i Among the postulates which fonn the foundation 
 of International Law, 'H)r of so much of it as retains 
 the figure which it received fi-om its original archi- 
 tects, >tthere are two or three of pre-eminent import- 
 . ance. '^ The first of aU is expressed in the position 
 I that there is a determinable Law of Nature. \/ Gro- 
 tius and his successors took the assumption directly 
 from the Romans, but they differed widely from 
 the Roman jurisconsults and from each other in 
 their ideas as to the"mode of determination." The 
 
CliAj?. IV, INTERNATIONAL LAW. 97 
 
 ambition of almost every Publicist who has flourished 
 since the revival of letters has been to provide new 
 and more manageable definitions of Nature and of 
 her lawi and it is indisputable that the conception in 
 passing through the long series of writers on Public 
 Law has gathered round it a large accretion, con- 
 sisting of fragments of ideas derived from nearly 
 every theory of ethics which has in its turn taken 
 possession of the schools. [^Yet it is a remarkable 
 proof of the essentially historical character of the 
 conception that, after all the efiPbrts which have been 
 made to evolve the code of Nature from the necessary 
 characteristics of the natural state, so much of the 
 result is just what it would have been if men had 
 been satisfied to adopt the dicta of the Eoman 
 lawyers without questioning or reviewing them. V 
 Setting aside the Conventional or Treaty Law of 
 Nations, it is surprising how large a part of the 
 system is made up of pure Eoman law. Wherever 
 there is a doctrine of the jurisconsults affirmed by 
 them to be in harmony with the Jus Gentium, the 
 Pubhcists have foimd a reason for borrowing it, 
 however plainly it may bear the marks of a distinc- 
 tively Roman origin. We may observe too that the 
 derivative theories are afflicted with the weakness 
 of the primary notion. \/ In the majority of the 
 Publicists, the mode of thought is still "mixed," 
 In studying these writers, the great difficulty is 
 
 H 
 
93 HISTORY OF LAW OF NATURE. chap, it. 
 
 always to discover whether they are discussing law 
 or morality — ^whether the state of international re- 
 lations they describe is actual or ideal — whether 
 they lay down that which is, or that which, in their 
 opinion, ought to be. -^ 
 
 / The assumption that Natural Law is binding on 
 states inter se is the next in rank of those which 
 underlie International Law*/ A series of assertions or 
 admissions of this principle may be traced up to the 
 very infancy of modern juridical science, and at first 
 sight it seems a direct inference from the teaching of 
 the Romans. The civil condition of society being 
 distinguished from the natural by the fact that in the 
 first there is a distinct author of law, while in the 
 last there is none, it appears as if the moment a 
 number of units were acknowledged to obey no com- 
 mon sovereign or political superior they were thrown 
 back on the ulterior behests of the Law Natural? 
 States are such units; the hypothesis of their inde- 
 pendence excludes the notion of a common lawgiver, 
 and draws with it, therefore, according to a certain 
 range of ideas, the notion of subjection to the primeval 
 order of nature. The alternative is to consider in- 
 dependent communities as not related to each other 
 by any law, but this condition of lawlessness is ex- 
 actly the vacuum which the Nature of the juriscon- 
 sults abhorred. There is certainly apparent reason 
 for thinking that if the mind of a Roman lawyer 
 rested on any sphere fi"om which civil law was 
 
CHAP. rv. INTERNATIONAL LAW. 99 
 
 banished, it would instantly fiU the void with the 
 ordinances of Nature. It is never safe, however, to < 
 assume that conclusions, however certain and im- 
 mediate in our own eyes, were actually drawn at 
 any period of history. yNo passage has ever been ad- 
 duced from the remains of Roman law which, in my 
 judgmentji proves the jurisconsults to have believed 
 natural law to have obligatory force between inde- 
 pendent commonwealthsV and we cannot but see jthat 
 to citizens of the Roman empire, who regarded their 
 sovereign's dominions as conterminous with civili- 
 sation, the equal subjection of states to the Law of 
 Nature, if contemplated at all, must have seemed at 
 most an extreme result of curious speculation. The 
 truth appears to be that modem "International Law, 
 undoubted as is its descent from Roman law, is only 
 connected with it by an irregular filiation. v^The early 
 modern interpreters of the jurisprudence of Rome, 
 misconceiving the meaning of Jus Gentium, assumed 
 without hesitation that the Romans had bequeathed 
 to them a system of rules for the adjustment of 
 international transactions."/ This " Law of Nations " 
 was at first an authority which had formidable com- 
 petitors to strive with, and the condition of Europe 
 was long such as to preclude its universal reception. 
 Gradually, however, the western world arranged itself 
 in a form more favourable to the theory of the 
 civilians; circumstances destroyed the credit of rival 
 
100 HISTOEY OF LAW OF NATURE. chap. it. 
 
 doctrines; and at last, at a peculiarly felicitous con- 
 juncture, Ayala and Grotius were able to obtain for it 
 the enthusiastic assent of Europe, an assent which has 
 been over and over again renewed in every variety of 
 solemn engagement. The great men to whom its 
 triumph is chiefly owing attempted, it need scarcely be 
 said, to place it on an entirely new basis, and it is un- 
 questionable that in the course of this displacement 
 (they altered much of its structure, though far less 
 of it than is commonly supposed. \|Having adopted 
 
 ^ from the Antonine jurisconsults the position that the 
 Jus Gentium and the Jus Naturae were identical, ^ 
 
 xi Grotius^ with his immediate predecessors and his im- 
 mediate successors,'^attributed to the Law of Nature 
 an authority which would'^never perhaps "Ihave been 
 claimed for it^ if " Law of Nations " had not in that 
 age been an ambiguous expression. They laid down 
 unreservedly that Natural Law is the code of states, 
 and thusvput in operationi^a process which has con- 
 tinued almost down to our own day,v6he process of 
 engrafting on the international system rules which 
 are supposed to have been evolved from the un- 
 assisted contemplation of the conception of NatureV 
 There is, too, one consequence of immense practical 
 importance to mankind which, though not unknown 
 during the early modem history of Europe, was 
 never clearly or universally acknowledged till the 
 doctrines of the Grotian school had prevailed. If 
 
, OHAP. rv. INTEENATIONAL LAW. 101 
 
 fclie society of nations is governed by Natural Law, 
 Vthe atoms which compose it must be absolutely equal. 
 Men under the sceptre of Nature are all equal, and 
 accordingly commonwealths are equal if the inter- 
 national state be one of nature. / The proposition 
 that independent communities, however different in 
 size and power, are all equal in the view of the law 
 of nations, has largely contributed to the happiness 
 of mankind, though it is constantly threatened by 
 the political tendencies of each successive age. It 
 is a doctrine which probably would never have 
 obtained a secure footing at aU if International Law 
 had not been entirely derived from the majestic 
 claims of Natxire by the Publicists who wrote after 
 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 since Grotius's day bear to 
 the ingredients which have been simply taken from 
 the most ancient stratum of the Roman Jus Gentium. 
 Acquisition of territory has always been the great 
 spur of national ambition, and the rules which govern 
 this acquisition, together with the rules which mode- 
 rate the wars in which it too frequently results, are 
 ■ merely transcribed from the part of the Roman Law 
 which treats of the modes of acquiring property jure 
 gentium. These modes of acquisition were obtained 
 by the elder jurisconsults, as I have attempted to 
 
102 HISTOEY OF LAW OF NATURE. CHiP. TV. 
 
 explain, by abstracting a common ingredient from 
 the usages observed to prevail among the various 
 tribes surrounding Rome ; and, having been classed 
 on account of their origin in the " law commoiiL to 
 all nations," they were thought by the later lawyers 
 
 ^o fit in, on the score of their simplicity, with the 
 more recent conception of a Law Natural. They thus 
 made their way into the modern Law of Nations, and 
 the result is that those parts of the international 
 system which refer to dominion, its nature, its limi- 
 tations, the modes of acquiring and securing it, are 
 I pure Roman Property Law — so much, that is to say, 
 of the Roman Law of Property as the Antonine juris- 
 consults imagined to exhibit a certain congruity with 
 the natural state. ^In order that these chapters of 
 International Law may be capable of application, it is 
 
 \necessary that sovereigns should be related to eachj 
 other like the members of a group of Roman pro- 
 prietors. 7 This is another of the postulates which lie 
 at the threshold of the International Code, and it is 
 also one which could not possibly have been sub- 
 scribed to during the first centuries of modern 
 European history, v* I* is resolvable into the double 
 proposition that " sovereignty is territorial," i.e., that 
 it is always associated with the proprietorship of a 
 limited portion of the .earth's surface, and that "sove- 
 reigns inter se are to be deemed not paramount, but 
 absolute, owners of the state's territory." 
 
CHAP. IT. INTERNATIONAL LAW. 108 
 
 Many contemporary writers on International Law 
 tacitly assume that the doctrines of their system, , 
 founded on principles of equity and common sense, 
 were capable of being readily reasoned out in every 
 stage of modern civilisation. But this assumption, 
 while it conceals some real defects of the inter- 
 national theory, is altogether untenable so far us 
 regards a large part of modem history. It is not 
 true that the authority of the Jus Gentium in the 
 concerns of nations was always uncontradicted ; on 
 the contrary, it had to struggle long against the 
 claims of several competing systems. It is again 
 not true that the territorial character of sovereignty 
 was always recognised, for long after the dissolution 
 of the Roman dominion the minds of men were 
 under the empire of ideas irreconcileable with such 
 y a conception. An old order of things, and of views 
 founded on it, had to decay — a new Europe, and 
 an apparatus of new notions congenial to it, had to 
 spring up — before two of the chiefest postulates 
 of International Law could be universally con- 
 ceded. 
 
 It is a consideration well worthy to be kept in 
 view, that during a large part of what we usually 
 term modem history no such conception was enter- 
 tained as that of " territorial soverdgnty." [^Sove- 
 reignty was not associated with dominion over a 
 portion or subdivision of the earth. 1 The world had 
 
104 HISTOKY OF LAW OF NATURE. chav, rv. 
 
 Iain for bo many centuries under tlie shadow of 
 Imperial Eome as to have forgotten that distribu- 
 tion of the vast spaces comprised in the Empire 
 which had once parcelled them out into a nimiber of 
 independent commonwealths, claiming immunity from 
 extrinsic interference, and pretending to equality of 
 national rights, ^fter the subsidence of the bar- 
 barian irruptions, the notion-^ of sovereignty ^that 
 prevailed seems to have been twofold. On the one 
 hand it assumed the form of what may be called 
 " ^j'ie-sovereignty." The Franks, the Burgundians, 
 the Vandals, the Lombards, and Visigoths were 
 masters, of course, of the territories which they 
 occupied, and to which some of them have given a 
 geographical appellation; but they based no claim 
 of right upon the fact of territorial possession, and 
 indeed attached no importance to it whatever. vT^hey 
 appear to have retained the traditions which they 
 brought with them from the forest and the steppe, 
 and to have still been in their own view a patriarchal 
 society, a nomad horde, merely encamped for the time 
 upon the soil which afforded them sustenance, v Part 
 of Transalpine Gaul, with part of Germany, had now 
 become the country de facto occupied by the Franks 
 — ^it was France ; but the Merovingian line of chief- 
 tains, the descendants of Clovis, were not Kings of 
 France, they were Kings of the Franks. Territorial 
 titles were not unknown, but they seem at first to 
 
CHAP. rv. rERBITOEIAL SOVEEBIGNTY. 106 
 
 have come into use only as a convenient mode of 
 designating the ruler of a portion of the tribe's > 
 
 ^possessions ; the king of a whole tribe was king of 
 his people, not of his people's lands./' /Xhe alter- 
 native to this peculiar notion of sovereignty appears 
 to have been — and this is the important point — ^the 
 
 \^ea of universal dominion.*/ When a monarch de- 
 parted from the special relation of chief to clans- 
 men, and became solicitous, for purposes of his own, 
 to invest himself with a novel form of sovereignty, 
 the precedent which suggested itself for his adoption 
 was the domination of the Emperors of Rome. To 
 parody a common quotation, he became " aut Caesar 
 aut nvllus." Either he pretended to the full pre- 
 rogative of the Byzantine Emperor, or he had no 
 political status. In our own age, when a new dynasty 
 is desirous of obliterating the prescriptive title of a 
 deposed line of sovereigns, it takes its designafion 
 from the people, instead of the territory. Thus we 
 have Emperors and Kings of the French, and a King 
 of the Belgians. / At the period of which we have 
 been speaking, under similar circumstances, a differ- 
 ent alternative presented itself; The Chieftain who 
 would no longer call himself King of the tribe 
 must claim to be Emperor of the world. Thus, 
 when the hereditary Mayors of the Palace had 
 ceased to compromise with the monarchs they had 
 long since virtually dethroned, they soon became 
 
106 HISTCRY OF LAW OF NATURE. chap. rv. 
 
 unfiling to call themselves merely Kings of the 
 Franks, a title which belonged to the displaced 
 Merovings ; but they could not style themselves 
 Kings of France, for such a designation, though ap- 
 parently not unknown, was not a title of dignity. 
 Accordingly they came forward as aspirants to 
 universal empire. Their motive has been greatly 
 misapprehended. It has been taken for granted by 
 recent French writers that Charlemagne was far 
 before his age, quite as much in the character of his 
 designs as in the energy with which he prosecuted 
 them. Whether it be true or not that anybody is 
 at any time before his age, it is certainly true that 
 Charlemagne, in aiming at an unlimited dominion, 
 was emphatically taking the only course which the 
 characteristic ideas of his age permitted him to follow. 
 Of his intellectual eminence there cannot be a 
 question, but it is proved by his acts and not by his 
 theory. 
 
 The speculative universality of sovereignty long 
 continued to be associated with the Imperial throne, 
 and indeed was never thoroughly dissociated from it 
 so long as the empire of Germany lasted: (Territorial 
 sovereignty — the view which connects sovereignty 
 with the possession of a limited portion of the earth's 
 surface — ^was distinctly an oflFshoot, though a tardy 
 one, ot feudalism.^ iThis might have been expected a 
 priori, for it was feudalism which for the first time 
 
CHAP. IT. TBEEITOKIAL SOVEREIGNTY. 107 
 
 linked personal duties, and by consequence personal 
 rights, to the ownership of land. ^Whatever be the , 
 proper view of its origin and legal nature, the best 
 mode of vividly picturing to ourselves the feudal 
 organisation is to begin with the basis ; to consider 
 the relation of the tenant to the patch of soil which 
 created and limited his services — and then to mount 
 up, through narrowing circles of super-feudation, tiU 
 we approximate to the apex of the system. ) Where 
 that summit exactly was during the later portion 
 of the dark ages it is not easy to decide. Probably, 
 wherever the conception of tribe sovereignty had 
 really decayed, the topmost point was always assigned 
 to the supposed successor of the Caesars of the West. 
 But before long, when the actual sphere of Imperial 
 authority had immensely contracted, and when the 
 emperors had concentrated the scanty remains of 
 their power upon Germany and North Italy, the 
 highest feudal superiors in all the outlying portions 
 of the former Carloviagian empire found themselves 
 practically without a supreme head. Gradually they 
 habituated themselves to the new situation, and the 
 fact of immunity put at last out of sight the theory 
 of dependence ; but there are many symptoms that 
 this change was not quite easily accomplished ; and, 
 indeed, to the impression that in the nature of things 
 there must necessarily be a culminating domination 
 somewhere, we may, no doubt, refer the increasing 
 
108 HISTOEY OF LAW OF NATURE. chap. it. 
 
 tendency to attribute secular superiority to the See of 
 Rome. The completion of the first stage in the revo- 
 lution of opinion is marked, of course, by the accession 
 of the Capetian dynasty in France. Before that 
 epoch arrived, several of the holders of the great 
 territorial fiefs into which the Carlovingian empire 
 was now split up, had begun to call themselves 
 Kings, instead of Dukes or Counts ; but the impor- 
 tant change occurred when the feudal prince of a 
 limited territory surrounding Paris, usurped jfrom the 
 earlier house their dynastic title of Kings of the French. 
 Hugues Capet and his descendants were kings in 
 quite a new sense, sovereigns standing in the same 
 relation to the soil of France as the baron to his 
 estate, the tenant to his freehold ; and the old tribal 
 appellation, though long retained in the official Latin 
 style of the reigning house, passed rapidly, in the 
 vernacular, into Kings of France. The form of the 
 monarchy iu France had visible effects in hastening 
 changes which were elsewhere proceeding in the same 
 direction. ^The kingship of our Anglo-Saxon regal 
 houses was midway between the chieftainship of a 
 tribe and a territorial supremacy ; but the superiority 
 of the Norman monarchs, imitated from that of the 
 King of France, was distinctly a territorial sovereignty.] 
 Every subsequent dominion which was establishedl 
 or consolidated was formed on the later modd/ 
 Spain, Naples, and the principalities founded on the 
 
CHAr. IV. INTERNATIONAL LAW. 109 
 
 ruins of municipal freedom, in Italy, were all under 
 rulers whose sovereignty was territorial. Few things, , 
 I may add, are more curious than the gradual lapse 
 of the Venetians from one view to the other. At the 
 commencement of its foreign conquests, the republic 
 regarded itself as an antitype of the Roman common- 
 wealth, governing a number of subject provinces. 
 Move a century onwards, and you find that it wishes 
 to be looked upon as a corporate sovereign, claiming 
 the rights of a feudal suzerain over its possessions in 
 Italy and the -^gean. 
 
 During the period through which the popular ideas 
 on the subject of sovereignty were undergoing this 
 remarkable change, the system which stood in the 
 place of what we now call International Law was 
 heterogeneous in form and inconsistent in the prin- 
 ciples to which it appealed. Over so much of Europe 
 as was comprised in the Romano-German empire, the 
 connexion of the confederate states was regulated by 
 the complex and as yet incomplete mechanism of the 
 Imperial constitution ; and, surprising as it may seem 
 to us, it was a favourite notion of German lawyers 
 that the relations of commonwealths, whether inside 
 or outside the empire, ought to be regulated not by 
 the Jus Gentium, but by the. pure Roman jurispru- 
 dence of which Caesar was still the centre. This 
 doctrine was less confidently repudiated in the out- 
 lying countries than we might have supposed antece- 
 
110 mSTOEY OF LAW OF NATUKE. chap. iv. 
 
 dently ; but substantially, through the rest of Europe 
 feudal subordinations furnished a substitute for a 
 public law ; and when those were undetermined or 
 ambiguous, there lay behind, in theory at least, a 
 supreme regulating force in the authority of the head 
 of the Church. It is certain, however, that both 
 feudal and ecclesiastical influences were rapidly de- 
 caying during the fifteenth and even the fourteenth 
 century ; and if we closely examine the current pre- 
 texts of wars, and the avowed motives of alliances 
 it will be seen that, step by step with the displace- 
 ment of the old principles, the views afterwards har- 
 monised and consolidated by Aya la and Grotius were 
 making considerable progress, though it was silent 
 and but slow. Whether the fusion of aU the sources 
 of authority would ultimately have evolved a system 
 6f international relations, and whether that system 
 would have exhibited material differences from the 
 fabric of Grotius, is not now possible to decide, for 
 as a matter of fact the Reformation annihilated aJl 
 its potential elements except one. Beginning in 
 Germany, it divided the princes of the empire by a 
 gulf too broad to be bridged over by the Imperial 
 supremacy, even if the Imperial superior had stood 
 neutral. He, .however, was forced to take colour 
 with the Church against the reformers ; the Pope was, 
 as a matter of course, in the same predicament ; and 
 thus the two authorities to whom belonged the office 
 
CHAP. IV. GBOTIBS, 111 
 
 of mediation between combatants became themselves 
 the chiefs of one great faction in the schism of the 
 nations. Feudalism, already enfeebled and discredited 
 as a principle of public relations furnished no bond 
 whatever which was stable enough to countervail the 
 alliances of religion. In a condition, therefore, of 
 public law which was little less than chaotic, those 
 views of a state system to which the Roman juriscon- 
 sults were supposed to have given their sanction 
 alone remained standing. The shape, the symmetry, 
 and the prominence which they assumed in the hands 
 of Grotius are known to every educated man ; but 
 the great marvel of the Treatise "De Jure Belli et 
 Pacis," was its rapid, complete, and universal success. 
 The horrors of the Thirty Years' "War, the boundless 
 terror and pity which the unbridled licence of the 
 soldiery was exciting, must, no doubt, be taken to 
 explain that success in some measure, but they do 
 not wholly account for it. Very little penetration 
 into the ideas of that age is required to convince one 
 that, if the ground plan of the international edifice 
 which was sketched in the great book of Grotius had 
 not appeared to be theoretically perfect, it would 
 have been discarded by jurists and neglected by 
 statesmen and soldiers. 
 
 It is obvious that the speculative perfection of the 
 Grotian system is intimately connected with that 
 
lis HISTORY OF LAW OF NATURE. CHiOP. rv 
 
 conception of territorial sovereignty which we have 
 V been discussing, v The theory of International Law_ 
 assumes that commonwealths a re, relatively to each 
 other, in a state of nature ; but the component atoms 
 of a natural society must, by the fundamental as- 
 sumption, be insulated and independent of each 
 other. ,j If there be a higher powet connecting them, 
 however slightly and occasionally, by the claim of 
 common supremacy, the very conception of a com- 
 \/>mon superior introduces the notion of positive Law, 
 and excludes the idea of a law natural. J It, follows, 
 therefore, that if the universal suzerainty of an Im- 
 perial head had been admitted even in bare theory, 
 the labours of Grotius would have been idle. Nor 
 is this the only point of junction between modern 
 public law and those views of sovereignty of which 
 I have endeavoured to describe the development. I 
 have said that there are entire departments of intei'- 
 national jurisprudence which consist of the Roman 
 Law of Property. What then is the inference ? It 
 isj that if there had been no such change as I have 
 described in the estimate of sovereignty — ^if sove- 
 \reignty had not been associated with the proprietor- 
 ship of a limited portion of the earth, had not, in 
 other words, become territorial — ^three parts of the 
 Grotian theory would have been incapable of appli- 
 cation. 
 
CHAP. T. PKIMITIVE SOCIETY AND ANCIENT LAW. 118 
 
 CHAPTER V. 
 
 PRIMITIVE SOCIETY AND ANCIENT LAW. 
 
 The necessity of submitting the subject of jurispru- 
 dence to scientific treatment has never been entirely 
 lost sight of in modern times, and the essays which 
 the consciousness of this necessity has produced 
 have proceeded fi*om minds of very various calibre, 
 but there is not much presumption, I think, in as- 
 serting that what has hitherto stood in the place of 
 a science has for the most part been a set of guesses, 
 those very guesses of the Koman lawyers which were 
 examined in the two preceding chapters. A series 
 of explicit statements, recognising and adopting 
 these conjectural theories of a natural state, and of a 
 system of principles congenial to it, has been con- 
 tinued with but brief interruption from the days of 
 their inventors to our own. They appear in the 
 annotations of the Glossators who founded modern 
 jurisprudence, and in the writings of the scholastic 
 jurists who succeeded them. They are visible in 
 the dogmas of the canonists. They are thrust into 
 prominence by those civilians of marvellous erudi- 
 tion, who flourished at the revival of ancient letters.. 
 
XU PBIMITIVE SOCIETY AND AJVTCIBUJfT LAW. chaj?. v. 
 
 Grotius and his successors invested them not more 
 with brilliancy and plausibility than with practical 
 importance. They may be read in the introductory 
 chapters of our own Blackstone, who has transcribed 
 them textually from Burlamaqui, and wherever the 
 manuals published in the present day for the guid- 
 ance of the student or the practitioner begin with 
 any discussion of the first principles of law, it 
 always resolves itself into a restatement of the 
 Eoman hypothesis. It is however from the disguises 
 with which these conjectures sometimes clothe them- 
 selves, quite as much as from their native form, that 
 we gain an adequate idea of the subtlety with which 
 they mix themselves in human thought. The Lockeian 
 theory of the origin of Law in a Social Compact 
 scarcely conceals its Roman derivation, and indeed is 
 only the dress by which the ancient views were ren- 
 dered more attractive to a particular generation of 
 the modems ; but on the other hand the theory of 
 Hobbes on the same subject was purposely devised 
 to repudiate the reality of a law of nature as con- 
 ceived by the Romans and their disciples. Yet 
 these two theories, which long divided the reflecting 
 politicians of England into hostile camps, resemble 
 each other strictly in their fundamental assumption 
 df a non-historic, unverifiable, condition of the race. 
 Their authors differed as to the characteristics of the 
 prae-social state, and as to the nature of the abnormal 
 
/ 
 CHiP, V. MONTESQT^IEU. 115 
 
 action by which men lifted themselves out of it into 
 that social organisation with which alone we are 
 acquainted, but they agreed in thinking that a great 
 chasm separated man in his primitive condition from 
 man in society, and this notion we cannot doubt that 
 they borrowed, consciously or unconsciously, from 
 the Eomans. If indeed the phenomena of law be re- 
 garded in the way in which these theorists regarded 
 them — that is, as one vast complex whole — it is not 
 surprising that the mind should often evade the task 
 it has set to itself by falling back on some ingenious 
 conjecture which (plausibly interpreted) will seem to 
 reconcile eveiything, or else that it should sometimes 
 abjure in despair the labour of systematization. 
 
 From the theories of jurisprudence which have 
 the same speculative basis as the Koman doctrine 
 two of much celebrity must be excepted. The first 
 of them is that associated with the great name of 
 Montesquieu. Though there are some ambiguous 
 expressions in the early part of the Esprit des Lois, 
 which seem to show its writer's unwillingness to 
 break quite openly with the views hitherto popular, 
 the general drift of the book is certainly to indicate 
 a very different conception of its subject from any 
 which had been entertained before. It has often 
 been noticed that, amidst the vast variety of ex- 
 amples which, in its immense width of survey, it 
 sweeps together from supposed systems of juris- 
 
116 PRIMITIVE SOCIE'h; AND ANCIENT LAW, chap, v, 
 
 prudence, there is an evident anxiety to thrust 
 into especial prominence those manners and institu- 
 tions which astonish the civilised reader by then* 
 uncouthness, strangeness, or indecency. The in- 
 ference constantly suggested is, that laws are the 
 creatures of climate, local situation, accident, or im- 
 posture — ^the fruit of any causes except those which 
 appear to operate with tolerable constancy. Mon- 
 tesquieu seems, in fact, to have looked on the nature of 
 man as entirely plastic, as passively reproducing the 
 impressions, and submitting implicitly to the impulses, 
 which it receives from without. And here no doubt 
 lies the error which vitiates his system as a system. 
 He greatly underrates the stability of h uma n nature. 
 He pays little or no regard to the inheritedjualities^ 
 of the race, those qaaUties which each generation 
 receives from its predecessors, and transmits but 
 slightly altered to the generation which follows it. 
 It is quite true, indeed, that no complete account can 
 be given of social phenomena, and consequently of 
 laws, tiU due allowance has been made for those 
 modifying causes which are noticed in the Esprit des 
 Lois; but their number and their force appear to 
 have been over-estimated by Montesquieu. Many 
 of the anomalies which he parades have since been 
 shown to rest on false report or erroneous construc- 
 tion, and of those which remain not a few prove the 
 permanence rather than the variableness of man's 
 
CHAP. T. MONTESQUIEU AND BENTHAM. 117 
 
 uature, since they are relics of older stages of the 
 race which have obstinately defied the influences 
 that have elsewhere had effect. The truth is that 
 the stable part of our mental, moral, and physical 
 constitution is the largest part of it, and the resist- 
 ance it opposes to change is such that, though the 
 variations of human society in a portion of the world 
 are plain enough, they are neither so rapid nor so 
 extensive that their amount, character, and general 
 direction cannot be ascertained. An approximation 
 to truth may be all that is attainable with our 
 present knowledge, but there is no reason for think- 
 ing that it is so remote, or (what is the same thing) 
 that it requires so much future correction, as to be 
 entirely useless and uninstructive. 
 
 The other theory which has been adverted to is, 
 the historical theory of Bentham. This theory 
 which is obscurely (and, it might even be said, 
 timidly) propounded in several parts of Bentham's 
 works is quite distinct from that analysis of the con- 
 ception of law which he commenced in the " Frag- 
 ment on Government," and which was more recently 
 completed by Mr. John Austin. The resolution of a 
 law into a conunand of a particular nature, imposed 
 under special conditions, does not affect to do more 
 than protect us against a difficulty — a most formi- 
 dable one certainly — of language. The whole ques- 
 tion remains open as to the motives of societies in 
 
118 PEIMITIVE SOCIETY AND ANCIENT LAW. CHAP. t. 
 
 imposing these commands on themselves, as to the 
 connexion of these commands with each other, and 
 the nature of their dependence on those which pre- 
 ceded them, and which they have superseded. Ben- 
 tham suggests the answer that societies modify, and 
 have always modified, their laws according to jaod i- 
 fi cations of their views of general expediency. It is 
 difficult to say that this proposition is false, but it 
 certainly appears to be unfi-uitful. For that which 
 seems expedient to a society, or rather to the go- 
 verning part of it, when it alters a rule of law, is 
 surely the same thing as the object, whatever it may 
 be, which it has in view when it makes the change. 
 Expediency and the greatest good are nothing more 
 than different names for the impulse which prompts 
 the modification ; and when we lay down expediency 
 as the rule of change in law or opinion, aU we get 
 by the proposition is the substitution of an express 
 term for a term which is necessarily implied when we 
 say that a change takes place. 
 
 There is such wide-spread dissatisfaction with 
 existing theories of jurisprudence, and so general a 
 conviction that they do not really solve the questions 
 they pretend to dispose of, as to justify the suspicion 
 that some line of inquiry, necessary to a perfect 
 result, has been incompletely followed or altogether 
 omitted by their authors. And indeed there is one 
 remarkable omission with which aU these specula- 
 
CHAT. V. PEOPEE MODE OF INQUIET. 119 
 
 tions are chargeable, except pei'haps those of Mon- 
 \ tesquieu. They take no account of what law has < 
 actually been at epochs remote from the particular 
 period at which they made their appearance. Their 
 originators carefully observed the institutions of their 
 own age and civilisation, and those of other ages and 
 civiHsations with which they had some degree of 
 intellectual sympathy, but, when they turned their 
 attention to archaic states of society which exhibited 
 much superficial diflFerence from their own, they uni- 
 formly ceased to observe and began guessing. The 
 mistake which they committed is therefore analogous 
 to the error of one who, in investigating the laws of 
 the material universe, should commence by contem- 
 plating the existing physical world as a whole, in- 
 stead of beginning with the particles which are its 
 simplest ingredients. One does not certainly see 
 why such a scientific solecism should be more de- 
 fensible in jurisprudence than in any other region of 
 thought. It would seem antecedently that we ought 
 to commence with the simplest social forms in a 
 state as near as possible to their rudimentary condi- 
 tion. In other words, if we followed the course 
 usual in such inquiries, we should penetrate as far 
 up as we could m the history of primitive societies. 
 The phenomena which early societies present us with 
 are not easy at first to understand, but the difficulty 
 of grappling with them bears no proportion to the 
 
120 PBIMITIVE SOCIETY AND ANCIENT LAW. chap. t. 
 
 perplexities which beset us in considering the baffling 
 entanglement of modern social organisation. It is a 
 difficulty arising from their strangeness and un- 
 couthness, not fi'om their number and complexity. 
 One does not readily get over the surprise which 
 they occasion when looked at from a modern point 
 of view; but when that is surmounted they are few 
 enough and simple enough. But, even if they gave 
 more trouble than they do, no pains would be wasted 
 in ascertaining the germs out of which has assuredly 
 been unfolded every form of moral restraint which 
 controls our actions and shapes our conduct at the 
 present moment. 
 
 The rudime nts of the social state, so far as they are 
 knownJo,us at_all^re_iiKiwil.ihisughJ^es^^ of 
 three^sorts — accounts by contemporar y obse rvers of 
 ciyilisationg^less advanced than their own, the re- 
 cords which particular races have preserved concern- 
 ing theirprimitive histo ry, and ancient law. The first 
 kind of evidence is the best we could have expected. 
 As societies do not advance concurrently, but at dif 
 ferent rates of progress, there have been epochs at 
 which men trained to haibits of methodical observa- 
 tion have really been in a position to watch and de- 
 scribe the infancy of mankind. Tacitus made the most 
 of such an opportunity; but the Germany, unlike 
 most celebrated classical books, has not induced others 
 to follow the excellent example set by its author, and 
 
OHAP. V. THE GERMANY OF TACITUS. ]21 
 
 the amount of this sort of testimony which we pos- 
 sess is exceedingly small. The lofty contempt which 
 a civilised people entertains for barbarous neighbours 
 has caused a remarkable negligence in observing 
 them, and this carelessness has been aggravated at 
 times by fear, by religious prejudice, and even by 
 the use of these very terms — civilisation and bar- 
 barism — which convey to most persons the impres- 
 sion of a difference not merely in degree but in kind. 
 Even the Germany has been suspected by some 
 critics of sacrificing fidelity to poignancy of contrast 
 and picturesqueness of narrative. Other histories, 
 too, which have been handed down to us among the 
 archives of the people to whose infancy they relate 
 have been thought distorted by the pride of race or 
 by the religious sentiment of a newer age. It is 
 important then to observe that these suspicions, whe- 
 ther groundless or rational, do not attach to a great 
 deal of archaic law. Much of the old law which has 
 descended to us was preserved merely because it was 
 old. Those who practised and obeyed it did not 
 pretend to understand it ; and in some cases they 
 even ridiculed and despised it. They offered no 
 account of it except that it had come down to them 
 from their ancestors. If we confine our attention, 
 then, to those fragments of ancient institutions which 
 canilot reasonably be supposed to have been tampered 
 with, we are able to gain a clear conception of certain 
 
122 PRIMITIVE SOCIETY AOT) ANCIENT LAW. chap. v. 
 
 great characteristics of tlie society to which they 
 originally belonged. Advancing a step further, we 
 can apply our knowledge to systems of law which, 
 like the Code of Manu, are as a whole of suspicious 
 authenticity ; and using the key we have obtained, 
 we are in a position to discriminate those portions of 
 them which are truly archaic from those which have 
 been affected by the prejudices, interests, or ignorance 
 of the compiler. It will at least be acknowledged 
 that, if the materials for this process are sufficient, 
 and if the comparisons be accurately executed, the 
 methods followed are as little objectionable as those 
 which have led to such surprising results in com- 
 parative philology. 
 
 The effect of the evidence derived from compara- 
 tive jurisprudence is to establish that view of the 
 primaeval condition of the human race which is known 
 as the Patriarchal Theory. There is no doubt, of 
 course, that this theory was originally based on the 
 Scriptural history of the Hebrew patriarchs in Lower 
 Asia ; but, as has been explained already, its con- 
 nexion with Scripture rather militated than other- 
 wise against its reception as a complete theory, since 
 the majority of the inquirers who till recently ad- 
 dressed themselves with most earnestness to the colli- 
 gation of social phenomena, wei'e either influenced 
 by the strongest prejudice against Hebrew antiquities 
 or by the strongest desire to construct their system 
 
CHAP. V. SCBIPTURAL ACCOUNTS. 123 
 
 without the aesistance of religious records. Even now 
 there is perhaps a disposition to undervalue these 
 accounts, or rather to decline generalising from them, 
 as forming part of the traditions of a Semitic people. 
 It is to be noted, however, that the legal testimony 
 comes nearly exclusively from the institutions of 
 societies belonging to the Indo-European stock, the 
 Eomans, Hindoos, and Sclavonians supplying the 
 greater part of it ; and indeed the difficulty, at the 
 present stage of the inquiry, is to know where to stop, 
 to say of what races of men it is not allowable to lay 
 down that the society in which they are united was 
 originally organised on the patriarchal model. The 
 chief lineaments of such a society, as collected from 
 the early chapters in Genesis, I need not attempt to 
 depict with any minuteness, both because they are 
 familiar to most of us from our earliest childhood, 
 and because, from the interest once attaching to the 
 controversy which takes its name from the debate 
 between Locke and FUmer, they fill a whole chapter, 
 though not a very profitable one, in English litera- 
 ture. The points which lie on the surface of the 
 history are these :-£The eldest male parent — the 
 eldest ascendant — ^is absolutely supreme in his house- 
 hold. His dominion extends to life and death, and 
 is as unqualified over his children and their houses as 
 over his slaves ; indeed, the relations of sonship and 
 serfdom appear to difier in little beyond the higher 
 
124 PRIMITIVE SOCIETY AND ANCIENT LAW. chip. t. 
 
 capacity which the child in blood possesses of be- 
 coming one day the head of a family himself. The 
 flocks and herds of the children are the flocks and 
 herds of the father, and the possessions of the parent, 
 which he holds in a representative rather than in 
 a proprietary character, are equally divided at his 
 death among his descendants in the first degree, the 
 eldest son sometimes receiving a double share under 
 the name of birthright, but more generally endowed 
 with no hereditary advantage beyond an honorary 
 precedence^A less obvious inference from the Scrip- 
 tural accounts is that they seem to plant us on the 
 traces of the breach which is first effected in the 
 empire of the parent. The families of Jacob and 
 Esau separate and form two nations ; but the families 
 of Jacob's children hold together and become a people 
 This looks like the immature germ of a state or com- 
 monwealth, and of an order of rights superior to the 
 claims of family relation. 
 
 If I were attempting, for the more special purposes 
 of the jurist, to express compendiously the charac- 
 teristics of the situation in which mankind disclose 
 themselves at the dawn of their history, I should be 
 satisfied to quote a few verses from the Odyssey of 
 Homer : 
 
 Toiaiv S' ovT^ ayopai j3svXi}0opot ovrc 6e/i(trrti;, 
 
 . . . BentaTtiei Si tKaoroc 
 
 Toiiwv )}2' oKo^xiiiVf oih' ii\Kri\wv aXeyovinv, 
 
CHAP. V. PRIMITIVE SOCIETY, 126 
 
 " They have neither assemblies for consultation nor 
 tliemistes, but every one exercises jurisdiction over . 
 his wives and his children, and they pay no regard to 
 one another." These lines are applied to the Cyclops, 
 and it may not perhaps be an altogether fanciful 
 idea when I suggest that the Cyclops is Homer's 
 type of an alien and less advanced civilisation ; for 
 the almost physical loathing which a primitive com- 
 munity feels for men of widely different manners 
 from its own usually expresses itself by describing 
 them as monsters, such as giants, or even (which is 
 almost always the case in Oriental mythology) as 
 demons. However that may be, the verses condense 
 in themselves the sum of the hints which are given 
 us by legal antiquities. Men are first seen distributed •- 
 in perfectly insulated groups, held together by obe- 
 dience to the parent. Law is the parent's word, but 
 it is not yet in the condition of those themistes which 
 were analysed in the first chapter of this work. 
 When we go forward to the state of society in which 
 these early legal conceptions show themselves as 
 formed, we find that they still partake of the mystery 
 and spontaneity which must have seemed to charac- 
 terise a despotic father's commands, but that at the 
 same time, inasmuch as they proceed fi"om a sovereign, 
 they presuppose a union of family groups in some 
 wider organisation. The next question is, what is the 
 nature of this union and the degree of intimacy which 
 
126 PRIMITIVE SOCIETY AND ANCIENT LAW. chap, v, 
 
 it involves ? It is just here that archaic law renders 
 us one of the greatest of its services, and fills up a gap 
 which otherwise could only have been bridged by con- 
 jecture. It is full, in all its provinces, of the clearest 
 indications that society in primitive times was not 
 what it is assumed to be at present, a^ collectio n of 
 mdividuals . In fact, and in the view of the men 
 who composed it, i t was an aggregation of familie s. 
 [The c ontrast may be most forcib ly,, expressed by 
 saying that the unit of an ancient society_was the 
 •'^S£^Zi_J9^ ^- ffiPA^EW- society jthe^indiyidual. We 
 must be prepared to find in ancient law all the con- 
 sequences of this difference. It is so frame,dr as to 
 be adjusted to a system of small independent cor- 
 •porations. It is therefore scanty, because it is sup- 
 plemented by the despotic commands of the heads 
 ^ of households. It is ceremonious, because the trans- 
 actions to which it pays regard resemble interna- 
 tional concerns much more than the quick play of 
 intercourse between individuals. Above all, it has 
 a peculiarity of which the full importance cannot 
 be shown at present. It takes a view of life wholly 
 unlike any which appears in developed jurisprudence. 
 /'Corporations never die, and accordingly primitive law 
 considers the entities with which it deals, i.e., the 
 patriarchal or family groups, as perpetual and inex- 
 tinguishable. This view is closely allied to the pecu- 
 liar aspect under which, in very ancient times, moral 
 
CHAP. V. EARLY MOEAL DOCTRINES. 127 
 
 attributes present themselves. The moral elevation 
 and moral debasement of the individual appear to be 
 confounded with, or postponed to, the merits and 
 oflfences of the group to which the individual belongs. 
 
 |If the community sins, its guilt is much more than 
 the sum of the offences committed by its members j 
 the crime is a corporate act, and extends in its con- 
 sequences to many more persons than have shared in 
 its actual perpetration^ |lf, on the other hand, the 
 individual is conspicuously guUty, it is his children, 
 his kinsfolk, his tribesmen, or his fellow-citizens who 
 suffer with him, and sometimes for him.J It thus 
 happens that the ideas of moral responsibility and 
 retribution often seem to be more clearly realised at 
 very ancient than at more advanced periods, for, as 
 the family group is immortal, and its liability to 
 punishment indefinite, the primitive mind is not per- 
 plexed by the questions which become troublesome 
 as soon as the individual is conceived as altogether 
 separate from the group. One step in the transition 
 fi-om the ancient and simple view of the matter to the 
 theological or metaphysical explanations of later days 
 is marked by the early Greek notion of an inherited 
 curse. The bequest received by his posterity from 
 the original criminal was not a liability to punish- 
 ment, but a liability to the commission of firesh 
 offences which drew with them a condign retribution ; 
 
 / and thus the responsibility of the family was reconciled 
 
y 
 
 128 PEIMITIVE SOCIETY AND ANCIKNT LAW. chap. t. 
 
 with the newer phase of thought which limited the 
 consequences of crime to the person of the actual 
 delinquent.! 
 
 It would be a very simple explanation of the origin 
 of society if we could base a general conclusion on the 
 hint furnished us by the Scriptural example already 
 adverted to, and could suppose that communities be- 
 gan to exist wherever a family held together instead 
 of separating at the death of its patriarchal chieftain. 
 In most of the Greek states and in Rome there 
 long remained the vestiges of an ascending series of 
 groups out of which the State was at first constituted. 
 The Family, House, and Tribe of the Romans may be 
 taken as the type of them, and they are so described 
 to us that we can scarcely help conceiving them as a 
 system of concentric circles which have gradually 
 expanded from the same point. The elementary 
 group is the Family, connected by common subjection 
 to the highest male ascendant. [ The aggregation of 
 Families forms the Gens or House. The aggregation 
 of Houses makes the Tribe. The aggregation of Tribes 
 constitutes the commonwealth} Are we at liberty to 
 foUow these indications, and to lay down that the 
 commonwealth is a collection of persons united by 
 common descent from the progenitor of an original 
 family? Of this we may at least be certain, that all 
 ancient societies regarded themselves as having pro- 
 ceeded from one original stock, and even laboured 
 
can. T. EARLY POLITICAL IDEAS. 129 
 
 under an incapacity for comprehending any reason 
 except this for their holding together in political 
 union. Th e history of poli tical ideas begins, in fact,! 
 with the assumption that ki:Ship in"Wood is the sole/ 
 possible groimd of community in political functions^! 
 nor is there any of those subversions of feeling, which 
 we term emphatically revolutions, so startling and so 
 complete as the change which is accomplished when 
 some other principle — such as that, for instance, of 
 local contiguity — establishes itself for the first time 
 as the basis of common political action. It may be 
 affirmed, then, of early commonwealths that their citi- 
 zens considered aU the groups in which they claimed 
 membership to be founded on common lineage. 
 What was obviously true of the Family was beheved 
 to be true first of the House, next of the Tribe, lastly 
 of the State. And yet we find that along with this 
 belief, or, if we may use the word, this theory, each 
 community preserved records or traditions which 
 distinctly showed that the fundamental assumption 
 was false. Whether we look to the Greek States, or 
 to Rome, or to the Teutonic aristocracies in Ditmarsh 
 which furnished Niebuhr with so many valuable 
 illustrations, or to the Celtic clan associations, or to 
 that strange social organisation of the Sclavonic 
 Russians and Poles which has only lately attracted 
 notice, everywhere we discover traces of passages 
 in their history when men of alien descent were 
 
130 PBIMITIVB SOCIETT AND ANCIENT LAW. chap. t. 
 
 admitted to, and amalgamated with, the original 
 brotherhood. Adverting to Rome singly, we perceive 
 that the primary group, theJFamily, was being con- 
 stantly adulterated by the practice of adoption, whUe 
 stories seem to have been always current respecting 
 the exotic extraction of one of the original Tribes, and 
 concerning a large addition to the Houses made by 
 one of the early kings. The composition of the state 
 uniformly assumed to be natural was nevertheless 
 known to be in great measure artificial. This con- 
 flict between belief or theory and notorious fact is at 
 first sight extremely perplexing ; but what it really 
 illustrates is the efficiency with which Legal Fictions 
 do their work in the infancy of society. The earliest 
 and most extensively employed of legal fictions was 
 that which permitted family relations to be created 
 artificially, and there is none to which I conceive 
 mankind to be more deeply indebted. If it had never 
 existed, I do not see how any one of the primitive 
 groups, whatever were their nature, could have ab- 
 sorbed another, or on what terms any two of them 
 could have combined, except those of absolute superi- 
 ority on one side and absolute subjection on the other. 
 No doubt, when with our modern ideas we contem- 
 plate the union of independent communities, we can 
 suggest a hundred modes of carrying it out, the 
 simplest of all being that the individuals comprised 
 in the coalescing groups shall vote or act together 
 
CHAP. V. riCTION OF ADOPTION. 131 
 
 according to local propinquity ; but the idea that a 
 number of persons should exercise political rights in 
 common simply because they happened to live within 
 
 te same topographical limits was utterly strange and - 
 onstrous to primitive antiquity. The expedient 
 which in those times commanded favour was that the 
 incoming population should fei gn , th^m^^ves^ be 
 desce nd^ed^from. the same stock_a& -the pec^le-on- 
 who m they were engrafted ; and it is precisely the 
 good faith of this fiction, and the closeness with 
 which it seemed to imitate reality, that we cannot 
 now hope to understand. One circumstance, how- 
 ever, which it is important to recoUect, is that the 
 men who formed the various political groups were 
 certainly in the habit of meeting together periodically 
 for the purpose of acknowledging and consecrating 
 their association by common sacrifices. Strangers 
 amalgamated with the brotherhood were doubtless 
 admitted to these sacrifices ; and when that was once 
 done, we can believe that it seemed equally easy, or 
 not more difficult, to conceive them as sharing in the 
 common lineage. The conclusion, then, which is sug- 
 gested by the evidence is, not that all early societies 
 were formed by descent fi-om the same ancestor, but 
 that all of them which had any permanence and 
 solidity either were so descended or assumed that they 
 were. An indefinite number of causes may have 
 shattered the primitive groups, but wherever their 
 
132 PRIMITIVE SOCIETY AND AXCIENT LAW. ca4P. v. 
 
 ingredients recombined. it was on the model or prin- 
 ciple of an association of kindred. Whatever were the 
 fact, all thought, language, and law adjusted them- 
 selves to the assumption. But though all this seems 
 to me to be established with reference to the commu- 
 nities with whose records we are acquainted, the 
 remainder of their history sustains the position before 
 laid down as to the essentially transient and termi- 
 nable influence of the most powerful Legal Fictions. 
 At some point of time — ^probably as soon as they felt 
 themselves strong enough to resist extrinsic pres- 
 sure — all these states ceased to recruit themselves 
 by factit ious^extensions of consanguinity. They ne- 
 cessarily, therefore, became Aristocracies, in all cases 
 where a fresh population from any cause collected 
 around them which could put in no claim to com- 
 munity of origin. Their sternness in maintaining the 
 central principle of a system under which political 
 rights were attainable on no terms whatever except 
 connexion in blood, real or artificial, taught their 
 inferiors another principle, which proved to be en- 
 dowed with a far higher measure of vitality. This 
 was the principle of local contiguity^ now recognised 
 everywhere as the condition of community in poli- 
 tical functions. A new set of political ideas came at 
 once into existence, which, being those of ourselves, 
 our contemporaries, and in great measure of our 
 ancestors, rather obscure our perception of the older 
 theory which they vanquished and dethroned. 
 
CHAP. T. THE ANCIENT FAMIl.Y. i^ 
 
 / 
 
 The family, then, is the type of an archaio^ciety 
 in all the modifications which it was capable of* 
 assuming ; but the family here spoken of is not 
 exactly the family as understood by a modftm. In 
 order to reach the ancient conception we must give 
 to our modem ideas an important extension and an 
 inportant limitation. We must look on the family 
 as constantly enlarged by the absorption of strangers 
 within its circle, and we must try to regard the 
 fiction of adoption as so closely simulating liie reality 
 - of kinship that neither law nor opinion makes the' 
 'slightest difference between a real and an adoptive 
 " connexion. On the other hand, the persons theo- 
 retically amalgamated into a family by their common 
 descent are practically held together by common obe- 
 dience to their highest living ascendant, the father, 
 grandfather, or great-grandfather. The patriarchal 
 authority of a chieftain is as necessary an ingredient 
 in the notion of the family group as the fact (or as- 
 sumed fact) of its having sprung from his loins ; and 
 hence we must understand that if there be any per- 
 sons who, however truly included in the brotherhood 
 by virtue of their blood-relationship, have neverthe- 
 less de facto withdrawn themselves from the empire 
 of its ruler, they are always, in the beginnings of 
 law, considered as lost to the family. It is this 
 patriarchal aggregate — ^the modem family thus cut 
 down on one side and extended on the other — ^which 
 
^M PRIMITIVE SOCIETY AND ANCIENT LAV. chap. t. 
 
 meets us on the threshold of primitive jurisprudence. 
 Older, probably, than the State, the Tribe, and the 
 House, it left traces of itself on private law long after 
 the House and the Tribe had been forgotten, and long 
 after cdmsanguinity had ceased to be associated with 
 the cojnposition of States. It will be found to have 
 stamped itself on all the great departments of juris- 
 prudejice, and may be detected, I think, as the true 
 source of many of their most important and most 
 durable characteristics. At the outset, the pecu- 
 liarities of law in its most ancient state lead us 
 irresistibly to the conclusion that it took precisely 
 the same view of the family group which is taken of 
 individual men by the systems of rights and duties 
 now prevalent throughout Europe. There are socie- 
 ties open to our observation at this very moment 
 whose laws and usages can scarcely be explained 
 unless they are supposed never to have emerged from 
 this primitive condition ; but in communities more 
 fortunately circumstanced the fabric of jurisprudence 
 fell gradually to pieces, and if we carefully observe 
 the disintegration we shall perceive that it took place 
 principally in those portions of each system which 
 were most deeply aflfected by the primitive conception 
 of the family. In one all-important instance, that of 
 the Roman law, the change was eflFected so slowly, 
 that from epoch to epoch we can observe the line and 
 direction which it followed, and can even give some 
 
CHAP. V. THE PATRIA POTESTAS. 135 
 
 idea of the ultimate result to wHch it was tending. 
 And in pursuing this last inquiry we need not suf- • 
 fer ourselves to be stopped by the imaginary barrier 
 which separates the modern from the ancient world. 
 For one eflfect of that mixture of refined Roman law 
 with primitive barbaric usage, which is known to us 
 by the deceptive name of feudalism, was to revive 
 many features of archaic jurisprudence which had 
 died out of the Roman world, so that the decom- 
 position which had seemed to be over commenced 
 again, and to some extent is still proceeding. 
 
 On a few systems of law the family organisation of 
 the earliest society has left a plain and broad mark in 
 the life-long authority of the Father or other ancestor 
 over the person and property of his descendants, an 
 authority which we may conveniently call by its later 
 Roman name of Patria Potestas. No feature of the 
 rudimentary associations of mankind is deposed to by 
 a greater amount of evidence than this, and yet none 
 seems to have disappeared so generally and so rapidly 
 from the usages of advancing communities. Gains, 
 writing under the Antonines,' describes the institu- 
 tion as distinctively Roman. It is true that, had he 
 glanced across the Rhine or the Danube to those 
 tribes of barbarians which were exciting the curiosity 
 of some among his contemporaries, he would have seen 
 examples of patriarchal power in its crudest fonn; 
 and in the far East a branch of the same ethnical 
 
130 PEIMITIATi: SOCIETY AND ANCIEJS'T LAW. chap. v. 
 
 stock from whicL. the Romans sprang was repeating 
 their Patria Potestas in some of its most technical 
 incidents. But among the races understood to be 
 comprised within the Roman empire, Gaius could 
 find none which exhibited an institution resembling 
 the Roman " Power of the Father," except only the 
 Asiatic Galatse. There are reasons, indeed, as it seems 
 to me, wh}' the direct authority of the ancestor should, 
 in the greater number of progressive societies, very 
 shortly assume humbler proportions than belonged to 
 it in their earliest state. The implicit obedience of rude 
 men to their parent is doubtless a primary fact, which 
 it would be absurd to explain away altogether by 
 attributing to them any calculation of its advantages ; 
 but, at the same time, if it is natural in the sons to 
 obey the father, it is equally natural that they should 
 look to him for superior strength or superior wisdom. 
 Hence, when societies are placed under circumstances 
 which cause an especial value to be attached to 
 bodily and mental vigour, there is an influence at 
 work which tends to confine the Patria Potestas to 
 the cases where its possessor is actually skilful and 
 strong. When we obtain our first glimpse of orga- 
 nised Hellenic society, it seems as if supereminent 
 wisdom would keep alive the father's power in per- 
 sons whose bodily strength had decayed ; but the 
 relations of Ulysses and Laertes in the Odysaey appear 
 to show that, where extraordmary valour and sagacity 
 
CHAP. y. THE PATRIA POTESTAS. 137 
 
 were united in the son, the father in the decrepitude 
 of age was deposed from the headship of the family. 
 In the mature Greek jurisprudence, the rule advances 
 a few steps on the practice hinted at in the Homeric 
 literature ; and though very many traces of stringent 
 family obligation remain, the direct authority of the 
 parent is limited, as in European codes, to the non- 
 age or minority of the children, or, in other words, 
 to the period during which their mental and physical 
 inferiority may always be presumed. The Roman 
 law, however, with its remarkable tendency to inno- 
 vate on ancient usage only just so far as the exigency 
 of the commonwealth may require, preserves both 
 the primeval institution and the natural limitation to 
 which I conceive it to have been subject. In every 
 relation of life in which the collective community 
 might have occasion to avail itself of his wisdom and 
 strength, for all purposes of counsel or of war, the 
 Filius Familias, or Son under Power, was as free as his 
 father. It was a maxim of Roman jurisprudence 
 that the P atria Potestas did not extend to the Jus 
 Publicum. Father and son voted together in the 
 city, and fought side by side in the field; indeed, the 
 son, as general, might happen to 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 a domestic despotism 
 which, considering the severity it retained to the 
 
138 PRIMITIVE SOCIETY AND AlfCIBJ!fT LAW, chap. T. 
 
 last, and the number of centuries through which it 
 endured, constitutes one of the strangest problems 
 in legal history. 
 
 The Patri a Potestas of the RoDM|nSj jwluchisneces- 
 sarU^our type..of_:^be. pri meval paternal authority, i s 
 equally difficult to understand as an institution of 
 civilised life, whether we consider its incidence on the 
 person or its effects on property. It is to be regretted 
 that a chasm which exists in its history cannot be 
 more completely filled. So far as regards the per- 
 son, ^£.^iar^t, when our information commences^ms 
 
 , over his children thj^ jiis viits^Mdsgm, the power of 
 life and death, and a fortiori of uncontrolled, corporal 
 chastisement; he can modify their personal condition 
 at pleasure ; he can give a wife to his son; he can give 
 his daughter in marriage; he can divorce his children 
 of either sex ; he can transfer them to another family 
 by adoption; and he can sell themj Late in the Im- 
 perial period we find vestiges of all these powers, but 
 
 ■^they are reduced within very narrow limits. The un- 
 qualified right of domestic chastisement has become 
 a right of bringing domestic offences imder the cog- 
 nisance of the civil magistrate; the privilege of dic- 
 tating marriage has decHned into a conditional veto ; 
 the liberty of selling has been virtually abolished, 
 and adoption itself, destined to lose almost all its 
 ancient importance in the reformed system of Justi- 
 nian, can no longer be effected without the assent of 
 
CHAP. r. THE PATEIA POTESTAS. 139 
 
 the child transferred to the adoptive parentage. In 
 short, we are brought very close to the verge of the 
 ideas which have at length prevailed in the modern 
 world. But between these widely distant epochs 
 there is an interval of obscurity, and we can only 
 guess at the causes which permitted the Patria Potestas 
 to last as long as it did by rendering it more tolerable 
 than it appears. The active discharge of the most 
 important among the duties which the son owed to the 
 state must have tempered the authority of his parent, 
 if they did not annul it. We can readily persuade 
 [ourselves that the paternal despotism could not be 
 brought into play, without great scandal, against a 
 man of full age occupying a high civil office. During 
 the earlier history, however, such cases of practical 
 emancipation would be rare compared with those 
 which must have been created by the constant wars 
 of the Roman republic. The military tribune and 
 the private soldier, who were in the field three-quar- 
 ters of a year during the earlier contests, at a later 
 period the proconsul in charge of a province, and the 
 legionaries who occupied it, cannot have had practical 
 reason to regard themselves as the slaves of a despotic 
 master; and all these avenues of escape tended con- 
 stantly to multiply themselves. Victories led to 
 conquests, conquests to occupations; the mode of 
 occupation by colonies was exchanged for the system 
 of occupying provinces by standing armies. Each 
 
140 PEIIIITIVE SOCIETy AND ANCIENT LAW. chap. v. 
 
 step in advance was a call for the expatriation of 
 more Roman citizens, and a fresh draft on the blood 
 of the failing Latin race. We may infer, I think, 
 that a strong sentiment in favour of the relaxation 
 of the Patria Potestas had become fixed by the time 
 that the pacification of the world commenced on 
 the establishment of the Empire. The first serious 
 blows at the ancient institution are attributed to the 
 earlier Caesars, and some isolated interferences of 
 
 G Trajan and Hadrian seem to have prepared the 
 ground for a series of express enactments which, 
 though we cannot always determine their dates, we 
 know to have limited the father's powers on the one 
 hand, and on the other to have multiplied facilities 
 for their voluntary surrender. The older mode of 
 
 \getting rid of the Potestas, by effecting a triple sale 
 of the son's person, is evidence, I may remark, of a 
 very early feeling against the unnecessary prolonga- 
 tion of the powers. The rule which declared that the 
 son should be free after having been three times sold 
 by his father seems to have been originally meant 
 to entail penal consequences on a practice which 
 revolted even the imperfect morality of the primitive 
 Roman. But even before the publication of the 
 Twelve Tables, it had been turned, by the ingenuity 
 of the jurisconsults, into an expedient for destroying 
 the parental authority wherever the father desired 
 that it should cease. 
 
CHAP. V. THE PATEIA POTESTAS. 141 
 
 l_ Many of the causes which helped to mitigate the 
 stringency of the father's power over the persons of 
 his children are doubtless among those which do not 
 lie upon the face of histor^ We cannot tell how 
 far public opinion may have paralysed an authority 
 which the law conferred; or how far natural affection 
 may have rendered it endurable. But though the 
 powers over the person may have been latterly no- 
 minal, the whole tenour of the extant Roman juris- 
 prudence suggests that the father's rights over the 
 son's property were always exercised without scruple 
 to the full extent to which they were sanctioned by 
 law. There is nothing to astonish us in the latitude 
 of these rights when they first show themselves. 
 AThe ancient law of Rome forbade the Children under 
 / Power to hold property apart from their parent, or 
 ^ (we should rather say) never contemplated the pos- 
 sibility of their claiming a separate ownership. The 
 father was entitled to take the whole of the son's 
 acquisitions, and to enjoy the benefit of his contracts, 
 without being entangled in any compensating Ha- 
 bilityV' So much as this we should expect from the 
 constitution of the earliest Roman society ; for we 
 can hardly form a notion of the primitive family 
 group unless we suppose that its members brought 
 their earnings of all kinds into the common stock, 
 while they were unable to bind it by improvident 
 individual engagements. The true enigma of the 
 
142 PBIMITIVE SOCIETT AND ANCIENT LAW. chap, t, 
 
 Patria Potestas does not reside here, but in the bIow- 
 
 fness with which these proprietary privileges of the 
 parent were curtailed, and in the circumstance that, 
 before they were seriously diminished, the whole 
 civilised world was brought within their sphere. No 
 '\ innovation of any kind was attempted tUl the first 
 years of the Empire, when the acquisitions of soldiers 
 on service were withdrawn from the operation of the 
 Patria Potestas, doubtless as part of the reward of 
 the armies which had overthrown the free common- 
 wealth. Three centuries afterwards the same immu- 
 nity was extended to the earnings of persons who 
 were in the civil employment of the state. Both 
 changes were obviously limited in their application, 
 and they were so contrived in technical form as 
 to interfere as little as possible with, the principle 
 of Patria Potestas. A certain qualified and dependent 
 ownership had always been recognised by tbe Roman 
 law in the perqu isites and savings which slaves and 
 sons under power were not compelled to include in 
 the household accounts, and the special name of this 
 permissive property, Pejulium . was applied to the ac- 
 quisitions newly relieved fi*om Patria Potestas, which 
 were called in the case of soldiers Castrense Peculium, 
 and Quasi-castrense Peculium in the case of civil ser- 
 vants. Other modifications of the parental privileges 
 followed, which showed a less studious outward 
 respect for the ancient principle Y Shortly after the 
 
 { 
 
OHAI. T. THE PATKIA POTESrAS. 143 
 
 introduction of tlie Quasi-castrense Peculium, Con- 
 stantine the Great took away the father's absolute 
 control over property which his children had inherited 
 from their motjier, and reduced it to a usufruct^ or 
 life-interest. lA. few more changes of slight import- 
 ance followed in the Western Empire, but the furthest 
 point reached was in the East, under Justinian, who 
 jCTiacted that unless the acquisitions of the child were 
 derived from the parent's own property, the parent's 
 right over them should not extend beyond enjoy- 
 ing their produce for the period of his life. Even 
 this, the utmost relaxation of the Roman Patria 
 Potestas, left it far ampler and severer than any 
 analogous institution of the modern world. The 
 earliest modern writers on jurisprudence remark that 
 it was only the fiercer and ruder of the conquerors 
 of the Empire, and notably the nations of Sclavonic 
 origin, which exhibited a Patria Potestas at aU re- 
 sembling that which was described in the Pandects 
 and the Code. . All the Germanic immigrants seem 
 to have recognised a corporate union of the family 
 under the mund, or authority of a patriarchal chief; 
 but his powers are obviously only the relics of a de- 
 cayed Patria Potestas, and fell far short of those 
 enjoyed by the Roman father. The Franks are 
 particularly mentioned as not having the Roman 
 Institution, and accordingly the old French law- 
 yers, even when most busily engaged in filling the 
 
144 PSIMITIVE SOCIETY AND ANCIENT LAW. chap, v 
 
 interstices of barbarous customs with rules of Roman 
 law, were obliged to protect themselves against the 
 intrusion of the Potestas by the express maxim, 
 Puyssance de pere en France rCa lieu. The tenacity 
 I of the Romans in maintaining this relic of their most 
 ancient condition is in itself remarkable, but it is less 
 remarkable than the diffusion of the Potestas over 
 the whole of a civilisation from which it had once 
 disappeared. While the Castrense Peculium consti- 
 tuted as yet the sole exception to the father's power 
 over property, and while his power over his children's 
 persons was still extensive, the Roman citizenship, 
 and with it the Patria Potestas, were spreading into 
 every corner of the Empire. Every African or 
 Spaniard, every Gaul, Briton, or Jew, who received 
 this honour by gift, purchase, or inheritance, placed 
 himself under the Roman Law of Persons, and, though 
 our authorities intimate that children bom before the 
 acquisition of citizenship could not be brought under 
 Power against their will, children born after it and 
 all ulterior descendants were on the ordinary footing 
 of a Roman fiLius familias. It does not fall within the 
 province of this treatise to examine the mechanism of 
 the later Roman society, but I may be permitted to 
 remark that there is little foundation for the opinion 
 \ which represents the constitution of Antoninus Cara- 
 calla conferring Roman citizenship on the whole of 
 his subjects as a measure of small importance. How- 
 
CHAP. V. THE I'ATEIA POTESTAS. 146 
 
 ever we may interpret it, it must have enormously 
 enlarged tte sphere of the Patria Potestas, and it 
 seems to me that the tightening of family relations 
 which it ettected is an agency which ought to be kept 
 in view more than it has been, in accounting for the 
 great moral revolution which was transforming the 
 worldy/ 
 
 Before this branch of our subject is dismissed, 
 it should be observed that the Paterfamilias was 
 answerable for the delicts (or torts) of his Sons under 
 Power. He was similarly liable for the torts of his 
 slaves; but in both cases he originally possessed the 
 singular privilege of tendering the delinquent's person 
 in full satisfaction of the damage. The responsibility 
 thus incurred on behalf of sons, coupled with the 
 mutual incapacity of Parent and Child under Power 
 to sue one another, has seemed to some jurists to 
 be best explained by the assumption of a " unity of 
 person" between the Paterfamilias and the FUius- 
 familias. In the Chapter on Successions I shall at- 
 tempt to show in what sense, and to what extent, this 
 " unity " can be accepted as a reality. I can only say 
 at present that these responsibilities of the Paterfami- 
 lias, and other legal phenomena which will be discussed 
 hereafter, appear to me to point at certain duties of 
 the primitive Patriarchal chieftain which balanced his 
 rights. I conceive that, if he disposed absolutely cf 
 the persons and fortunes of his clansmen, this repre- 
 
146 PBIMITIVE SOCIETY AND ANCIENT LAW. cvlb. t, 
 
 sentative ownership was coextensive with a liability 
 to provide for all members of the brotherhood out of 
 the common fund. The diflSculty is to throw our- 
 selves out of our habitual associations sufficiently for 
 conceiving the nature of his obligation. It was not 
 a legal duty, for law had not yet penetrated into the 
 precinct of the Family. To call it moral is perhaps 
 to anticipate the ideas belonging to a later stage of 
 mental development; but the expression "moral 
 obligation " is significant enough for our purpose, if 
 we understand by it a duty semi-consciously followed 
 and enforced rather by instinct and habit than by 
 definite sanctions. 
 
 The Patria Potestas, in its normal shape, has not 
 been, and, as it seems to me, could not have been, a 
 generally durable institution. The proof of its former 
 universality is therefore incomplete so long as we 
 consider it by itself ; but the demonstration may be 
 carried much further by examining other departments 
 of ancient law which depend on it ultimately, But not 
 . by a thread of connexion visible in all its parts or to 
 all eyes. Let us turn for example to Kinship, or in 
 other words, to the scale on which the proximity of 
 relatives to each other is calculated in archaic juris- 
 prudence. Here again it will be convenient to em- 
 ploy the Roman terms, Agnatic and Cognatic relation- 
 ship. /Cognatic relationship is sunply the conception 
 of kinship familiar to modern ideas : it is the relation- 
 
CHAP. V. AGNATION AND COGNATION. 147 
 
 ship arising through common descent from the same 
 pair of married persons, whether the descent be 
 traced through males or females. Agnatic relation- 
 ship is something very different: it excludes a num- 
 ber of persons whom we in our day should certainly 
 consider of kin to ourselves, and it includes many 
 more whom we should never reckon among our 
 kindred. It is in truth the connection existing be- 
 tween the members of the Family, conceived as it 
 was in the most ancient times. The limits of this 
 connexion are far from conterminous with those of 
 modern relationship./ 
 
 (^ Cognates then-^re all those persons who can trace ^ 
 their blood to a single ancestor and ancestress ; or if 
 we take the strict technical meaning of the word in 
 Eoman law, they are all who trace their blood to the 
 legitimate marriage of a common pairj " Cognation " 
 is therefore a relative term, and the degree of con- 
 nexion in blood which it indicates depends on the 
 particular marriage which is selected as the com- 
 mencement of the calculation. If we begin with the 
 marriage of father and mother, Cognation wUl only 
 express the relationship of brothers and sisters ; if we 
 take that of the grandfather and grandmother, then 
 uncles, aunts, and their descendants will also be in- 
 cluded in the notion of Cognation, and following the 
 same process a larger number of Cognates may be 
 continually obtained by choosing the starting point 
 
148 PRIMITIVE SOCIETY AND AKCIENT LAW. csai>. r. 
 
 higher and higher up in the line of ascent. All this 
 is easily understood by a modem ; but who are the 
 Agnates? In the first place, they are all the Cognates 
 who trace their connexion exclusively through males. 
 A table of Cognates is, of course, formed by taking 
 each lineal ancestor in turn and including all his 
 descendants of both sexes in the tabular view; if 
 then, in tracing the various branches of such a ge- 
 nealogical table or tree, we stop whenever we come 
 to the name of a female and pursue that particular 
 branch or ramification no further, all who remain 
 after the descendants of women have been excluded 
 are Agnates, and their connection together is Agnatic 
 Relationship. I dwell a little on the process which 
 is practically followed in separating them from the 
 Cognates, because it explains a memorable legal 
 maxim, " Mulier est finis familiai " — a woman is the 
 terminus of the family. A female name closes the 
 branch or twig of the genealogy in which it occurs. 
 None of the descendants of a female are included in 
 the primitive notion of f amily relationship. 
 
 If the system of archaic law at which we are look- 
 ing be one which admits Adoption, we must add to 
 the Agnates thus obtained all persons, male or female, 
 who have been brought into the family by the artifi- 
 cial extension of its boundaries. But the descendants 
 of such persons will only be Agnates, if they satisfy 
 the conditions which have just been described. 
 
C«AP. T. AGNATION. 149 
 
 What then is the reason of this arbitrary inclusiou 
 and exclusion ? Why should a conception of Kinship 
 so elastic as to include strangers brought into the 
 family by adoption, be nevertheless so narrow as to 
 shut out the descendants of a female member ? To 
 solve these questions we must recur to the Patria 
 Potestas. The foundation of Agnation is not the 
 marriage of Father and Mothe r, but the authority of 
 the Father. All persons are Agnati^Uy connected 
 together who are under the same Patemal Power, or 
 who have been under it, or who might have been un- 
 der it if their lineal ancestor had lived long enough 
 to exercise his empire. In truth, in the primitive 
 view. Relationship is exactly limited by Patria Potes- 
 tas. Where the Potestas begins, Kinship begins ; 
 and therefore adoptive relatives are among the kin- 
 dred. Where the Potestas ends, Kinship ends ; so 
 that a son emancipated by his father loses all rights 
 of Agnation. And here we have the reason why the 
 descendants of females are outside the limits of ar- 
 chaic kinship. If a woman died unmarried, she could 
 '^ have no legitimate descendants. If she married, her 
 children fell under the Patria Potestas, not of her 
 Father, but of her Husband, and thus were lost to her 
 own family. It is obvious that the organization of 
 primitive societies would have been confounded, if men 
 had called themselves relatives of their mother's rela- 
 tives. The inference would have been that a person 
 
 / 
 
J 60 PRIMITIVE SOCIETY AND ANCIENT LAW. chap. v. 
 
 might be subject to two distinct Patriae Potestates; 
 but distinct Patrias Potestates implied distinct juris- 
 dictions, so that anybody amenable to two of them at 
 the same tmie would have lived under two different 
 dispensations. As long as the FamUy was an impe- 
 rium in imperio, a community within the common- 
 wealth governed by its own institutions of which the 
 parent was the source, the limitation of relationship 
 to the Agnates was a necessary security against a 
 conflict of laws in the domestic forum. 
 
 The Paternal Powers proper are extinguished by 
 the death of the Parent, but Agnation is as it were 
 a mould which retains their imprint after they have 
 ceased to exist. Hence comes the interest of Agna- 
 tion for theinquu'er into the history of jurisprudence. 
 The powers themselves are discernible in compara- 
 tively few monuments of ancient law, but Agnatic 
 Eelationship, which implies their former existence, 
 is discoverable almost everywhere. There are few 
 indigenous bodies of law belonging to communities of 
 the Indo-European stock, which do not exhibit pecu- 
 liarities in the most ancient part of their structure 
 which are clearly referable to Agnation. In Hindoo 
 law, for example, which is saturated with the primi- 
 tive notions of family dependency, kinship is entirely 
 Agnatic, and I am informed that in Hindoo genea- 
 logies the names of women are generally omitted 
 altogether. The same view of relationship pervades 
 
CHAP, y. THE HALF-BLOOD. IGl 
 
 SO mucli of the laws of the races who overran the 
 Eoman Empire as appears to have really formed part 
 of their primitive usage, and we may suspect that 
 it would have perpetuated itself even more than it 
 has in modern European jurisprudence, if it had not 
 been for the vast influence of the later Roman law 
 on modern thought. The Praetors early laid hold on 
 Cognation as the natural form of kinship, and spared 
 no pains in purifying their system from the older 
 conception. Their ideas have descended to us, but 
 still traces of Agnation are to be seen in many of the 
 modern rules of succession after death, ffhe exclusion 
 of females and their children from governmental 
 functions, commonly attributed to the usage of the( 
 Salian Franks, has certainly an agnatic origin, being 
 descended from the^cient German rule of succession 
 to allodial property^ In Agnation too is to be sought 
 the explanation oftbat extraordinary rule of English 
 Law, only recently repealed, which prohibited brothers 
 of the half-blood from succeeding to one another's 
 lands. In the Customs of Normandy, the rule applies 
 to uterine brothers only, that is, to brothers by the 
 same mother but not by the same father; and, 
 limited in this way, it is a strict deduction from 
 the system of Agnation, under which uterine brothers 
 are no relations at all to one another. When it 
 was transplanted to England, the English judges, 
 who had no clue to its principle, interpreted it as 
 
J52 PEIMITIVE SOCIETY AXD ANCIENT LAW. chap, t. 
 
 a general prohibition against the succession of the 
 half-blood, and extended it to consanguineous brothers, 
 that is to sons of the same father by diflFerent wives. 
 In all the literature which enshrines the pretended 
 philosophy of law, there is nothing more curious than 
 I the pages of elaborate sophistry in which Blackstone 
 attempts to explain and justify the exclusion of the 
 (half-blood. 
 
 It may be shown, I think, that the Family, as held 
 together by the Patria Potestas, is the nidus out of 
 which the entire Law of Persons has germinated. Of 
 all the chapters of that Law the most important is 
 that which is concerned with the status of Females. 
 It has just been stated that Primitive Jurisprudence, 
 though it does not allow a Woman to communicate 
 any rights of Agnation to her descendants, includes 
 herself nevertheless in the Agnatic bond. Indeed, 
 the relation of a female to the family in which she 
 was born is much stricter, closer, and more dui'able 
 than that which unites her male kinsmen. We have 
 several times laid down that early law takes notice of 
 Families only ; this is the same thing as saying that 
 it only takes notice of persons exercising Patria 
 Potestas, and accordingly the only principle on which 
 it enfranchises a son or grandson at the death of his 
 Parent, is a consideration of the capacity inherent in 
 such son or grandson to become himself the head of 
 a new family and the root of a new set of Parental 
 
OEAP. T. GUARDIANSHIP Ol! VVOMEN. 153 
 
 Powers. But a woman, of course, has no capacity 
 of the kind, and no title accordingly to the liberation 
 which it confers. There is therefore a peculiar con- 
 trivance of archaic jurisprudence for retaining her 
 in the bondage of the Family for life. This is the 
 institution known to the oldest Roman law as the 
 Perpetual Tutelage of Women, under which a Female, 
 though relieved from her Parent's authority by his 
 decease, continues subject through life to her nearest 
 male relations, or to her father's nominees, as her 
 Guardians. Perpetual Guardianship is obviously 
 neither more nor less than an artificial prolongation 
 of the Patria Potestas, when for other purposes it 
 has been dissolved. In India, the system survives in 
 absolute completeness, and its operation is so strict 
 that a Hindoo Mother frequently becomos the ward 
 of her own sons. Even in Europe, the laws of the 
 Scandinavian nations respecting women preserved it 
 until quite recently. The invaders of the Western 
 Empire had it universally among their indigenous 
 usages, and indeed their ideas on the subject of 
 Guardianship, in all its forms, were among the most 
 retrogi'essive of those which they introduced into the 
 Western world. But from the mature Roman jurispru- 
 dence it had entirely disappeared. We should know 
 almost nothing about it, if we had only the compila- 
 tions of Justinian to consult ; but the discovery of 
 the manuscript of Gaius discloses it to us at a most 
 
154 PRIMITIVE SOCIETY AND ANCIENT LAW. chap. t. 
 
 interesting epoch, just when it had fallen into complete 
 discredit and was verging on extinction. The. great 
 jurisconsult himself scouts the popular apology offered 
 for it in the mental inferiority of the female sex, and 
 a considerable part of his volume is taken up with 
 descriptions of the numerous expedients, some of 
 them displaying extraordinary ingenuity, which the 
 Eoman lawyers had devised for enabling Women to 
 defeat the ancient rules. Led by their theory of Na- 
 tural Law, the jurisconsults had evidently at this time 
 assumed the equality of the sexes as a principle of then- 
 code of equity. The restrictions which they attacked 
 were, it is to be observed, restrictions on the disposi- 
 tion of property, for which the assent of the woman's 
 guardians was stUl formally required. Control of 
 her person was apparently quite obsolete. 
 
 Ancient law subordinates the woman to her blood- 
 relations, while a prime phenomenonof modern juris- 
 prudence has been her subordination to her husband. 
 The history of the change is remarkable. It begins 
 far back in the annals of Rome. Anciently, there 
 were three modes in which marriage might be con- 
 tracted according to Roman usage, one involving a 
 religious solemnity, the other two the observance of 
 certain secular formalities. By the religious marriage 
 or Confarreation ; by the higher form of civil marriage, 
 which was called Coemption ; and by the lower form, 
 which was termed Usv£, the Husband acquired a 
 
una 
 sn itl 
 
 mu.e. T. ♦ ANCIENT KOMAN MARRIAGE. lot. 
 
 number of rights over the person and property of his\ 
 wife, which were on the whole in excess of such as are ' 
 conferred on him in any system of modern jurispru- 
 dence. But in what capacity did he acquire them ? 
 Not as Husband, but as Father. By the Confarreation, 
 Coemption, and Usus, the woman passed in manum 
 viri, that is, in law she became the Daughter of 
 her husband. She was included in his Patria 
 Potestas. She incurred all the liabilities springing 
 out of it while it subsisted, and surviving it when 
 had expired. All her property became absolutely; 
 his, and she was retained in tutelage after his deatlu 
 to the guardian whom he had appointed by wilM 
 These three ancient forms of marriage fell, howeve^, 
 gradually into disuse, so that at the most sple^id 
 period of Roman greatness, they had almost ei^inrely 
 given place to a fashion of wedlock — old apparently, 
 but not hitherto considered reputable — ^which was 
 founded on a modification of the lower form of civil 
 marriage. Without explaining the technical mecha- 
 nism of the institution now generally popular, I may 
 describe it as amounting in law to a little more than a 
 temporary deposit of the woman by her family. The 
 rights of the family remained unimpaired, and the 
 lady continuied in the tutelage of guardians whom her 
 parents had appointed and whose privileges of con- 
 trol overrode, in many material respects, the inferior 
 authority of her husband. The consequence was 
 
166 PRIMITIVK SOCIETY AND ANCIENT LAW. chap. t. 
 
 that the situation o f the Roman fema le, whether mar- 
 ried or unmarried, hpf-arngjonp, of great personal and 
 progrigtaryJmdfipendenr.e, for the tendency of the 
 later law, as I have already hinted, was to reduce 
 the power of the guardian to a nullity, while the 
 form of marriasre in fashion conferred on the husband 
 no compensating superiority. But Christianity tended 
 somewhat from the very first to narrow this remark- 
 able liberty. Led at first by justifiable disrelish for 
 the loose practices of the decaying heathen world, 
 but afterwards hurried on by a passion of asceticism, 
 the professors of the new faith looked with disfavour 
 on a marital tie which was in fact the laxest the 
 
 r— ■ — 
 
 Western world has seen. The latest Roman law, so 
 far as it is touched by the Constitutions of the Chris- 
 tian Emperors, bears some marks of a reaction against 
 theliberal doctrines of thegreatAntonine jurisconsults. 
 And the prevalent state of religious sentiment may 
 explain why it is that modern jurisprudence, forged in 
 the furnace of barbarian conquest, and formed by the 
 fusion of Roman jurisprudence with patriarchal usage, 
 has absorbed, among its rudiments, much more than 
 usual of those rules concerning the position of women 
 which belong peculiarly to an imperfect civilization. 
 During the troubled era which begins modern history, 
 and while the laws of the German and Sclavonic 
 immigrants remained superposed like a separate layer 
 above the Roman jurisprudence of their provincial 
 
raiP. ▼. CONDITION or- WOMEN. 157 
 
 subjects, the women of the dommant races are seen 
 everywhere under various forms of archaic guardian- 
 ship, and the husband who takes a wife from any 
 family except his own pays a money-price to her 
 relations for the tutelage which they surrender to 
 him. When we move onwards, and the code of the 
 middle ages has been formed by the amalgamation of 
 the two systems, the law relating to women carries 
 the stamp of its double origin. The principle of 
 the Roman jurisprudence is so far triumphant that 
 unmarried females are generally (though there are 
 local exceptions to the rule) relieved firom the bondage 
 of the family; but the archaic principle of the barba-" 
 rians has fixed the position of married women, and 
 the husband has drawij to himself in his marital 
 character the powers which had once belonged to his 
 wife's male kindred, the only difference being that he 
 no longer purchases his privileges. At this point there- 
 fore the modem law of Southern and Western Europe 
 begins to be distinguished by one of its chief cha- 
 racteristics, the comparative freedom it allows to 
 unmarried women and widows, the heavy disabilities 
 it imposes on wives. It was very long before the 
 subordination entailed on the other sex by marriage 
 was sensibly diminished. The principal and most 
 powerful solvent of the revived barbarism of Europe 
 was always the codified jurisprudence of Jus- 
 tinian, wherever it was studied with that paspionate 
 
158 PRIMITIVE SOCIETY AND ANCIENT LAW. chap. v. 
 
 enthusiasm which it seldom failed to awaken. It 
 covertly but most efficaciously undermined the cus- 
 toms which it pretended merely to interpret. But 
 the Chapter of law relating to married women was 
 for the most part read by the light, not of Roman, 
 but of Canon Law, which in no one particular departs 
 so widely from the spirit of the secular jurisprudence 
 as in the view it takes of the relations created by 
 marriage. This was in part inevitable, since no 
 society which preserves any tincture of Christian 
 institution is likely to restore to married women the 
 personal liberty conferred on them by the middle 
 Roman law, but the proprietary disabilities of married 
 females stand on quite a diflferent basis from their 
 personal incapacities, and it is by the tendency of 
 their doctrines to keep alive and consolidate the 
 former, that the expositors of the Canon Law have 
 deeply injured civilisation. There are many vestiges 
 of a struggle between the secular and ecclesiastical 
 principles, but the Canon Law nearly everywhere 
 prevailed. In some of the French provinces, married 
 women, of a rank below nobUity, obtained aU the 
 powers of dealing with property which Roman juris- 
 prudence had allowed, and this local law has been 
 largely followed by the Code Napoleon ; but the state 
 of the Scottish law shows that scrupulous deference 
 to the doctrines of the Roman jurisconsults did not 
 always extend to mitigating the disabilities of wives. 
 
CHAP. T. CONDITION OF WOMEN. 150 
 
 The systems however which, are least indulgent to 
 [married women are invariably those which have 
 [followed the Canon Law exclusively, or those which, 
 from the lateness of their contact with European 
 civilisation, have never had their archaisms weeded 
 out. The Danish and Swedish laws, harsh for many 
 centuries to all females, are still much less favourable 
 to wives than the generality of Continental codes. 
 And yet more stringent in the proprietary incapaci- 
 ties it imposes is the English Common Law, which 
 borrows far the greatest number of its fundamental 
 principles from the jurisprudence of the Canonists. 
 Indeed, the part of the Common Law which prescribes 
 the legal situation of married women may serve to 
 give an Englishman clear notions of the great insti- 
 tution which has been the principal subject of this 
 chapter. I do not know how the operation and 
 nature of the ancient Patria Potestas can be brought 
 so vividly before the mind as by reflecting on the 
 prerogatives attached to the husband by the pure 
 English Common Law, and by recalling the rigorous 
 consistency with which the view of a complete legal 
 subjection on the part of the wife is carried by it, 
 where it is untouched by equity or statutes, through 
 every department of rights, duties, and remedies. 
 The distance between the eldest and latest Roman 
 law on the subject of Children under Power may be 
 considered as equivalent to the difference between 
 
160 PRIMITIVE SOCIETY AND ANCIENT LAW. chap. v. 
 
 the Common Law and the jurisprudence of the Court 
 of Chancery in the rules which they respectively 
 apply to wives. 
 
 If we were to lose sight of the true origin of 
 Guardianship in both its forms, and were to employ 
 the common language on these topics, we should find 
 ourselves remarking that, while the Tutelage of 
 Women is an instance in which systems of archaic 
 law push to an extravagant length the fiction of 
 suspended rights, the rules which they lay down for 
 the Guardianship of Male Orphans are an example of 
 a fault in precisely the opposite direction. Such 
 systems terminate the Tutelage of Males at an ex- 
 traordinary early period. Under the ancient Roman 
 law, which may be taken as their type, the son who 
 was delivered from Patria Potestas by the death of 
 his Father or Grandfather remained under guardian- 
 ship till an epoch which for general purposes may be 
 described as arriving with his fifteenth year; but the 
 arrival of that epoch placed him at once in the full 
 enjoyment of personal and proprietary independence. 
 The period of minority appears therefore to have 
 been as unreasonably short as the duration of the 
 disabilities of women was preposterously long. But, 
 in point of fact, there was no element either of 
 excess or of shortcoming in the circumstances which 
 gave their original form to the two kinds of guardian- 
 ; ship. Neither the one nor the other of them was 
 ' based on the slightest consideration of public or 
 
CHAP. y. GUARDIANSHIP OF ORPHANS. 161 
 
 private convenience. The guardianship of male 
 orphans was no more designed originally to shield 
 them till the arrival of years of discretion than the 
 tutelage of women was intended to protect the other 
 sex against its own feebleness. The reason why the 
 death of the father delivered the son from the bondage 
 of the family was the son's capacity for becoming him- 
 self the head of a new famUy and the founder of a new 
 Patria Potestas : no such capacity was possessed by 
 the woman, and therefore she was never enfranchised. 
 Accordingly the Guardianship of Male Orphans was a 
 contrivance for keeping alive the semblance of subor- 
 dination to the family of the Parent, up to the time 
 when the child was supposed capable of becoming a 
 parent himself. It was a prolongation of the Patria 
 Potestas up to the period of bare physical manhood. 
 It ended with puberty, for the rigour of the theory 
 demanded that it should do so. Inasmuch, however, 
 as it did not profess to conduct the orphan ward to 
 the age of intellectual maturity or fitness for affairs, 
 it was quite unequal to the purposes of general con- 
 venience; and this the Romans seem to have dis- 
 covered at a very early stage of their social progress. 
 One of the very oldest monuments of Roman legisla- 
 tion is the Leai Lcetoria or Pketoria, which placed all 
 free males who were of full years and rights under 
 the temporary control of a new class of guardians, 
 called Curatores, whose sanction was required to 
 
 M 
 
162 PKIMITIVE SOCIETY AND ANCIENT LAW. chap, v, 
 
 validate their acts or contracts. The twenty>sixth 
 year of the young men's age was the limit of this 
 statutory supervision; and it is exclusively with 
 
 (reference to the age of twenty-five that the terms 
 " majority " and " minority " are employed in Roman 
 law. Pupilage, or wardship, in modern jurisprudence 
 has adjusted itself with tolerable regularity to the 
 simple principle of protection to the immaturity of 
 youth both bodily and mental. It has its natural 
 termination with years of discretion. But for pro- 
 tection against physical weakness, and for protection 
 / against intellectual incapacity, the Eomans looked to 
 two different institutions, distinct both in theory and 
 design. The ideas attendant on both are combined 
 in the modern idea of guardianship. 
 
 The Law of Persons contains but one other chapter 
 which can be usefully cited for our present purpose. 
 The legal rules by which systems of mature juris- 
 prudence regulate the connexion of Master and Slave, 
 present no very distinct traces of the original con- 
 dition common to ancient societies. But there are 
 reasons for this exception. There seems to be some- 
 thing in the institution of Slavery which has at 
 aJl tunes either shocked or perplexed mankind, 
 however little habituated to reflection, and however 
 slightly advanced in the cultivation of its moral 
 instincts. The compunction which ancient commu- 
 nities ahnost unconsciously experienced appears to 
 have always resulted in the adoption of some imagi- 
 
CHiP. 7. MASTER AKD SLAVE. 163 
 
 nary principle upon wHcli a defence, or at least a 
 rationale, of slavery could be plausibly founded. 
 Very early in tbeir history the Greeks explained the 
 institution as grounded on the intellectual inferiority 
 of certain races, and their consequent natural aptitude 
 for the servile condition. The Romans, in a spirit 
 equally characteristic, derived it from a supposed 
 I agreement between the victor and the vanquished, in 
 1 which the first stipulated for the perpetual services 
 of his foe, and the other gained in consideration 
 the life which he had legitimately forfeited. Such 
 theories were not only unsound but plainly unequal 
 to the case for which they affected to account. StiU 
 they exercised powerful influence in many ways. 
 They satisfied the conscience of the Master. They 
 perpetuated and probably increased the debasement 
 of the Slave. And they naturally tended to put out of 
 sight the relation in which servitude had originally 
 stood to the rest of the domestic system. This 
 relation, though not clearly exhibited, is casually 
 indicated in many parts of primitive law, and more 
 particularly in the tjrpical system — that of ancient 
 Rome. 
 
 Much industry and some learning have been 
 bestowed in the United States of America on the 
 question whether the Slave was in the early stages of 
 society a recognised member of the Faimily. There is 
 a sense iu which an affirmative answer must certainly 
 
 M 2 
 
164 PRIMITIVE SOCIETY ADD ANCIENT LAW. chap. r. 
 
 be giv^h. It is clear, from the testimony botli of 
 ancient law and of many primeval histories, that the 
 Slave might under certain conditions be made the 
 Heir, or Universal Successor, of the Master, and this 
 significant faculty, as I shall explain in the Chapter 
 on Succession, implies that the government and re- 
 presentation of the Family might, in a particular state 
 of circumstances, devolve on the bondman. It seems, 
 however, to be assumed in the American arguments 
 on the subject that, if we allow Slavery to have been 
 a primitive Family institution, the acknowledgement 
 is pregnant with an admission of the moral defensi- 
 bility of Negro-servitude at the present moment. 
 What then is meant by sajdng that the Slave was 
 originally included in the Family ? Not that his situ- 
 ation may not have been the fruit of the coarsest 
 motives which can actuate man. The simple wish to 
 use the bodily powers of another person as a means 
 of ministering to one's own ease or pleasure is doubt- 
 
 - — I.I nB »i .1 II Ml I.I I , ..I, . . ^. — 1 I , ■■— , I MJ.H M H — 
 
 less the foundation of Slavery, and as old as human 
 nature. When we speak of the Slave as anciently in- 
 cluded in the Family, we intend to assert nothing as 
 to the motives of those who brought him into it or kept 
 him there ; we merely imply that the tie which bound 
 him to his master was regarded as one of the same 
 general character with that which united every other 
 member of the group to its chieftain. This conse- 
 quence is, in fact, carried iu the general assertion 
 already made, that the primitive ideas of mankind 
 
OHAr. V. SLAVBET. ]65 
 
 were unequal to comprehending any basis of the con- 
 nexion inter se of individuals, apart from the rela- 
 tions of famUy. The Family consisted primarily of 
 those who belonged to it by consanguinity, and next 
 of those who had been engrafted on it by adoption ; 
 but there was still a third class of persons who were 
 only joined to it by common subjection to its head, 
 and these were the Slaves. The born and the adopted 
 subjects of the chief were raised above the Slave by 
 the certainty that iu the ordinary course of events 
 they would be relieved from bondage and entitled to 
 exercise powers of their own ; but that the inferiority 
 of the Slave was not such as to place him outside the 
 pale of the Family, or such as to degrade him to the 
 footing of inanimate property, is clearly proved, I 
 think, by the many traces which remain of his ancient 
 capacity for inheritance in the last resort. It would, 
 of course, be unsafe in the highest degree to hazard 
 conjectures how fer the lot of the Slave was mitigated, 
 in the beginnings of society, by having a definite 
 place reserved to him in the empire of the Father. It 
 is, perhaps, more probable that the son was practi- 
 cally assimilated to the Slave, than that the Slave 
 shared any of the tenderness which in later times was 
 shown to the son. But it may be asserted with some 
 confidence of advanced and matured codes that, 
 wherever servitude is sanctioned, the Slave has uni- 
 formly greater advantages under systems which pre- 
 serve some memento of his earlier condition than 
 
 t^ 
 
im PEIMITIVB SOCIETY AND ANCIENT LAW. chap. t. 
 
 under those which have adopted some other theory of 
 his civil degradation. The point of view from which 
 jurisprudence regards the Slave is always of great 
 importance to him. The Eoman law was arrested 
 in its growing tendency to look upon him more and 
 more as an article of property by the theory of the 
 Law of Nature; and hence it is that, wherever servi- 
 tude is sanctioned by institutions which have been 
 deeply affected by Roman jurisprudence, the servile 
 condition is never intolerably wretched. [There is a 
 great deal of evidence that in those American States 
 which have taken the highly Romanised code of 
 Louisiana as the basis of their jurisprudence, the lot 
 and prospects of the Negro-population were better, in 
 many material respects, until the letter of the funda- 
 mental law was overlaid by recent statutory enact- 
 ments passed under the influence of panic, than 
 under institutions founded on the English Common 
 Law, which, as recently interpreted, has no true place 
 for the Slave, and can only therefore regard him as a 
 chattel.J 
 
 We have now examined all parts of the ancient 
 Law of Persons which fall within the scope of this 
 treatise, and the result of the inquiry is, I trust, to 
 give additional definiteness and precision to our view 
 ; of the infancy of jurisprudence. The CivU laws of 
 States first make their appearance as the Themistes 
 of a patriarchal sovereign, and we can now see that 
 these Themistes are probably only a developed form 
 
CHAP. T. ANCIENT LAW. 107 
 
 of the irresponsible commands which, in a still earlier 
 condition of the race, the head of each isolated house- 
 hold may have addressed to his wives, his children, 
 and his slaves. But, even after the State has been 
 organised, the laws have still an extremely limited 
 application. Whether they retain their primitive 
 character as Themistes, or whether they advance to 
 the condition of Customs or Codified Texts, they are 
 binding not on individuals, but on Families. Ancient 
 lurisprudence, if a perhaps deceptive comparison may 
 be employed, may be likened to International Law, 
 filling nothing, as it were, excepting the interstices 
 between the great groups which are the atoms of 
 society. In a community so situated, the legislation 
 of assemblies and the jurisdiction of Courts reach ' 
 only to the heads of families, and to every other 
 individual the rule of conduct is the law of his home, 
 of which his Parent is the legislator. But the sphere 
 of civil law, small at first, tends steadily to enlarge ■ 
 itself. The agents of legal change. Fictions, Equity, - 
 and Legislation, are brought in turn to bear on the 
 primeval institutions, and at every point of the pro- 
 gress, a greater number of personal rights and a 
 larger amount of property are removed from the do- 
 mestic forum to the cognizance of the public tribu- ' 
 nals. The ordinances of the government obtain 
 gradually the same efficacy in private concerns as 
 in matters of state, and are no longer liable to be 
 overridden by the behests of a despot enthroned by 
 
lee PKIMITIVE SOCIETY AND ANCIENT LAW. chaj. f, 
 
 each hearthstone. We have in the annals of Roman 
 1/ law a nearly complete history of the crumbling away 
 . of an archaic system, and of the formation of new in- 
 stitutions from the re-combined materials, institutions 
 some of which descended unimpaired to the modern 
 world, while others, destroyed or corrupted by con- 
 tact with barbarism in the dark ages, had again to be 
 recovered by mankind. When we leave this juris- 
 prudence at the epoch of its final reconstruction by 
 Justinian, few traces of archaism can be discovered 
 in any part of it except in the single article of the 
 extensive powers still reserved to the living Parent. 
 Everywhere else principles of convenience, or of sym- 
 metry, or of simplification — ^new principles at any 
 rate — ^have usurped the authority of the j^ung con- 
 siderations which satisfied the conscience of ancient 
 times. Everywhere a new morality has displaced the 
 canons of conduct and the reasons of acquiescence 
 which were in unison with the ancient usages, because 
 in fact they were born of them^ '' 
 
 The movement of the progressive societies has 
 been uniform in one respect. Through all its com-se 
 /it has been distinguished by the gradual dissolution 
 of family dependency, and the growth of individual 
 obligation in its place. The Individual is steadily 
 '^substituted for the Family, as the unit of which civil 
 laws take account. The advance has been accom- 
 plished at varying rates of celerity, and there are 
 societies not absolutely stationary in which the col- 
 
CHAP. V. DISINTEGRATION OF THE FAMILY. 169 
 
 lapse of the ancient organisation can only be perceived 
 by careful study of the phenomena they present. 
 But, whatever its pace, the change has not been., 
 subject to reaction or recoil, and apparent retarda- 
 tions wlQ be found to have been occasioned through 
 the absorption of archaic ideas and customs from 
 some entirely foreign source. Nor is it difficult to 
 see what is the tie between man and man which re- 
 places by degrees those forms of reciprocity in rights 
 and duties which have their origin in the Family. It is 
 Contract. Starting, as from one terminus of history, 
 from a condition of society in which all the relations 
 of Persons are summed up in the relations of Family, 
 we seem to have steadily moved towards a phase of 
 social order in which all these relations arise from 
 the free agreement of Individuals. In Western 
 Europe the progress achieved in this direction has 
 been considerable. Thus the status of the Slave has 
 disappeared — ^it has been superseded by the contrac- 
 tual relation of the servant to his master. The 
 status of the Female under Tutelage, if the tutelage 
 be understood of persons other than her husband, has 
 also ceased to exist ; from her coming of age to her 
 marriage all the relations she may form are relations w 
 of contract. So too the status of the Son under Power 
 has no true place in the law of modern European 
 societies. If any civU obligation binds together the 
 Parent and the child of full age, it is one to which 
 only contract gives its legal validity. The apparent 
 
170 PRIMITIVE SOCIETr AND ANCIEM LAW. chap. y. 
 
 exceptions are exceptions of that stamp which illus- 
 trate the rule. The child before years of discretion, 
 the orphan under guardianship, the adjudged lunatic, 
 have all their capacities and incapacities regulated 
 by the Law of Persons. But why? The reason is 
 differently expressed in the conventional language of 
 different systems, but in substance it is stated to the 
 same effect by all. The great majority of Jurists are 
 constant to the principle that the classes of persons 
 just mentioned are subject to extrinsic control on the 
 '^single ground that they do not possess the faculty of 
 forming a judgment on their own interests; in other 
 words, that they are wanting ia the first essential of 
 an engagement by Contract. 
 
 The word Status may be usefully employed to 
 construct a formula expressing the law of progress 
 thus indicated, which, whatever be its value, seems 
 to me to be sufficiently ascertained. All the forms 
 of Status taken notice of in the Law of Persons wercf 
 derived fi-om, and to some extent are still coloured 
 by, the powers and privileges anciently residing in 
 the Family. If then we employ Status, agreeably' 
 
 . with the usage of the best writers, to signify these 
 personal conditions only, and avoid applying the 
 term to such conditions as are the immediate or 
 remote result of agreement, we may say that the 
 
 '-^movement of the progressive societies has hitherto 
 I been a movement /rom Status to Contract. 
 
CKAJ VI TESTAMENTS. 171 
 
 CHAPTER VI. 
 
 THE EARLr HISTORY OF TESTAMENTARY SUCCESSION. 
 
 If an attempt were made to demonstrate in England 
 the superiority of the historical method of investiga- 
 tion to the modes of inquiry concerning Juris- 
 prudence which are in fashion among us, no depart- 
 ment of Law would better serve as an example than 
 Testaments or Wills. Its capabilities it owes to its 
 great length and great continuity. At the beginning 
 of its history we find ourselves in the very infancy of 
 the social state, surrounded by conceptions which it 
 requires some effort of mind to reahse in their an- 
 cient fonn ; while here, at the other extremity of its 
 line of progress, we are in the midst of legal notions 
 which are nothing more than those same conceptions 
 disguised by the phraseology and by the habits of 
 thought which belong to modern times, and exhibit- 
 ing therefore a difficulty of another kind, the diffi- 
 culty of believing that ideas which form part of our 
 everyday mental stock can really stand in need of 
 analysis and examination. The growth of the Law of 
 
172 TESTAMENTARY LAW. ciiap. vi. 
 
 Wills between these extreme points can be traced 
 with remarkable distinctness. It was much, less in- 
 terrupted at the epoch of the birth of feudalism, than 
 the history of most other branches of law. It is, in- 
 deed, true that as regards all provinces of jurispru- 
 dence, the break caused by the division between 
 ancient and modem history, or in other words by the 
 dissolution of the Roman Empire, has been very 
 greatly exaggerated. Indolence has disinclined many 
 writers to be at the pains of looking for threads of 
 connexion entangled and obscured by the confusions 
 of six troubled centuries, while other inquirers, not 
 naturally deficient in patience and industry, have 
 been misled by idle pride in the legal system of their 
 country, and by consequent unwillingness to confess 
 its obligations to the jurisprudence of Rome. But 
 these unfavourable influences have had comparatively 
 little effect on the province of Testamentary Law. 
 The barbarians were confessedly strangers to any 
 such conception as that of a Will. The best 
 authorities agree that there is no trace of it in 
 those parts of their written codes which comprise 
 the customs practised by them in their original seats, 
 and in their subsequent settlements on the edge 
 of the Roman Empire. But soon after tl^ey became 
 mixed with the population of the Roman provinces 
 they appropriated from the Imperial jurisprudence 
 the conception of a Will, at first in part, and after- 
 
CHAP. Tl. MfFLUBNOE OF THE CHURCH. 173 
 
 wards in all its integrity. The influence of the 
 Church had much to do with this rapid assimilation. 
 The ecclesiastical power had very early succeeded to 
 those privileges of custody and registration of Testa- 
 ments which several of the heathen temples had en- 
 joyed ; and even thus early it was almost exclusively 
 to private bequests that the religious foundations 
 owed their temporal possessions. Hence it is that 
 the decrees of the earliest Provincial Councils per- 
 petually contain anathemas against those who deny 
 the sanctity of Wills. Here, in England, Church in- 
 fluence was certainly chief among the causes which 
 by universal acknowledgement have prevented that 
 discontinuity in the history of Testamentary Law 
 which is sometimes believed to exist in the history of 
 other provinces of Jurisprudence. The jurisdiction 
 over one class of Wills was delegated to the Eccle- 
 siastical Courts, which applied to them, though not 
 always intelligently, the principles of Roman juris- 
 prudence ; and, though neither the Courts of Common 
 Law nor the Court of Chancery owned any positive 
 obligation to follow the Ecclesiastical tribunals, they 
 could not escape the potent influence of a system of 
 settled rules in course of application by their side. 
 The English law of testamentary succession to per- 
 sonality has become a modified form of the dispen- 
 sation under which the inheritances of Eoman citizens 
 were administered. 
 
174 ANCIENT WILLS. chap. n. 
 
 It is not difficult to point out the extreme difference 
 of the conclusions forced on us by the historical treat- 
 ment of the subject, from those to which we are con- 
 ducted when, without the help of history, we merely 
 strive to analyse our primA-facie impressions. I sup- 
 pose there is nobody who, starting from the popular or 
 even the legal conception of a Will, would not imagine 
 that certain qualities are necessarily attached to it. 
 He would say, for example, that a Will necessarily 
 takes effect at death only — that it is secret, not known 
 as a matter of course to persons taking interests 
 under its provisions — that it is revocable, i.e. always 
 capable of being superseded by a new act of testation. 
 Yet I shall be able to show that there was a time 
 when none of these characteristics belonged to a WUl. 
 JVJhe Testaments from which our Wills are directly 
 descended at first took effect immediately on their exe- 
 cution ; they were not secret ; they were not revocable^ 
 Few legal agencies are, in fact, the fruit of more 
 complex -historical agencies than that by which a 
 man's written intentions control the posthumous dis- 
 position of his goods. Testaments very slowly and 
 gradually gathered round them the qualities I have 
 mentioned ; and they did this from causes and under 
 pressure of events which may be called casual, or 
 which at any rate have no interest for us at present, 
 except so fer as they have affeoted the history of 
 law. 
 
CBAP, n. KATDBAL KIGHT OF TESTATION. 175 
 
 At a time when legal-theories were more abundant 
 than at present — theories which, it is true, were for 
 the most part gratuitous and premature enough, but 
 which nevertheless rescued jurisprudence from that 
 worse and more ignoble condition, not unknown to 
 ourselves, in which nothing like a generalisation is 
 aspired to, and law is regarded as a mere empirical 
 pursuit — ^it was the fashion to explain the ready 
 and apparently intuitive perception which we have 
 of certain qualities in a WiU, by saying that they 
 were natural to it, or, as the phrase would run in 
 fail, attached to it by the Law of Nature. Nobody, I 
 imagine, would affect to maintain such a doctrine 
 when once it was ascertained that all these character- 
 istics had their origin within historical memory ; at 
 the same time vestiges of the theory of which the 
 doctrine. is an offshoot, linger in forms of expression 
 which we aU of us use, and perhaps scarcely know how 
 to dispense with. I may illustrate this by mentioning 
 H position common in the legal literature of the seven- 
 teenth century. The jurists of that period very com- 
 monly 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 connexion, is in substance followed 
 by those who afBirm that the right of dictating or 
 controlling the posthumous disposal of property is a 
 necessary or natural consequence of the proprietary 
 
176 NATURAL EIGHT OF TESTATION. OHAP. tl 
 
 rights themselves. And every student of technical 
 jurisprudence must have come across the same view, 
 clothed in the language of a rather different school, 
 which, in its rationale of this department of law, 
 treats succession ea; testamento as the mode of devolu- 
 tion which the property of deceased persons ought 
 primarily to follow, and then proceeds to account for 
 succession ab intestato as the incidental provision of 
 the lawgiver for the discharge of a function which 
 was only left unperformed through the neglect or 
 misfortune of the deceased proprietor. |_These opinions 
 are only expanded forms of the more compendious 
 doctrine that Testamentary disposition is an institu- p 
 tion of the law of Nature. It is certainly never quite 
 safe to pronounce dogmatically as to the range of 
 association embraced by modern minds when they 
 reflect on Nature and her Law ; but I believe that 
 most persons, who affirm that the Testamentary 
 Power is of Natural Law, may be taken to imply 
 either that, as a matter of fact, it is universal, or that 
 nations are prompted to sanction it by an original iu- 
 stinct and impulse. With respect to the first of these 
 positions, I think that, when explicitly set forth, it 
 can never be seriously contended for in an age which 
 has seen the severe restraints imposed on the Testa- 
 mentary Power by the Code Napoleon^ and has wit- 
 nessed the steady multiplication of systems for which 
 the French codes have served as a model. To the 
 
asLU.: VI. NATUEE OF A WILL. 177 
 
 second assertion we must object that it is contrary to 
 the best-ascertained facts in the early history of law, 
 and I venture to affirm generally that, in all indi- 
 genous societies, a condition of jurisprudence in which 
 Testamentary privileges are not allowed, or rather 
 not contemplated, has preceded that later stage of 
 legal development in which the mere will of the pro- 
 prietor is permitted under more or less of restriction 
 to override the claims of his kindred in blood. 
 
 The conception of a Will or Testament cannot be 
 considered by itself. It is a member, and not the 
 first, of a series of conceptions. [Tn itself a Will is 
 simply the instrument by which the intention of the 
 testator is declaredTj It must be clear, I think, that 
 before such an instrument takes its turn for dis- 
 cussion, there are several preliminary points to be 
 examined — as for example, what is it, what sort of 
 right or interest, which passes from a dead man on 
 his decease ? to whom and in what form does it pass ? 
 and how came it that the dead were allowed to con- 
 trol the posthumous disposition of their property? 
 Thrown into technical language, the dependence of 
 the various conceptions which contribute to the 
 notion of a Will is thus expressed. A WiU or Testa- 
 ment is an instrument by which the devolution of an 
 inheritance is prescribed. \ Inheritance is a form of 
 universal succession. A universal succession is a 
 succession to a unwersitas juris, or university of 
 
178 UNIVEKSITAS JURIS. chap. n. 
 
 rights and duties^ Inverting tHs order we have 
 therefore to inquire what is a universitas juris; what 
 is a universal succession ; what is the form of univer- 
 sal succession which is called an inheritance ? And 
 there are also two further questions, independent 
 to some extent of the points I have mooted, but 
 demanding solution before the subject of Wills can 
 be exhausted. These are, how came an inheritance 
 to be controlled in any case by the testator's volition, 
 and what is the nature of the instrument by which it 
 came to be controlled ?/' 
 
 The first question relates to the universitas juris ; 
 
 that is a university (or bundle) of rights and duties. 
 
 A universitas juris is a collection of rights and dutiet, 
 
 1 united by the single circumstance of their having 
 
 1 belonged at one time to some one person. It is, as it 
 
 "were, the legal clothing of some given individual. It 
 
 is not formed by grouping together any rights and 
 
 any duties. It can only be constituted by taking all 
 
 the rights and all the duties of a particular person. 
 
 The tie which so connects a number of rights of 
 
 property, rights of way, rights to legacies, duties of 
 
 specific performance, debts, obligations to compensate 
 
 wrongs — ^which so connects all these legal privileges 
 
 and duties together as to constitute them a universitas 
 
 juris, is the fact of their having attached to some 
 
 individual capable of exercising them. Without this 
 
 fact there is no university of rights and duties. The 
 
cniP. VI. UNIVEESAl, SUCCESSION. 179 
 
 expression universitas juris is not classical, but for the 
 notion jurisprudence is exclusively indebted to Roman 
 law ; nor is it at all difficult to seize. We must en- 
 deavour to collect under one conception the whole 
 set of legal relations in which each one of us stands 
 to the rest of the world. These, whatever be their 
 character and composition, make up together a kniver- 
 sitasjurii); and there is but little danger of mistake in 
 forming the notion, if we are only careful to( remember 
 that duties enter into it quite as much as rights.) Our 
 duties may overbalance our rights. A man may owe 
 more than he is worth, and therefore if a money 
 value is set on his collective legal relations he may 
 be what is called insolvent. But for aU that the 
 entire group of rights and duties which centres in 
 him is not the less a "juris universitas." 
 
 We come next to a "universal succession." P A 
 universal succession is a succession to a universitas 
 juris. It occurs when one man is invested with 
 the legal clothing of another, becoming at the same 
 moment subject to all his liabilities and entitled to 
 all his rights] In order that the universal succession 
 may be true and perfect, the devolution must take 
 place uno ictu, as the jurists phrase it. It is of 
 course possible to conceive one man acquiring the 
 whole of the rights and duties of another at different 
 peiT-ods, as for example by successive purchases ; or 
 he might acquire them in different capacities, paa:t as 
 
 k9 
 
180 UNIVERSAL SUCCESSION, chap. vi. 
 
 heir, part as purchaser, part as legatee. But though 
 the group of rights and duties thus made up should 
 in fact amount to the whole legal personality of a 
 particular individual, the acquisition would not be 
 a universal succession. p[n order that there may be a 
 I true universal succession, the transmission must be 
 such as to pass the whole aggregate of rights and 
 duties at the same moment and in virtue of the same 
 legal capacity in the recipient.J The notion of a 
 universal succession, like that of a ' juris universitas,' 
 is permanent in jurisprudence, though in the English 
 legal system it is obscured by the great variety of 
 capacities in which rights are acquired, and, above 
 all, by the distinction between the two great provinces 
 of English property, " realty " and " personality." 
 The succession of an assignee in bankruptcy to the 
 entire property of the bankrupt is, however, a uni- 
 versal succession, though, as the assignee only pays 
 debts to the extent of the assets, this is only a modified 
 form of the primary notion. Were it common amoi^ 
 us for persons to take assignments of all a man's 
 property on condition of paying a]l his debts, such 
 transfers would exactly resemble the universal suc- 
 cessions known to the oldest Roman Law. When a 
 Eoman citizen adrogated a son, i. e., took a man, not 
 already under Patria Potestas, as his adoptive child, 
 hie succeeded universally to the adoptive child's estate, 
 i. e., he took all the property and became liable for aU 
 the obligations. Several other forms of universal 
 
OEAP. VI. THE UNIVERSAL STICCESSOK. 181 
 
 succession appear in the primitive Roman Law, but 
 infinitely the most important and the most durable of 
 all was that one with which we are more immediately 
 concerned, Hsereditas or Inheritance, j ^ Inher itance 
 was a universal succession, occurring at a death. 
 The universal successor was Hs3res or Heir. He 
 stepped at once into all the rights and all the duties 
 of the dead man. He was instantly clothed with his 
 entire legal person, and I need scarcely add that the 
 special character of the Hseres remained the same, 
 whether he was named by a Will or whether he took 
 on an intestacy .j The term Hseres is no more emphati- 
 cally used of the Intestate than of the Testamentary 
 Heir, for the manner in which a man became' Haeres 
 had nothing to do with the legal character he sus- 
 tained. The dead man's universal successor, how- 
 ever he became so, whether by WiU or by Intestacy, 
 was his Heir. But the Heir was not necessarily a 
 single person. iTA group of persons, considered in 
 law as a single unit, might succeed as co-heirs to the 
 Inheritance. 1 
 
 Let me now quote the usual Roman definition 
 of an Inheritance. The reader will be in a posi- 
 tion to appreciate the full force of the separate 
 terms, ncereditas est successio in universum jus quod 
 defunctus habuit (" an inheritance is a succession to 
 the entire legal position of a deceased man "). |The 
 notion was that, though the physical person of the 
 deceased had perished, his legal personality survived 
 
182 THE HEIK. chap, tu 
 
 and descended unimpaired on his Heir or Co-heirs, 
 in whom his identity (so far as the law was con- 
 cerned) was continued^ Our own law, in constitu- 
 ting the Executor or Administrator the representative 
 of the deceased to the extent of his personal assets, 
 may serve as an illustration of the theory from which 
 it emanated, but, although it illustrates, it does not 
 explain it. The view of even the later Roman Law 
 required a closeness of correspondence between the 
 position of the deceased and of his Heir which is no 
 feature of an English representation ; and, in the 
 primitive jurisprudence everything turned on the 
 continuity of succession. Unless provision was made 
 in the wiU for the instant devolution of the testator's 
 rights and duties on the Heir or Go-heirs, the testa- 
 ment lost all its effect. 
 
 ! In modern Testamentary jurisprudence, as in the 
 later Eoman Law, the object of first importance is 
 the execution of the testator's intentions. In the 
 ancient law of Rome the subject of corresponding 
 carefulness was the bestowal of the Universal Succes- 
 sion.] One of these rules seems to our eyes a principle 
 dictated by common sense, while the other looks 
 very much like an idle crotchet. Yet that without 
 the second of them the first would never have come 
 into being, is as certain as any proposition of the 
 kind can be. 
 
 In order to solve this apparent paradox, and to 
 
CHAT. n. PEIMITIVE SOCIETY. 18S 
 
 bring into greater clearness the train of ideas which. 
 I have been endeavouring to indicate, I must borro\v 
 the results of the inquiry which was attempted in the 
 earlier portion of the preceding chapter. We saw 
 one peculiarity invariably distinguishing the infancy 
 of society. Men are regarded and treated, not as 
 iiidividuals, but always as members of a particular 
 group. Everybody is first a citizen, and then, as a 
 citizen, he is a member of his order — of an aristocracy 
 or a democracy, of an order of patricians or plebeians ; 
 or, in those societies which an unhappy fate has 
 afficted with a special perversion in their course of 
 development, of a caste. Next, he is a member of a 
 gens, house, or clan; and lastly, he is a member of 
 his family. This last was the narrowest and most 
 personal relation in which he stood ; nor, paradoxical 
 as it may seem, was he ever regarded as himself, as a 
 distinct individual. His individuality was swallowed 
 up in his family. I repeat the definition of a priitni- 
 tive society given before. - It has for its units, not 
 individuals, but groups of men united by the reality 
 or the fiction of Blood-relationship. 
 
 Lit is in the peculiarities of an undeveloped society 
 that we seize the first trace of a universal successionj 
 Contrasted with the organisation of a modem state, 
 [the commonwealths of primitive times may be fairly 
 described as consisting of a number of little despotic 
 governments, each perfectly distinct from the rest, 
 
JH THE PBIMITIVE FAMILY. chap. fi. 
 
 each absolutely controlled by the prerogative of a 
 single monarchJi But though \^the Patriarch,] for we 
 must not yet call him the Pater-familias, had rights 
 thus extensive, it is impossible to doubt that he 
 lay under an equal amplitude of obligations. ,If he 
 governed the family, it was for its behoof. If he was 
 lord of its possessions, he held them as trustee for his 
 children and kindred. He had no privilege or position 
 distinct from that conferred on him by his relation 
 to the petty commonwealth which he governed. [jThe 
 Family, in fact, was a Corporation ; and he was its 
 representative or, we might almost say, its Public 
 ofSicer] He enjoyed rights and stood under duties, 
 but the rights and the duties were, in the contempla- 
 tion of his fellow-citizens and in the eye of the law, 
 quite as much those of the collective body as his own. 
 Let us consider for a moment, th^effect which would 
 be produced by the death of such a representative. ' 
 In the eye of the law, in the view of the civil magis- 
 trate, the demise of the domestic authority would be 
 a perfectly iminaterial event. The person represent- 
 ing the collective body of the family and primarily 
 responsible to municipal jurisdiction would bear a 
 different naine ; and that would be aU. The rights 
 and obligations, which attached to the deceased head 
 of the house would attach, without breach of con- 
 tinuity, to his successor ; for, in point of fact, they 
 would be the rights and obligations of the] family, and 
 
OHAP. Tl. THE FAMILY A COBPOKATION. 186 
 
 the family had the distinctive characteristic of a 
 ^T corporation — ^that*^it never died., Creditors would 
 have the same remedies against the new chieftain as 
 against the old, for the liability being that of the still 
 existing family would be absolutely unchangedj All 
 rights available to the family would be as available 
 after the demise of the headship as before it — except 
 that the corporation would be obliged — if indeed 
 language so precise and technical can be properly 
 used of these early times — ^would be obliged to sue 
 under a slightly modified name. 
 
 The history of jurisprudence must be followed in 
 its whole course, if we are to understand how gra- 
 dually and tardily society dissolved itself into the 
 component atoms of which it is now constituted — ^by 
 what insensible gradations the relation of man to man 
 substituted itself for the relation of the individual to 
 his family, and of families to each other. The point 
 now lo be attended to is, that even when the revolu- 
 tion had apparently quite accomplished itself, even 
 when the magistrate had in great measure assumed 
 the place of the Pater-familias, and the civil tribunal 
 •substituted itself for the domestic forum, nevertheless 
 the w:hole scheme of rights and duties administered 
 by the judicial authorities remained shaped by the 
 influence of the obsolete privileges and coloured in 
 every part by their reflection. There seems little 
 question that the devolution of the Universitas Juris, 
 
186 FAMILIES AKD INDIVIDUALS. CHAT. TL 
 
 BO strenuously insisted upon by the Eoman Law as 
 the first condition of a testamentary or intestate suc- 
 cession, was a feature of the older form of society 
 which men's minds have been unable to dissociate fi-orii 
 the new, though with that newer phase it had no true 
 or proper connection, [it seems, in truth, that the pro- 
 longation of a man's legal existence in his heir, or in 
 a group of co-heirs, is neither more nor less than a cha- 
 racteristic of the family transferred by a fiction to the 
 individual. Succession in corporations is necessarily 
 universal, and the family was a corporation. Corpo- 
 rations never die. The decease of individual members 
 makes no difference to the collective existence of the 
 aggregate body, and does not in any way affect its legal 
 incidents, its faculties or liabilities. Now in the ideal 
 of a Roman tmiversal succession all these qualities of 
 a corporation seem to have been transferred to the 
 individual citizen. His physical death is allowed to 
 exercise no effect on the legal position which he filled, 
 apparently on the principle that that position js_tQ be 
 adjusted_as .closely- as possible to the, analogies of a 
 fapily, which, in its corporate character, was not of 
 course liable to physical extinction. ^ - 
 
 1 observe that not a few Continental jurists have 
 much difficulty in comprehending the nature of the 
 connection between the conceptions blended in a uni- 
 versal succession, and there is perhaps no topic in. the 
 philosophy of jurisprudence on which their specula- 
 
OHAF. Vf. COBPOEATIONS SOLE. 187 
 
 tions, as a general rule, possess so little value. But 
 the student of English law ought to be in no danger 
 of stumbling at the analysis of the idea which we are 
 examining. Much light is cast upon it by a fiction 
 in our own system with which all lawyers are familiar. 
 L English lawyers classify corporations as Corporations 
 aggregate and Corporations sole. A Corporation 
 a g^egate is a true corporation, but a Corporation 
 _sole is an individual, being a member of a series of 
 individuals, who is Invested by a fiction with the 
 qualities of a Corporation. I need hardly cite [the 
 Kingjor the Parson of a Parish as |instanc^ of Cor- 
 porations sole. J The capacity or office is here con- 
 sidered apart fi-om the particular person who from 
 time to time may occupy it, and, this capacity being 
 perpetual, the series of individuals who fill it are 
 clothed with the leading attribute of Corporations — 
 PerpetuityJ Now in the older theory of Roman Law 
 the individual bore to the family precisely the same 
 relation which in the rationale of English jurisprui" 
 dence a Corporation sole bears to a Corporation 
 aggregater) The derivation and association of ideas 
 are exactly the same. In fact, if we say to ourselves 
 that for purposes of Roman Testamentary Juris- 
 prudence each individual citizen was a Corporation 
 sole, we shall not only realise the full conception of 
 an inheritance, but have constantly at command the 
 clue to the assumption in which it originated, [it is 
 
.168 INTESTATE SUCCKSSIOIf. chap. vi. 
 
 an axiom with us that the King never dies, being a 
 Corporation sole^ His capacities are instantly filled 
 by his successor, and the continuity of dominion is 
 not deemed to have been interrupted. With the 
 Eomans it seemed an equally simple and natural 
 process, to eliminate the fact of death from the devo- 
 lution of rights and obligations. \The testator lived 
 on in his heir or in the group of his co-heirs. He was 
 in law the same person with them, and if any one in 
 his testamentary dispositions had even constructively 
 violated the principle which united his actual and his 
 posthumous existence, the law rejected the defective 
 instrument, and gave the inheritance to the kindred 
 in blood, whose capacity to fulfil the conditions of 
 heirship was conferred on them by the law itself, and 
 not by any document which by possibility might be 
 erroneously framed^ 
 
 When a Roman citizen died intestate or leaving no 
 yalid WiU, his descendants or kindred became his 
 heirs according to a scale which will be presently 
 described. The person or class of persons who suc» 
 ceeded did not simply represent the deceased, but, in 
 conformity with the theory just delineated, they con- 
 tinued his civil life, his legal existence. The same 
 results followed when the order of succession was 
 determined by a Will, but the theory of [the identity 
 between the dead man and his heirs was certainly much 
 older than any form of Testament or phase of Testa- 
 
onAT. VI. OLD NOTION OF INHERITANCE. 189 
 
 mentary jurisprudence^ This indeed is the proper 
 moment for suggesting a doubt which will press on 
 us with greater force the further we plumb the depths 
 of this subject — whether wills would ever have come 
 into being at all if it had not been for these remark- 
 able ideas connected with universal succession. Tes- 
 tamentary law is the application of a principle wliich 
 may be explained on a variety of philosophical hy- 
 potheses as plausible as they are gratuitous ; it is 
 interwoven with every part of modem society, and it 
 is defensible on the broadest grounds of general 
 expediency. But the warning can never be too often ~7 
 repeated, that the grand source of mistake in questions 
 of jurisprudence is the impression that those reasons 
 which actuate us at the present moment, in the main- 
 tenance of an existing institution, have necessarily 
 anything in common with the sentiment in which the 
 institution originated. Qft is certain that, in the old^ 
 Roman Law of Inheritance, the notion of a will or 
 testament is inextricably mixed up, I might almost 
 say confounded, with the theory of a man's posthu- 
 mous existence in the person of his heir/] 
 
 The conception of a universal succession, firmly as 
 it has taken root in jurisprudence, has not occurred 
 spontaneously to the framers of every body of laws. 
 Wherever it is now found, it may be shown to have 
 descended from Roman law; and with it have come 
 down a host of legial rules on the subject of Testa- 
 
190 SUCCESSION TO THE FAMILY. chap, tu 
 
 ments and Testamentary gifts, which modem practi- 
 tioners apply without discerning their relation to the 
 parent theory. Butlin the pure Roman jurisprudence, 
 the principle that a man lives on in his Heir — ^the 
 elimination, if we may so speak, of the fact of death 
 
 ^is too obviously for mistake the centre round which 
 
 the whole Law of Testamentary and Intestate suc- 
 cession is circling] The unflinching sternness of the 
 Roman law in enforcing compliance with the govern- 
 ing theory would in itself suggest that the theory 
 grew out of something in the primitive constitution 
 of Roman society ; but we may push the proof a good 
 way beyond the presumption. It happens that several 
 technical expressions, dating from the earliest insti- 
 tution of wills at Rome, have been accidentally 
 preserved to us. We have in Gains the formula 
 of investiture by which the universal successor was 
 created. We have the ancient name by which the 
 person afterwards called Heir was at first designated. 
 We have further the text of the celebrated clause in 
 the Twelve Tables by whi«?h the Testamentary power 
 was expressly recognised, and the clauses regulating 
 Intestate Succession have also been preserved. All 
 \ these archaic phrases have one salient peculiarity. 
 They indicate that ^hat passed from the Testator to 
 the Heir was the Family, that is, the aggregate of 
 rights and duties contained in the Patria Potestas 
 and growing out of it. The material property is in 
 
OHAP. TI. OBIGINAL OBJECT OF WILLS. 191 
 
 three instances not mentioned at all ; in two others, 
 it is visibly named as an adjunct or appendage of the 
 Family. The original Will or Testament was there- 
 Vfore an instrument, or (for it was probahly not at 
 fifsTm writing) a proceed ing, b y which the devolu- 
 tion of the Family was regulated. It was a mode of 
 declaring who was to have the chieftainship, in suc- 
 cession to the TestatorJ When Wills are understood 
 to have this for their original object, we see at once 
 how it is that they came to be connected with one of 
 the most curious rehcs of ancient rehgion and law, 
 the sacra, or Family Rites. -These sacra were the 
 Eoman form of an institution which shows itself 
 wherever society has not wholly shaken itself free 
 from its primitive clothing. They are the sacrifices 
 and ceremonies by which the brotherhood of the 
 family is commemorated, the pledge and the wit- 
 ness of its perpetuity. Whatever be their nature — 
 whether it be true or not that in all cases they are 
 the worship of some mythical ancestor — ^they are 
 everywhere employed to attest the sacredness of the 
 family relation ; and therefore they acquire prominent 
 significance and importance, whenever the continuous 
 existence of the Family is endangered by a change in 
 the person of its chief. Accordingly, we hear most 
 about them in connection with demises of domestic 
 sovereignty. Among the Hindoos, the right to in- 
 herit a dead man's property is exactly co-extensive 
 
192 THE HINDOO SACKA. chap. vi. 
 
 with the duty of performing his obsequies. If the 
 rites are not properly performed or not performed by 
 the proper person, no relation is considered as estab- 
 lished between the deceased and anybody surviving 
 him ; the Law of Succession does not apply, and 
 nobody can inherit the property. Every great event 
 in the life of a Hindoo seems to be regarded as 
 leading up to and bearing upon these solemnities. 
 If he marries, it is to have children who may celebrate 
 them after his death ; if he has no children, he lies 
 under the strongest obligation to adopt them from 
 another family, " with a view," writes the Hindoo 
 doctor, "to the funeral cake, the water, and the 
 solemn sacrifice." The sphere preserved to the 
 Roman sacra in the time of Cicero, was not less in 
 extent. It embraced Inheritances and Adoptions; 
 No adoption was allowed to take place without due 
 provision for the sacra of the family from which the 
 adoptive son was transferred, and no Testament was 
 allowed to distribute an Inheritance without a strict 
 apportionment of the expenses of these ceremonies 
 among the different co-heirs. The dififerences between 
 the Roman law at this epoch, when we obtain our 
 last glimpse of the sacra, and the existing Hindoo 
 system, are most instructive. Among the Hindoos, 
 the religious element in law has acquired a complete 
 predominance. Family sacrifices have become the 
 keystone of all the Law of Persons and much of the 
 
CHAP. VI. ROMAN AND HINDOO SACEA. 195 
 
 Law of Things. They have even received a mon- 
 strous extension, for it is a plausible opinion that the 
 Ra1f- i'rnTnnla.t,ioTi of the widow at her husband's funeral, 
 a practice continued to historical times by the Hindoos, 
 and commemorated in the traditions of several Indo- 
 European races, was an addition grafted on the pri- 
 mitive sacra, under the influence of the impression^ 
 which always accompanies the idea of sacrifice, that 
 human blood is the most precious of all oblations. 
 With the Romans, on the contrary, the legal obliga- 
 tion and the religious duty have ceased to be blended. 
 The necessity of solemnising the sacra forms no part 
 of the theory of civil law, but they are under the 
 separate jurisdiction of the College of PontiflFs. The 
 letters of Cicero to Atticus, which are full of allusions 
 to them, leave no doubt that they constituted an 
 intolerable burden on Inheritances ; but the point of 
 development at which law breaks away from religion 
 has been passed, and we are prepared for their entire 
 disappearance from the later jurisprudence. 
 
 In Hindoo law there is no such thing as a true 
 Win. The place filled by WiUs is occupied by Adop- 
 tions. We can now see the relation of the Testa- 
 mentary Power to the Faculty of Adoption, and the 
 reason why the exercise of either of them could call 
 up a peculiar solicitude for the performance of the 
 sacra. [Both a WiQ and an Adoption threaten a dis- 
 tortion of the ordinary course of Family descent, but 
 
 T 
 
194 WILLS AND ADOPTIONS. ^ chap, -vx 
 
 they are obviously contrivances for pr^enting the 
 descent being wholly interrupted, /when there is 
 no succession of kindred to carry it onj Of the 
 two expedients Adoption, the fictitious creation of 
 blood-^relationship, is the only one which has sug- 
 gested itself to the greater part of archaic societiea. 
 The Hindoos have indeed advanced one point on 
 what was doubtless the antique practice, by allow- 
 ing the widow to adopt when the father has neg- 
 lected to do so, and there are in the local customs of 
 Bengal some faint traces of the Testamentary powers. 
 But to the Romans belongs pre-eminentlY the credit 
 of inventing the WiU, the institution which, next to 
 the Contract, has exerci sed the greatest influence in 
 transforming human society. We must be careful 
 not to attribute to it in its earliest shape the functions 
 which have attended it in more recent times. | JfcW 
 was at first, not a mode of distributing a dead man's 
 goods, but one among several ways of transferring 
 the representation of the household to a new chief. 
 The goods descend no doubt to the Heir, but that is 
 only because the government of the family carries 
 with it in its devolution the power of disposing of 
 the common stock^ We are very far as yet from 
 that stage in the history of WiUs in which they 
 become powerful instruments in modifjong society 
 through the stimulus they give to the circulation 
 of property and the plasticity they produce in pro- 
 
CHAP. 71. ROMAN IDEAS OF SUCCESSIOIf. 196 
 
 prietary rights. No such consequences as these ap- 
 pear in &ct to have been associated with the Testa- 
 mentary power even by the latest Roman lawyers, 
 {it wiU be found that Wills were] never looked upon 
 in the Roman community as a contrivance for part- 
 ing Property and the Family, or for creating a 
 variety of miscellaneous interests, but rather as pa 
 means of making a better provision for the members 
 of a household than could be secured through the 
 rules of Intestate succession^) , We may suspect 
 indeed that the associations of a Roman with the 
 practice of will-making were extremely diflferent 
 from those familiar to us nowadays. The habit of 
 regarding Adoption and Testation as modes of con- 
 tinuing the Family cannot but have had something 
 to do with the singular laxity of Roman notions as 
 to the inheritance of sovereignty. It is impossible 
 not to see that the succession of the early Roman 
 Emperors to each other was considered reasonably 
 regular, and that, in spite of all that had occurred, 
 no absurdity attached to the pretension of such 
 Princes as Theodosius or Justinian to style them- 
 selves Caesar and Augustus. 
 
 When the phenomena of primitive societies emerge 
 into light, it seems impossible to dispute a proposition 
 which the jurists of the seventeenth century con- 
 sidered doubtful, thatl Intestate Inheritance is a more 
 ancient institution than Testamentary Succession^ 
 
 OSi 
 
196 EAEITY OF TESTAMENTARY POWERS. chap, vi 
 
 As soon as this is settled, a question of much in- 
 terest suggests itself, how and under what conditions 
 were the directions of a will first allowed to regulate 
 the devolution of authority over the household, and 
 consequently the posthumous distribution of pro- 
 perty. The difficulty of deciding the point arises 
 from the rarity of Testamentary power in archaic 
 communities. It is doubtful whether a true power 
 of testation was known to any original society except 
 the Koman. Rudimentary forms of it occur here 
 and there, but most of them are not exempt from 
 the suspicion of a Roman origin. The Atheniao^ 
 Will was, no doubt, indigenous, but then, as will ap- 
 pear presently, it was only an inchoate Testament. 
 As to the Wills which are sanctioned by the bodies of 
 law which have descended to us as the codes of the 
 barbarian conquerors of imperial Rome, they are 
 almost certainly Roman. The most penetrating Ger- 
 man criticism has recently been directed to these 
 leges Barbarorum, the great object of investigation 
 being to detach those portions of each system which 
 formed the customs of the tribe in its original home 
 from the adventitious ingredients which were bor- 
 rowed from the laws of the Romans. In the course 
 of this process, one result has invariably disclosed 
 itself, that[the ancient nucleus of the code contains 
 \ no trace of a Will.J [Whatever testamentary law 
 exists, has been taken from Roman jurisprudence^ 
 Similarly, the rudimentary Testament which (as I 
 
CHAT. VT. PEIMITIVJS OPERATION OF WILLS. 107 
 
 am informed) the Rabbinical Jewish law provides 
 for, has been attributed to contact with the Romans. 
 The only form of Testament, not belonging to a Ro- 
 man or Hellenic society, which can with any reason 
 be supposed indigenous, is that recognised by the 
 asages of the province of Bengal ;[^nd the Testament 
 of Bengal,] which some have even supposed to be an 
 invention of Anglo-Indian lawyers,Us at most only a 
 rudimentary Will] 
 
 The evidence, however, such as it is, seems to 
 point to the conclusion that Testaments are at first 
 V^)nly allowed to take efi'ect on failure of the persons 
 entitled to have the inheritance by right of blood 
 genuine or fictitious. Thus, when Athenian citizens 
 were empowered for the first time by the Laws of 
 Solon to execute Testaments, they were forbidden to 
 disinherit their direct male descendants. So, too, 
 the Will of Bengal is only permitted to govern the 
 succession so far as it is consistent with certain 
 overriding claims of the family. Again, the original 
 institutions of the Jews having provided nowhere 
 for the privileges of Testatorship, the latter Rabbini- 
 cal jurisprudence, which pretends to supply the casus 
 omissi of the Mosaic law, allows the power of Testa- 
 tion to attach when all the kindred entitled under 
 the Mosaic system to succeed have failed or are 
 undiscoverable. The limitations by which the ancient 
 German codes hedge in the testamentary jurispru- 
 dence which has been incorporated with them are 
 
108 OLD GEEMANIC WILLS. chap, ti, 
 
 also significant, and point in the same direction. It 
 is the peculiarity of most of these German laws, in 
 the only shape in which we know them, that, besides 
 the [allod or domain of each household^ they recognise 
 several subordinate kinds or orders of property, each 
 of which probably represents a separate transfusion 
 of Eoman principles into the primitive body of 
 Teutonic usage. [The primitive German or allodial 
 property is strictly reserved to the kindred. Not 
 only is it incapable of being disposed of by testa- 
 ment, but it is scarcely capable of being alienated 
 by conveyance inter vivos^ The ancient German 
 law, like the Hindoo jurisprudence, makes the male 
 children co-proprietors with their father, and the 
 endowment of the family cannot be parted with 
 except by the consent of all its members. [But the 
 other sorts of property, of more modern origin and 
 lower dignity than the aUodial possessions, are 
 much more easily alienated than they, and follow 
 much more lenient rules of devolution^' Women and 
 the descendants of women succeed to them, obviously 
 on the principle that they lie outside the sacred pre- 
 cinct of the Agnatic brotherhood. Now, it is on 
 these last descriptions of property, and on these only, 
 that the Testaments borrowed from Rome were at 
 first allowed to operate. 
 
 These few indications may serve to lend additional 
 plausibility to that which in itself appears to be the 
 
CHiP. Ti. THE COMITIA CALATA. 109 
 
 most probable explanation of an ascertained fact in 
 tbe early history of Roman Wills. We have it stated 
 on abundant authority that Testaments, during the 
 primitive period of the Roman State, were executed 
 in the Comitia Calata, that is, in the Comitia Cuiiata, 
 or Parliament of the Patrician Burghers of Rome, 
 when assembled for Private Business. This mode 
 of execution has been the source of the assertion, 
 handed down by one generation of civilians to an- 
 other, that every Will at one era of Roman history 
 was a solemn legislative enactment. But there is 
 no necessity whatever for resorting to an explanation 
 which has the defect of attributing far too much 
 precision to the proceedings of the ancient assembly. 
 The proper key to the story concerning the execu- 
 tion of WiUs in the Comitia Calata must no doubt 
 be sought in the oldest Roman law of intestate 
 succession. The canons of primitive Roman juris- 
 prudence regulating the inheritance of relations from 
 each other were, so long as they remained unmodified 
 by the Edictal Law of the Praetor, to the following 
 effect : — First, the sui or direct descendants who had 
 never been emancipated succeeded. On the failure 
 of the sui, the Nearest Agnate came into their place, 
 that is, the nearest person or class of the kindred 
 who was or might have been under the same Patria 
 Potestas with the deceased. The third and last de- 
 gree came next, in which the inheritance devolved 
 
200 JUEISDICTION OF THE COMITIA. chap vi. 
 
 on the Gentiles, that is, on the collective members of 
 the dead man's gens or House. The House, I have 
 explained already, was a fictitious extension of the 
 family, consisting of all Roman Patrician citizens 
 who bore the same name, and who on the ground 
 of bearing the same name, were supposed to be de- 
 scended from a common ancestor. Now the Patri- 
 cian Assembly called the Comitia Curiata was a 
 Legislature in which Gentes or Houses were exclu- 
 sively represented. It was a representative assembly 
 of the Roman people, constituted on the assumption 
 that the constituent unit of the state was the Gens. 
 This being so, the inference seems inevitable, that the 
 cognisance of WiUs by the Comitia was connected 
 with the rights of the GentUes, and was intended to 
 secure them in their privilege of ultimate inherit- 
 ance. The whole apparent anomaly is removed, if 
 we suppose that a Testament could only be made 
 when the Testator had no gentiles discoverable, or 
 when they waived their claims, and that every 
 Testament was submitted to the General Assembly 
 of the Roman Gentes, in order that those aggrieved 
 by its dispositions might put their veto upon it if 
 they pleased, or by allowing it to pass might be 
 presumed to have renounced their reversion. It is 
 possible that on the eve of the publication of the 
 Twelve Tables this vetoing power may have been 
 greatly curtailed or only occasionally and capriciously 
 
OTJAP. Yi, PLEBEIAN WILLS. 201 
 
 exercised. It is much easier, however, to indicate 
 the meaning and origin of the jurisdiction confided 
 to the Comitia Calata, than to trace its gradual de- 
 velopment or progressive decay. 
 
 The Testament to which the pedigree of all modern 
 WUls may be traced is not, however, the Testament 
 executed in the Calata Comitia, but another Testa- 
 ment designed to compete with it and destined to 
 supersede it. The historical importance of this 
 early Eoman WiE, and the light it casts on much 
 of ancient thought, will excuse me for describing it 
 at some length. 
 
 When the Testamentary power first discloses itself 
 to us in legal history, there are signs that, like 
 almost all the great Roman institutions, it was 
 the subject of contention between the Patricians 
 and the Plebeians. The efifect of the political 
 maxim, Plebs Gentem non habet, "a Plebeian 
 cannot be a member of a house," was entirely to 
 exclude the Plebeians from the Comitia Curiata. 
 Some critics have accordingly supposed that a 
 Plebeian could not have his Will read or recited 
 to the Patrician Assembly, and was thus deprived 
 of Testamentary privileges altogether. Others have 
 been satisfied to point out the hardships of having 
 to submit a proposed Will to the unfriendly juris- 
 diction of an assembly in which the Testator was 
 not represented. Whatever be the true view, a form 
 
202 THE PLEBEIAN WILL. chap, tl 
 
 of Testament came into use, which has all the cha- 
 racteristics of a contrivance intended to evade some 
 distasteful obligation. The Will in question was a 
 conveyance inter vivos, a complete and irrevocable 
 alienation of the Testator's family and substance to 
 the person whom he meant to be his heir. The 
 strict rules of Roman law must always have per- 
 mitted such an alienation, but when the transaction 
 was intended to have a posthumous effect, there may 
 have been disputes whether it was valid for Testa- 
 mentary purposes without the formal assent of the 
 Patrician Parliament. If a diflFerence of opinion 
 existed on the point between the two classes of the 
 Roman population, it was extinguished, with many 
 other sources of heartburning, by the great Decem- 
 viral compromise. The text of the Twelve Tables 
 is still extant which says, '•'■Pater familias uti de 
 pecunid tuteldve rei suae legdssit, ita jus esto " — a law 
 which can hardly have had any other object than the 
 legislation of the Plebeian Will. 
 
 It is well known to scholars that, centuries after 
 the Patrician Assembly had ceased to be the legis- 
 lature of the Roman State, it still continued to hold 
 formal sittings for the convenience of private busi- 
 ness. Consequently, at a period long subsequent 
 to the publication of the Decemviral Law, there is 
 Reason to believe that the Comitia Calata still as- 
 sembled for the validation of Testaments. Its pro- 
 
CttiP. Tl. END OF THE COMITIA CALATA. 203 
 
 \bable functions may be best indicated by saying 
 tnkt it was a Court of Registration, with the under- 
 standing, however, that the WUls exhibited were not 
 enrolled, but simply recited to the members, who 
 were supposed to take note of their tenor and to 
 commit them to memory. It is very likely that this 
 form of Testament was never reduced to writing 
 at all, but at all events if the Will had been ori- 
 ginally written, the office of the Comitia was cer- 
 tainly confined to hearing it read aloud, the docu- 
 ment being retained afterwards in the custody of 
 the Testator, or deposited under the safeguard of 
 some religious corporation. This publicity may have 
 been one of the incidents of the Testament executed 
 in the Comitia Calata which brought it into popular 
 disfavour. In the early years of the Empire the 
 Comitia still held its meetings, but they seem to 
 have lapsed into the merest form, and few WiQs, or 
 none, were probably presented at the periodical 
 sitting^ 
 
 It is the ancient Plebeian Will — the alternative 
 of the Testament just described — which in its remote 
 effects has deeply modified the civilisation of the 
 modem world. It acquired at Rome all the popu- 
 larity which the Testament submitted to the Calata 
 Comitia appears to have lost. The key to all its 
 characteristics lies in its descent from the manci- 
 pium, or ancient Roman conveyance, a proceeding to 
 
a04 THE MANCIPATIOIV. chap. vi. 
 
 which we may unhesitatingly assign the parentage 
 V of two great institutions without which modern 
 society can scarcely be supposed capable of holding 
 together, the Contract and the Will. The Mancipium, 
 or, as the word would exhibit itself in later Latinity, 
 the Mancipation, carries us back by its incidents 
 to the infancy of civil society. As it sprang from 
 times long anterior, if not to the invention, at all 
 events to the popularisation, of the art of writing, 
 gestures, symbolical acts, and solemn phrases take 
 the place of documentary forms, and a lengthy and 
 intricate ceremonial is intended to call the atten- 
 tion of the parties to the importance of the trans- 
 action, and to impress it on the memory of the wit- 
 nesses. The imperfection, too, of oral, as compared 
 with written, testimony necessitates the multipli- 
 cation of the witnesses and assistants beyond what 
 in later times would be reasonable or inteUigible 
 limits. 
 
 The [Roman Mancipation! required the presence 
 first of all of the parties, the vendor and vendge^ 
 or we should perhaps rather say, if we are to use 
 modem legal language, the grantor and grantee. 
 There were also no less than five witnesses ; and an 
 anomalous personage, the Libripens, who brought 
 with him a pair of scales to weigh the uncoined cop- 
 per money of ancient Rome. The Testament we ai'e 
 considermg — the Testament ^<?r ces et Ubram, "with 
 
CHAP. Ti. WILL WITH COPPEK AND SCALES. 205 
 
 the copper and the scales," as it long continued to 
 be technically called — ^was an ordinary Mancipa- 
 tion with no change in the form and hardly any in 
 words. [The Testator was the grantor ; the five 
 witnesses and the libripens were present ; and the 
 place of grantee was taken by a person known 
 technically as the familioB emptor^ the Purchaser 
 of the Familyj The ordinary ceremony of a Man- 
 cipation was then proceeded with. Certain formal 
 gestures were made and sentences pronounced. The 
 Emptor familicB simulated the payment of a price 
 by striking the scales with a piece of money, and 
 finally the Testator ratified what had been done 
 in a set form of words called the " Nuncupatio " or 
 publication of the transaction, a phrase which, I 
 need scarcely remind the lawyer, has had a long 
 history in Testamentary jurisprudence. It is ne- 
 cessary to attend particularly to the character of 
 the person called [/amiYzoe emptor. There is no 
 doubt that at first he was the Heir himself. The 
 \^ Testator conveyed to him outright his whole 
 " lamilia," that is, all the rights he enjoyed 
 over and through the family ; his property, his 
 slaves, and all his ancestral privileges, together, 
 on the other hand, with all his duties and obliga- 
 tionSji 
 
 With these data before us, we are able to note 
 several remarkable points in which Vthe Mancipatory 
 
aOC MAJfCIPATOEt WILLS. chap. ti. 
 
 Testamentijas it may be called, differed ia its primi- 
 
 , tive form from a modern Will. As it amounted to a 
 
 conveyance out-and-out of the Testator's estate, it 
 
 was not revocable2 There could be no new exercise 
 
 of a power which had been exhausted. 
 
 \^ Agauijiit was not secret./ The, FamUise Emptor, 
 
 being himself the Heir, knew exactly what his 
 
 rights were, and was aware that he was irreversibly 
 
 entitled to the inheritance ; a knowledge which the 
 
 violences inseparable from the best-ordered ancient 
 
 society rendered extremely dangerous. But perhaps 
 
 the most surprising consequences of this relation of 
 
 ^Testaments to Conveyances was the immediate vesting 
 
 of the Inheritance in the Heir. This has seemed so 
 
 incredible to not a few civilians, that they have spoken 
 
 of the Testator's estate as vesting conditionally on 
 
 the Testator's death, or as granted to him from a 
 
 time uncertain, i.e. the death of the grantor. But 
 
 down to the latest period of Roman jurisprudence 
 
 there was a certain class of transactions which never 
 
 admitted of being directly modified by a condition, 
 
 or of being limited to or from a point of time. In 
 
 technical language they did not admit conditio or dies. 
 
 Mancipa tiffl was one of them, and therefore, strange 
 
 i as it may seem, we are forced to conclude that the 
 
 L primiti ve Ro ma n Will took e ffect at once, even 
 
 though the Testator survived his act of Testation^! 
 
 It is iudeed likely that Roman citizens originally 
 
CHAP. 71, ANCIENT WILLS NOT WRITTEN. 207 
 
 made their Wills only in the article of death, and that 
 a provision for the continuance of the Family effected, 
 by a man in the flower of life would take the form 
 rather of an Adoption than of a WUl. StiU we must 
 believe that, if the Testator did recover, he could only 
 continue to govern his household by the sufferance 
 of his Heir. 
 
 Two or three remarks should be made before I ex- 
 plain how these inconveniences were remedied, and 
 how Testaments came to be invested with the charac- 
 teristics now universally associated with them. The 
 Testament was not necessarily written: at first, it 
 seems to have been invariably oral, and, even in later 
 times, the instrument declaratory of the bequests was 
 only incidentally connected with the WiU and formed 
 no essential part of it. It bore in fact exactly the 
 same relation to the Testament which the deed lead- 
 ing the uses bore to the Fines and Eecoveries of old 
 English law, or which the charter of feoflEtnent bore 
 to the feoffment itself. Previously, indeed, to the 
 Twelve Tables, no writing would have been of the 
 slightest use, for the Testator had no power of giving 
 legacies, and the only persons who could be advan- 
 taged by a will were the Heir or Co-heirs. But the 
 extreme generality of the clause in the Twelve Tables 
 soon produced the doctrine that the heir must take 
 the inheritance burdened by any directions which the 
 Testator might give him, or, in other words, take it 
 
208 THE PUECIIASEK OF THE FAMlliY. chap. r:. 
 
 subject to legacies. Written testamentary instru- 
 ments assumed thereupon a new value, as a security 
 against the fraudulent refusal of the heir to satisfy 
 the legatees ; but to the last it was at the Testator's 
 pleasure to rely exclusively on the testimony of the 
 witnesses, and to declare by word of mouth the 
 legacies which the familice emptor was commissioned 
 to pay. 
 
 The terms of the expression EmptorfamUioe demand 
 notice. " Emptor " indicates that the Will was literally 
 a sale, and the word " famUiae," when compared with 
 the phraseology in the Testamentary clause in the 
 Twelve Tables, leads us to some instructive conclu- 
 sions. " FamUia," in classical Latinity, means always 
 a man's slaves. Here, however, and generally in the 
 language of ancient Roman law, it includes aU per- 
 sons under his Potestas, and the Testator's material 
 property or substance is understood to pass as an 
 adjunct or appendage of his household. Turning to 
 the law of the Twelve Tables, it wiU be seen that it 
 speaks of tutela rei suae, " the guardianship of his sub- 
 stance," a form of expression which is the exact reverse 
 of the phrase just examined. There does not therefore 
 appear to be any mode of escaping from the conclu- 
 sion, that even at an era so comparatively recent as 
 that of the Decemviral compromise, terms denoting 
 *' household " and " property " were blended in the 
 current phraseology. If a man's household had been 
 
CHii-. VI. THE PK.ETOKIAX WILL. 209 
 
 spoken of as his property vre might have explained 
 the expreBsion as pointing to the extent of the Patria 
 Potestas, but, as the interchange is reciprocal, we 
 must aUow that the form of speech carries us back to 
 that primeval period in which property is owned by 
 the family, and the femily is governed by the citizen, 
 so that the members of the community do not own 
 their property and their family, but rather own their 
 property through their family. jJi. 
 
 At an epoch not easy to settle with precision/me 
 Roman Prtetors fell into the habit of acting upon 
 Testaments solemnised in closer conformity with the 
 spirit than the letter of the law. Casual dispensations 
 became insensibly the established practice, till at 
 length a wholly new form of Will was matured and 
 regularly engrafted on the Edictal Jurisprudence. 
 The new or Prcetorian Testament derived the whole 
 of its impregnability from the Jus Honorarium or 
 Equity of Rome. The Prsetor of some particular 
 year must have inserted a clause in his Inaugural 
 Proclamation declaratory of his intention to sustain 
 all Testaments which should have been executed with 
 such and such solemnities ; and, the reform having 
 been found advantageous, the article relating to it 
 must have been again introduced by the Praator'a 
 successor, and repeated by the next in office, till at 
 length it formed a recognised portion of that body of 
 jurisprudence which from these successive incorpora- 
 
210 THE PE^TOKUN WILL. chap. ti. 
 
 tions was styled the Perpetual or Continuous Edict. 
 On examining the conditions of a valid Praetorian 
 WUl they will be plainly seen to have been deter- 
 mined by the requirements of the Mancipatory Tes- 
 tament, the innovating Praetor having obviously pt-e- 
 scribed to himself the retention of the old formalities 
 just so far as they were warrants of genuineness or 
 securities against fr;aud. At the execution of the 
 Mancipatory Testament seven persons had been pre- 
 sent besides the Testator. Seven witnesses were 
 accordingly essential to the Praetorian Will ; two of 
 them corresponding to the libripens and familioB 
 emptor, who were now stripped of their symbolical 
 character, and were merely present for the purpose of • 
 supplying their testimony. No emblematic ceremony 
 was gone through; the WiU was merely recited; but 
 then it is probable (though not absolutely certain) 
 that a written instrument was necessary to perpetuate 
 the evidence of the Testator's dispositions. At all 
 events, whenever a writing was read or exhibited as a 
 person's last Will, we know certainly that the Praeto- 
 rian Court would not sustain it by special intervention, j 
 unless each of the seven witnesses had severally affixed 
 his seal to the outside. This is the first appearance 
 of sealing in the history of jurisprudence, considered 
 as a mode of authentication. The use of seals, how- 
 ever, as mei'e fastenings, is doubtless of much higher 
 antiquity ; and it appears to have been known to the 
 Hebrews. We may observe, that the seals of Roman 
 
CHAP. n. THE BONOKUM POSSESSIO. 211 
 
 Wills, and other documents of importance, did not 
 only serve as the index of the present or assent 
 of the signatary, but were also literally fastenings 
 which had to be broken before the writing could be 
 inspected. 
 
 The Edictal Law would therefore enforce the dis- 
 positions of a Testator, when, instead of being sym- 
 bolised through the forms of mancipation, they were 
 simply evidenced by the seals of seven witnesses. 
 But it may be laid down as a general proposition, that 
 the principal qualities of Roman property were in- 
 communicable except through processes which were 
 supposed to be coeval with the origin of the Civil Law. 
 The Praetor therefore could not confer an Inheritance 
 on anybody. He could not place the Heir or Co-heirs 
 in that very relation in which the Testator had him- 
 self stood to his own rights and obligations. All he 
 could do was to confer on the person designated as 
 Heir the practical enjoyment of the property be- 
 queathed, and to give the force of legal acquit- 
 tances to his payments of the Testator's debts. 
 (When he exerted his powers to these ends, the 
 PrsBtor was technically said to communicate the 
 Bonorum Possessio. The Heir specially inducted 
 under these circumstances, or Bonorum Possessor, 
 had every proprietary privilege of the Heir by the 
 Civil Law. He took the profits and he could alienate, 
 but then, for all his remedies for redress against 
 
 !• 2 
 
«12 IMPEOVEMENTS Ilf THE OLD WILL. chap. vi. 
 
 wrong, he must go, as we should phrase it, not to the 
 Common Law, but to the Equity side of the Praetorian 
 Court. No great chance of error would be incurred 
 by describing him as having an equitable estate in the 
 inheritance ; but then, to secure ourselves agamst 
 being deluded by the analogy, we must always recol- 
 lect that in one year the Bonorum Possessio was 
 operated upon by a principle of Roman Law known 
 as Usucapion, and the Possessor became Quiritarian 
 owner of all the property comprised in the in- 
 heritance. 
 
 We know too little of the older law of Civil Pro- 
 cess to be able to strike the balance of advantage 
 and disadvantage between the diflferent classes of 
 remedies supplied by the Praetorian Tribiinal. It is 
 certain, however, that, in spite of its many defects, the 
 \Mancipatory Testament by which the universitas juris 
 devolved at once and unimpaired was never entirely 
 superseded by the new Will ; and at a period less 
 bigoted to antiquarian forms, and perhaps not quite 
 alive to their significance, all the ingenuity of the 
 Jurisconsults seems to have been expended on the 
 improvement of the more venerable instrument. At 
 the era of Gaius, which is that of the Antonine CaBsars, 
 the great blemishes of the Mancipatory Will had been 
 removed. Originally, as we have seen, the essential 
 character of the formalities had required that the 
 Heir himself should be the Purchaser of the Family, 
 and the consequence was that he not only instantly 
 
CHAT. VI. IMPBOVEMENTS IN THE OLD WILL. 1!13 
 
 acquired a vested interest in the Testator's Property 
 but was formally made aware of his rights. OBut the 
 age of Gains permitted some unconcerned person to 
 officiate as Purchaser of the Family. The Heir, 
 therefore, was not necessarily informed of the succes- 
 sion to which he was destined ; and Wills thence- 
 Vforward acquired the property of secrecy^ The sub- 
 stitution of a stranger for the actual Heir in the 
 functions of " Familiaj Emptor " had other ulterior 
 consequences. As soon as it was legahsed,(a Koman 
 Testament came to consist of two parts or stages, — 
 a Conveyance, which was a pure form, and a Nuncu- 
 oatio, or Publication.! In this latter passage of the 
 proceeding, the Testator either orally declared to the 
 assistants the wishes which were to be executed after 
 his death, or produced a written document in which 
 his wishes were emboflied. It was not probably till 
 attention had been quite drawn off from the imaginary 
 Conveyance,, and concentrated on the Nuncupatio 
 as the essential part of the transaction, that Wills 
 were allowed to become revocable. 
 
 \ I have thus carried the pedigree of WiUs some 
 way down in legal histoiy. The root of it is the 
 old Testament "with the copper and the scales/' 
 founded on a Mancipation or Conveyance^ This an- 
 cient Will has, however, manifold defects, which are 
 remedied, though only indirectly, by the Praatorian 
 law. Meantime the ingenuity of the Jurisconsults 
 effects, in the Common- Law Will or Mancipatory 
 
214 THE BOMAN WILL. catr. vt. 
 
 Testament, the very improvements which the Prtetor 
 may have concurrently carried out in Equity. These 
 last ameliorations depend, however, on mere legal dex- 
 terity, and we see accordingly that the Testamentary 
 Law of the day of Gaius or Ulpian is only transi- 
 tional. What changes next ensued we know not; 
 but at length just before the reconstruction of the 
 jurisprudence by Justinian, we find the subjects of 
 the Eastern Eoman Empire employing a form of Will 
 of which the pedigree is traceable to the (Praetorian 
 Testament) on one side, and to the Testament " with 
 the copper and the scales," on the other. Like the 
 Testament of the Praetor, (it required no Mancipa- 
 tion, and was invalid unless sealed by seven witnesses) 
 Like the Mancipatory Will, it passed the Inheritance 
 and not merely a Bonorum Possessio. Several, how- 
 ever, of its most important features were annexed by 
 positive enactments, and it is out of regard to this 
 threefold derivation from the Praetorian Edict, from 
 the Civil Law, and from the Imperial Constitutions, 
 that Justinian speaks of the Law of Wills in his own 
 day as Jus TriperfMrn. The new Testament thus 
 described is the one generally known as the Roman 
 WiU. But it was the Will of the Eastern Empire 
 only; and the researches of Savigny have shown that 
 in Western Europe the old Mancipatory Testament, 
 with all its apparatus of conveyance, copper, and 
 scales, continued to be the form in use far down in 
 ihe Middle Ages. 
 
OfcAP. TU. DISINHEEISON OF CHILDREN, 216 
 
 CHAPTER VII. 
 
 ANCIENT AND MODERN IDEAS RESPECTING WILLS AND 
 SUCCESSIONS. 
 
 Although there is much in the modem European 
 Law of Wills which is intimately connected with . the 
 oldest rules of Testamentary disposition practised 
 among men, there are nevertheless some important 
 i^fferences between ancient and modern ideas on the 
 subject of Wills and Successions. Some of the points 
 of difference I shall endeavour to illustrate in this 
 chapter. 
 
 At a period, removed several centuries from the era 
 of the Twelve Tables, we find a variety of rules en- 
 grafted on the Roman Civil Law with the view of 
 limiting the disinherison of children; we have the ju- 
 risdiction of the Praetor very actively exerted in the 
 same interest; and we are also presented with a new 
 remedy, very anomalous in character and of uncer- 
 tain origin, called the Querela Inofficiosi Testamenti, 
 " the Plaint of an Unduteous WUl," directed to the 
 reinstatement of the issue in inheritances from which 
 they had been unjustifiably excluded by a father's 
 Testament. Comparing this condition of the law 
 
2J6 DISINHERISON OF CHILDREN. chap, vil, 
 
 vnth the text of the Twelve Tables which concedes 
 in terms the utmost liberty of Testation, several 
 writers have been tempted to interweave a good deal 
 of dramatic incident into their history of the Law 
 Testamentary. They tell us of the boundless li- 
 cense of disinherison in which the heads of families 
 instantly began to indulge, of the scandal and injury 
 to public morals which the new practices engendered, 
 and of the applause of all good men which hailed 
 the courage of the Praetor in arresting the progress 
 of paternal depravity. This story, which is not 
 without some foundation for the principal fact it 
 relates, is often so told as to disclose very serious 
 misconceptions of the principles of legal history. 
 The Law of the Twelve Tables is to be explained by 
 the character of the age in which it was enacted. 
 It does not license a tendency which a later era 
 thought itself bound to counteract, but it proceeds 
 on the assumption that no such tendency exists, or 
 perhaps we should say, in ignorance of the possi- 
 bility of its existence. There is no likelihood that 
 \iloman citizens began immediately to avail them- 
 selves freely of the power to disinherit. It is 
 against all reason and sound appreciation of history 
 to suppose that the yoke of family bondage, still 
 patiently submitted to, as we know, where its pres- 
 sure galled most cruelly, would be cast off in the 
 very particular in which its incidence in our own 
 
3HiP. vn. DISINHEEISOJ* Of" CHILDEEN. 217 
 
 day is not otherwise than welcome. ' The Law of 
 the Twelve Tables permitted the execution of Testa- 
 ments in the only case in which it was thought 
 possible that they could be executed, viz., on failure 
 of children and proximate kindred. It did not 
 forbid the disinherison of direct descendants, inas- 
 much as it did not legislate against a contingency 
 Avhich no Roman lawgiver of that era could have con- 
 templated. ^ No doubt, as the offices of family affec- 
 tion progressively lost the aspect of primary personal 
 duties, the disinherison of children was occasionally 
 attempted. But the interference of the Prastor, so 
 far from being called for by the universality of the 
 abuse, was doubtless first prompted by the fact that 
 such instances of unnatural caprice were few and 
 exceptional, and at conflict mth the current mo- 
 rality. 
 
 The indications furnished by this part of Roman 
 Testamentary Law are of a very different kind. 4 It 
 is remarkable that a Will never seems to have been 
 regarded by the Romans as a means of disinheriting 
 a Family, or of affecting the unequal distribution of 
 a patrimony, i The rules of law preventing its being 
 tui*ned to such a purpose, increase in number and 
 stringency as the jurisprudence unfolds itself; and 
 these rules correspond doubtless with the abiding 
 sentiment of Roman society, as distinguished from 
 occasional variations of feeling in individuals. It 
 
218 FEELme KESPECTING IJSTESTACT chap, tii, 
 
 would rather seem as if the Testamentary Po-wer 
 were chiefly valued for the assistance it gave in 
 making provision for a Family, and in dividing the 
 inheritance more evenly and fairly than the Law of 
 Intestate Succession would have divided it. If this 
 be the true reading of the general sentiment on the 
 point, it explains to some extent the singular horror 
 of Intestacy which always characterised the Roman. 
 No evil seems to have been considered a heavier 
 visitation than the forfeiture of Testamentary pri- 
 vileges ; no curse appears to have been bitterer than 
 that which imprecated on an enemy that he might 
 die without a "Will. The feeling has no counterpart, 
 or none that is easily recognisable, in the forms of 
 opinion which exist at the present day. All men at 
 all times wiU doubtless prefer chalking out the desti- 
 nation of their substance to having their office per- 
 formed for them by the law ; but the Roman passion 
 for Testacy is distinguished from the mere desire 
 to indulge caprice by its intensity ; and it has, of 
 course, nothing whatever in common with that 
 pride of family, exclusively the creation of feudal- 
 ism, which accumulates one description of property 
 in the hands of a single representative. It is pro- 
 bable, h priori, that it was something in the rules of 
 Intestate Succession which caused this vehement pre- 
 ference for the distribution of property under a Testa- 
 ment over its distribution by law, The difficulty, 
 
;;Jli.r. TU. EOMAN INTESTATE SUCCESSION. 219 
 
 however, is, that on glancing at the Roman Law of 
 Intestate Succession in the form which it wore for 
 many centm-ies before Justinian shaped it into that 
 scheme of inheritance which has been almost univer- 
 sally adopted by modern lawgivers, it by no means 
 strikes one as remarkably unreasonable or inequitable. 
 On the contrary, the distribution it prescribes is so 
 fair and rational, and differs so little from that with 
 which modern society has been generally contented, 
 that no reason suggests itself why it should have 
 been regarded with extraordinary distaste, especially 
 under a jurisprudence which pared down to a 
 narrow compass the testamentary privileges of per- 
 sons who had children to provide for. We should 
 rather have expected that, as in France at this 
 moment, the heads of families would generally save 
 themselves the trouble of executing a WUl, and allow 
 the Law to do as it pleased with their assets. I 
 think, however, if we look a little closely at [the pre- 
 Justinianean scale of Intestate SuccessioUj} we shall 
 discover the key to the mystery. The texture of the 
 law consists of two distinct parts. One department 
 of rules comes from the Jus Civile, the Common-Law 
 of Rome ; the other from the Edict of the Praetor. 
 The Civil Law, as I have already stated for another 
 purpose, [calls to the inheritance only three orders of 
 successors in their turn; the Unemancipated children, 
 the nearest class of Agnatic kindred, and the Gentiles.^ 
 
220 ANCIENT INTESTATE SUCCESSION. cuAr. vn, 
 
 Between these three orders, the Praetor interpolates 
 various classes of relatives, of whom the Civil Law 
 took no notice whatever. Ultimately, the combination 
 of the Edict and of the Civil Law forms a table of 
 succession not materially different from that which 
 has descended to the generality of modern codes. 
 
 The point for recollection is, that there must 
 anciently have been a time at which the rules of the 
 Civil Law determined the scheme of Intestate Suc- 
 cession exclusively, and at which the arrangements 
 of the Edict were non-existent, or not consistently 
 carried out. We cannot doubt that, in its infancy, 
 the PraBtorian jurisprudence had to contend with 
 formidable obstructions, and it is more than probable 
 that, long after popular sentiment and legal opinion 
 had acquiesced in it, the modifications which it 
 periodically introduced were governed by no certain 
 principles, and fluctuated with the varying bias of 
 successive ^magistrates. The rules of Intestate Suc- 
 cession, which the Romans must at this period have 
 practised, account, I think — and more than account 
 — ^for that vehement distaste for an Intestacy to 
 which Roman society during so many ages remained 
 constant. The order of succession was this : on the 
 death of a citizen, having no will or no valid will, his 
 Unemancipated children became his Heirs. His 
 emancipated sons had no share in the inheritance. 
 If he left no direct descendants living at his death, 
 
CHAP. VII. AXCIENT INTESTATE SUCCESSIOIf. 221 
 
 the nearest grade of the Agnatic kindred succeeded, 
 but no part of the inheritance was given to any rela ■ 
 tive united (however closely) with the dead man 
 through female descents. AU the other branches 
 of the family were excluded, and the inheritance 
 escheated to the Gentiles, or entire body of Roman 
 citizens bearing the same name with the deceased. 
 I So that on failing to execute an operative Testament, 
 a Roman of the era under examination left his 
 emancipated children absolutely without provision, 
 while, on the assumption that he died childless, there 
 was imminent risk that his possessions would escape 
 from the family altogether, and devolve on a number 
 of persons with whom he was merely connected by 
 the sacerdotal fiction that assumed all members of the 
 same gens to be descended from a common ancestor. 
 The prospect of such an issue is in itself a nearly 
 sufficient explanation of the popular sentiment ; but, 
 in point of fact, we shall only half understand it, if 
 we forget that the state of things I have been de- 
 scribing is likely to have existed at the very moment 
 when Roman society was in the first stage of its 
 transition from its primitive organisation m detached 
 families. The empire of the father had indeed re- 
 ceived one of the earliest blows directed at it through 
 the recognition of Emancipation as a legitimate 
 usage, but the law, still considering the Patria 
 Potestas to be the root of family connection, perse- 
 
222 FEELING BESPECTING INTESTACY. chap, m. 
 
 vered in looking on the emancipated children as 
 strangers to the rights of kiaship and aliens from 
 the bloody We cannot, however, for a moment sup- 
 pose that the limitations of the family imposed by- 
 legal pedantry had their counterpart in the natural 
 affection of parents. Family attachments must still - 
 have retained that nearly inconceivable sanctity and 
 intensity which belonged to them under the Pa- 
 triarchal system ; and so little are they likely to 
 have been extinguished by the act of emancipation, 
 that the probabilities are altogether the other way. 
 It may be unhesitatingly taken for granted that 
 enfranchisement from the father's power was a de- 
 monstration, rather than a severance, of affection — a 
 mark of grace and favour accorded to the best-beloved 
 and most esteemed of the children. If sons thus 
 honoured above the rest were absolutely deprived of 
 their heritage by an Intestacy, the reluctance to in- 
 cur it requires no farther explanation. We might 
 have assumed a priori that the passion for Testacy 
 was generated by some moral injustice entailed by 
 the rules of Intestate succession ; and here we find 
 them at variance with the very instinct by which 
 early society was cemented together. It is possible 
 to put all that has been urged in a very succinct 
 form. Every dominant sentiment of the primitive 
 Romans was entwined with the relations of the family, 
 ^ut what was the Family ? The Law defined it one 
 
OHiP. TU. FEELING BESPBCTING fNTESTACY, 223 
 
 way — natural affection another. In the conflict be- 
 tween the two, the feeling we would analyse grew up, 
 taking the form of an enthusiasm for the institution 
 by which the dictates of affection were permitted to 
 determine the fortunes of its objects. 
 \_^ I regard, therefore, [the Roman horror of Intes- 
 ^tacyj&B a monument of a very early conflict between 
 ancient law and slowly changing ancient sentiment 
 on the subject of the Family. Some passages in 
 the Roman Statute-Law, and one statute in parti- 
 cular which limited the capacity for inheritance 
 possessed by women, must have contributed to keep 
 alive the feeling; and fit is .the general belief that 
 the system of creating Fidei-Commissa, or bequests 
 in trust, was devised to evade the disabilities im- 
 posed by those statutesl But the feehng itself, in 
 its remarkable intensity, seems to point back to some 
 deeper antagonism between law and opinion ; nor 
 is it at all wonderful that the improvements of 
 jurisprudence by the Praetor should not have extin- 
 guished it. Everybody conversant with the philo- 
 sophy of opinion is aware that a sentiment by no 
 means dies out, of necessity, with the passing away 
 of the circumstances which produced it. It may 
 long survive them; nay, it may afterwards attain 
 to a pitch and climax of intensity which it never 
 attained during their actual continuance. 
 
 The view of a WiU which regards it as conferring 
 
224 MODERN WILLS, cnir. vii. 
 
 the power of diverting property from the Family, 
 or of distributing it in such uneven proportions as 
 the fancy or good sense of the Testator may dictate, 
 is not older than that later portion of the Middle 
 Ages in which Feudalism had completely con- 
 solidated itself,/ \When modem jurisprudence first 
 shows itself in the rough, ^ills are rarely allowed to 
 dispose with absolute freedom of a dead man's assets. 
 Wherever at this period the descent of property 
 was regulated by Will — and over the greater part 
 of Europe moveable or personal property was the 
 subject of Testamentary disposition-Vfche exercise 
 Xof the Testamentary power was seldom allowed to 
 interfere with the right of the widow to a definite 
 share, and of the children to certain fixed propor- 
 tions, of the devolving inheritance. ^ The shares of 
 the children, as their amount shows, were deter- 
 mined by the authority of Eoman law. The pro- 
 vision for the widow was attributable to the exer- 
 tions of the Church, which never relaxed its solicitude 
 for the interest of wives surviving their husbands — 
 winning, perhaps, one of the most arduous of its tri- 
 umphs when, after exacting for two or three centuries 
 an express promise from the husband at marriage to 
 endow his wife, it at length succeeded in engrafting 
 the principle of Dower on the Customary Law of 
 all Western Europe. Curiously enough, the dower 
 of lands proved a more stable institution than the 
 
JHAP. m. widow's shake of moveables. 226 
 
 analogous and more ancient reservation of certain 
 shares of the personal property to the widow and 
 children. A few local customs in France maintained 
 the right down to the Revolution, and there are traces 
 of similar usages in England ; but on the whole the 
 doctrine prevailed that moveables might be freely 
 disposed of by WiU, and, even when the claims of 
 the widow continued to be respected, the privi- 
 leges of the children were obliterated from juris- 
 prudence. We need not hesitate to attribute the 
 change to the influence of Primogeniture, j/ As the 
 Feudal law of land practically disinherited all the 
 children in favour of one, the equal distribution evep' 
 of those sorts of property which might have been 
 equally divided ceased to be viewed as a duty, ^^es- 
 taments were the principal instruments employed 
 in producing inequality, and in this condition of 
 things originated the shade of diflFerence which shows 
 itself between the ancient and the modern con- 
 ception of a Will.^ But, though the liberty of 
 bequest, enjoyed through Testaments, was thus an 
 accidental fruit of Feudalism, there is no broader 
 distinction than that which exists between a system 
 of free Testamentary disposition 9,nd a system, like 
 that of the Feudal land-law, under which property 
 descends compulsorily in prescribed lines of devolu- 
 tion. This truth appears to have been lost sight of 
 by the authors of the French Codes. In the social 
 
 Q 
 
22S FRENCH LAW OF WILLS. chap. tix. 
 
 fabric which they determined to destroy, they saw 
 Primogeniture resting chiefly on Family settle- 
 ments, but they also perceived that Testaments 
 were frequently employed to give the eldest son 
 precisely the same preference which was reserved 
 to him upder the strictest of entails. In order, 
 therefore, 'to make sure of their work, they not 
 only rendered it impossible to prefer the eldest 
 son to the rest in marriage-arrangements, but they 
 almost expelled Testamentary succession from the 
 law, lest it should be used to defeat their funda;- 
 mental principle of an equal distribution of pro- 
 perty among children at the parent's death. The 
 result is that they have established a system of 
 small perpetual entails which is infinitely nearer 
 akin to the system of feudal Europe than would be 
 a perfect liberty of .bequest. The land-law of Eng- 
 land, " the Herculaneum of Feudalism," is certainly 
 much more closely alKed to the land-law of the Mid- 
 dle Ages than that of any Continental country, and 
 Wills with us are frequently used to aid or imitate 
 that preference of the eldest son and his line which 
 is a nearly universal feature in marriage settle^ 
 ments of real property. But nevertheless feeling and 
 opinion jin, this country have been profoundly affected 
 by the practice, of free Testamentary disposition ; and 
 it appears to me that the state of sentiment in a 
 great part of French society, on the subject of the 
 
COAX. vn. PEIMOGENITUKB. 227 
 
 conservation of property in families, is muc h lik er_ 
 that which prevailed throughout Europe two or three 
 centuries ago than are the current opinions of 
 Englishmen. 
 
 The mention of Primogeniture introduces one of 
 the most difficult problems of historical jurispru- 
 dence. Though I have not paused to explain my 
 expressions, it may have been noticed that [ I have 
 frequently spoken of a number of "co-heirs" as 
 placed by the Eoman Law of Succession on the 
 same footiag with a single Heir.l In poiut of fact, 
 we know of no period of Roman jurisprudence at 
 which the place of the Heir, or Universal Succes- 
 sor, might not have been taken by a group of co- 
 heirs. This group succeeded as a single unit, and 
 the assets were afterwards divided among them in a 
 separate legal proceeding. When the Succession was 
 ab intestato, and the group consisted of the children 
 of the deceased, they each took an equal share of 
 the property ; nor, though males had at one time 
 some advantages over females, is there the faintest 
 "^race of Primogeniture. , (The mode of distribution 
 is th^same thronghout archaic jurisprudence. It 
 certainly seems that, when civil society begins and 
 families cease to hold together through a series of 
 generations, the idea which spontaneously suggests 
 itself is to divide the domain equally among the mem- 
 bers of each successive generation, and to reserve no 
 
 tt2 
 
228 PRIMOeENITUKB. chap. vn. 
 
 privilege to the eldest son or stock. Some pecu- 
 liarly significant hints as to the close relation of this 
 phenomenon to primitive thought are furnished by- 
 systems yet more archaic than the Roman. Among 
 the Hindoos, the instant a son is bom, 'he acquires a 
 vested right in his father's property, which cannot 
 ^e sold without recognition of his joint-ownership. 
 On the son's attaining full age, he can sometimes 
 compel a partition of the estate, even against the 
 consent of the parent ; and, should the parent ac- 
 quiesce, one son can always have a partition even 
 against the will of the others. On such partition 
 taking place, the father has no advantage over his 
 children, except that he has two of the shares in- 
 stead of one. 1^ The ancient law of the German 
 tribes was exceedingly similar. The allod or domain 
 of the family was the joint property of the father 
 and his sons. It does not, however, appear to have 
 been habitually divided even at the death of the 
 parent, and in the same way the possessions of a 
 Hindoo, however divisible theoretically, are so rarely 
 distributed in fact, that many generations constantly 
 succeed each other without a partition taking place, 
 and thus the Family in India has a perpetual tendency 
 to expand into the Village Community, under con- 
 ditions which I shall hereafter attempt to elucidate. 
 All this points very clearly to the absolutely equal 
 division of assets among the male children at death as 
 
 1 
 
CHAP. vn. PEIMOGENITUEE. '229 
 
 the practice most usual with society at the period 
 when family dependency is in the first stages of 
 disintegrationrj Here then emerges the historical 
 difficulty of Primogeniture. The more clearly we 
 perceive that, when the Feudal institutions were in 
 process of formation, there was no source in the 
 world whence they could derive their elements but 
 the Roman Law of the provincials on the one hand 
 and the archaic customs of the barbarians on the 
 other, the more are we perplexed at first sight by 
 our knowledge that neither Roman nor barbarian 
 was accustomed to give any preference to the eldest 
 son or his line in the succession to property. 
 
 Primogeniture did not belong to the Customs which 
 the barbarians practised on their first establishment 
 within the Roman Empire. It is known to have had 
 its origin in the benefices or beneficiary gifts of the 
 invading chieftains. These benefices, which were oc 
 casionally conferred by the earlier immigrant king*, 
 but were distributed on a great scale by Charlemagne, 
 were grants of Roman provincial land to be holdtn 
 by the beneficiary on condition of military service. 
 The allodial proprietors do not seem to have foUovred 
 their sovereign on distant or difficult enterprises, and 
 all the grander expeditions of the Prankish chiefs and 
 of Charlemagne were accomplished with forces com- 
 posed of soldiers either personally dependent on tha 
 royal house or compelled to serve it by the tenure of 
 
230 BENEFICES AIJD FIEFS. chap. tii. 
 
 their land. The benefices, however, were not at 
 first in any sense hereditarj. They were held at 
 the pleasure of the grantor, or at most for the 
 life of the grantee ; but still, fi-om the very outset, 
 no effort seems to have been spared by the bene- 
 ficiaries to enlarge the tenure, and to continue their 
 lands in their family after death. Through the fee- 
 bleness of Charlemagne's successors these attempts 
 were universally successful, and the Benefice gradu- 
 ally transformed itself into the hereditary Fief. But, 
 though the fiefs were hereditary, they did not neces- 
 sarily descend to the eldest son. The rules of suc- 
 cession which they followed were entirely determined 
 by the terms agreed upon between the grantor 
 and the beneficiary, or imposed by one of them 
 on the weakness of the other. The original tenures 
 were therefore extremely various; not indeed so 
 capriciously various as is sometimes asserted, for aU 
 which have hitherto been described present some 
 combination of the modes of succession familiar to 
 Romans and to barbarians, but stiU. exceedingly mis- 
 cellaneous. In some of them the eldest son and his 
 stock undoubtedly succeeded to the fief before the 
 others, but such successions, so far from being uni- 
 versal, do not even appear to have been general. 
 Precisely the same phenomena recur during that 
 more recent transmutation of European society which 
 entirely substituted the feudal form of property for 
 
CRAS. TIT, ALLODS AND FIKFS. 231 
 
 the domainia (or Roman) and the allodial (or Ger- 
 man). The aUods were whoUy absorbed by the fiefs. 
 The greater allodial proprietors transformed them- 
 selves into feudal lords by conditional alienations of 
 portions of their land to dependants; the smaller 
 sought an escape from the oppressions of that terrible 
 time by surrendering their property to some powerful 
 chieftain, and receiving it back at his hands on con- 
 dition of service in his wars. Meantime, that vast 
 mass of the population of Western Europe whose 
 condition was servile or semi-servile — ^the Roman 
 and German personal slaves, the Roman coloni and 
 the German lidi — were concurrently absorbed by 
 the feudal organisation, a few of them assuming a 
 menial relation to the lords, but the greater part 
 receiving land on terms which in those centuries 
 were considered degrading. The tenures created 
 during this era of universal infeudation were as va- 
 rious as the conditions which the tenants made with 
 their new chiefs or were forced to accept from them. 
 As in the case of the benefices, the succession to 
 some, but by no means to all, of the estates followed 
 the rule of Primogeniture. No sooner, however, has 
 the feudal system prevailed throughout the West^ 
 than it becomes evident that Primogeniture has some 
 great advantage over every other mode of succession. 
 It spread over Europe with remarkable rapidity^ the 
 principal instrument of diffusion being Family Settle* 
 
iS-J DIFFUSION OP PBIMOGEJilTURE. chat. vii. 
 
 ments, the Pactes de Famille of France and Haus- 
 Gesetze of Germany, whicli universally stipulated 
 that lands held by knightly service should descend 
 to the eldest son. Ultimately the law resigned itself 
 to follow inveterate practice, and we find that in all 
 the bodies of Customary Law, which were gradually 
 built up, the eldest son and stock are preferred in the 
 succession to estates of which the tenure is free and 
 military. As to lands held by servile tenures (and 
 originally all tenures were servile which bound the 
 tenant to pay money or bestow manual labour), the 
 system of succession pi'escribed by custom differed 
 greatly in different countries and different provinces. 
 The more general rule was that such lands were 
 divided equally at death among all the children, but 
 still in some instances the eldest son was preferred, 
 in some the youngest. But "^Primogeniture usually 
 governed the inheritance of that class of estates, in 
 some respects the most important of all, which wei'e 
 held by tenures that, like the English Socage, were 
 of later origin than the rest, and were neither alto- 
 gether free nor altogether servile. 
 
 The diffusion of Primogeniture is usually accounted 
 for by assigning what are called Feudal reasons for 
 it. It is asserted that the feudal superior had a bet- 
 ter security for the military service he required when 
 the fief descended to a single person, instead of being 
 distributed among a number on the decease of the 
 
CJiAP vn. DIFFUSION OF PEIMOGENITUEE. 233 
 
 last holder. Without denymg that this consideration 
 may partially explain the favour gradually acquired 
 by Primogeniture, I must point out that Primogeni- 
 ture became a custom of Europe much more through 
 its popularity with the tenants than through any 
 advantage it conferred on the lords. For its origin, 
 moreover, the reason given does not account at all. 
 Nothing in law springs entirely from a sense of con- 
 venience. There are always certain ideas existing 
 antecedently on which the sense of convenience works, 
 and of which it can do no more than form some new 
 combination ; and to find these ideas in the present 
 case is exactly the problem. 
 
 A valuable hint is furnished to us from a quarter 
 fruitful of such indications. Although in India the 
 possessions of a parent are divisible at his death, and 
 may bp divisible during his life, among all his male 
 children in equal shares, and though this principle of 
 \_the equal distribution of property extends to every 
 part of the Hindoo institutions, yet wherever public 
 office or political power devolves at the decease of the 
 last Incumbent, the succession is nearly universally 
 according to the rules of Primogeniture. Sovereign- 
 ties descend therefore to the eldest son, and where 
 the affairs of the Village Community, the corporate ^ 
 unit of Hindoo society, are confided to a single 
 manager, it is generally the eldest son who takes up 
 the administration at his parent's death All ofiices, 
 
234 SUCCESSION TO POLITICAL POWEE. chap, to. 
 
 indeed, in India, tend to become hereditary, and, when 
 their nature permits it, to vest in the eldest member 
 of the oldest stock Comparing these Indian succes- 
 sions with some of the ruder social organisations 
 which have survived in Europe almost to our own 
 day, the conclusion suggests itself that, when Patri- 
 larchal power is not only domestic but political; it is 
 not distributed among all the issue at the parent's 
 death, but is the birthright of the eldest son. The 
 chieftainship of a Highland elan, for example, followed 
 the order of Primogeniture. There seems, in truth, 
 to be a form of family dependency still more archaic 
 than any of those which we know from the primitive 
 records of organised civil societies. The Agnatic 
 Union of the kindred in ancient Roman law, and a 
 multitude of similar indications, point to a period at 
 which all the ramifying branches of the family tree 
 held together in one organic whole ; and it is no pre- 
 sumptuous conjecture, that, when the corporation thus 
 formed by the kindred was in itself an independent 
 society, it was governed by the eldest male of the 
 oldest hue. It is true that we have no actual know- 
 ledge of any such society. Even in the most ele- 
 mentary communities, family-organisations, as we 
 know them, are at most imperia in imperio. But the 
 position of some of them, of the Celtic clans in parti- / 
 cular, was sufficiently near independence within his- 
 torical times to force on us the conviction that they 
 
CHAP. TH. ANCIENT FOKMS OF PKIMOGENITUEE 235 
 
 were once separate imperia, and that Primogeniture 
 regulated the succession to the chieftainship. It 
 is, however, necessary to be on our guard against 
 naodern associations with the term of law. We are 
 speaking of a family-connection still closer and more 
 stringent than any with which we are made acquainted 
 by Hindoo society or ancient Roman law. If the 
 Roman Paterfamilias was visible steward of the fa- 
 mily possessions, if the Hindoo father is only joint 
 sharer with his sons, still more emphatically must the 
 true patriarchal chieftain be merely the administrator 
 of a common fund. 
 
 The examples of succession by Primogeniture 
 which were found among the Benefices may, there- 
 fore, have been imitated from a system of family- 
 government known to the invading races, though 
 not in general use. Some ruder tribes may have stiU 
 practised it, or, what is still more probable, society 
 may have been so slightly removed from its more 
 archaic condition that the minds of some men spon- 
 taneously recurred to it, when they were called upon 
 to settle the rules of inheritance for a new form of 
 property. But there is stiU the question, Why did 
 Primogeniture gradually supersede every other prin- 
 ciple of succession ? The answer, I think, is, that 
 yEuropean society decidedly retrograded during the 
 dissolution of the Garlovingian empire. It sank a 
 point or two back even from the miserably low degree 
 
236 FALL OF CARLOVINGIAN EMPIRE. chap, vrr 
 
 which it had marked during the early barbarian 
 monarchies. The great characteristic of the period 
 was the feebleness, or rather the abeyance, of kingly 
 and therefore of civil authority ; and hence it seems 
 as if, civU society no longer cohering, men univer- 
 sally flung themselves back on a social organisation 
 older than the beginnings of civil communities. 4 The 
 lord with his vassals, during the ninth and tenth 
 centuries, may be considered as a patriarchal house- 
 hold, recruited, not as in the primitive times by 
 Adoption, but by Infeudation; and to such a con- 
 federacy, succession by Primogeniture was a source 
 of strength and durability. ^ So long as the land was 
 kept together on which the entire organisation rested, 
 it was powerful for defence and attack; to divide 
 the land was to divide the little society, and volun- 
 tarily to invite aggression in an era of universal 
 violence. We may b^ perfectly certain that into this 
 preference for Primogeniture there entered no idea 
 of disinheriting the bulk of the children in favour of 
 one. Everybody would have suffered by the division 
 of the fief. Everybody was a gainer by its consoli- 
 dation. The Family grew stronger by the concentra- 
 tion of power in the same hands ; nor is it likely that 
 the lord who was invested with the inheritance had 
 any advantage over his brethren and kinsfolk in occu- 
 pations, interests, or indulgences. It would be a sin- 
 gular anachronism to estimate the privileges succeeded 
 
CUiP. vn. EARLIER AST) LATER PRIMOGENITUllE. 237 
 
 to by the heir of a fief, by the situation in which the 
 eldest son is placed under an English strict settlement. 
 I have said that I regard the early feudal con- 
 federacies as descended from an archaic form of the 
 Family, and as wearing a strong resemblance to it. 
 But then in the ancient world, and in the societies 
 which have not passed through the crucible of feu- 
 dalism, the Primogeniture which seems to have pre- 
 vailed never transformed itself into the Primogeniture 
 of the later feudal Europe. When the group of kins- 
 men ceased to be governed through a series of genera- 
 tions by a hereditary chief, the domain which had 
 been managed for all appears to have been equally 
 divided among all. Why did this not occur in the 
 feudal world? If during the confusions of the first 
 feudal period thfe eldest son held the land for the be- 
 hoof of the whole family, why was it that when feudal 
 Europe had consolidated itself, and regular commu- 
 nities were again established, the whole family did 
 not resume that capacity for equal inheritance which 
 had belonged to Eoman and German alike ? The key 
 which unlocks this difficulty has rarely been seized 
 by the writers who occupy themselves in tracing the 
 genealogy of Feudalism. They perceive the materials 
 of the feudal institutions, but they miss the cement. 
 The ideas and social forms which contributed to the 
 formation of the system were unquestionably bar- 
 barian and archaic, but as soon as Courts and lawyers 
 
238 MODERN VIEW OF CHIEFTAINSHIP. chap, vn, 
 
 were called in to interpret and define it, the principles 
 of interpretation which they applied to it were those 
 of the latest Roman jurisprudence, and were therefore 
 excessively refined and matured. In a patriarchally 
 governed society, the eldest son may succeed to the 
 government of the Agnatic group, and to the absolute 
 disposal of its property. But he is not therefore a 
 true proprietor. He has correlative duties not in- 
 volved in the conception of proprietorship, but quite 
 undefined and quite incapable of definition. The 
 later Eoman jurisprudence, however, like our own 
 law, looked upon uncontrolled power over property 
 as equivalent to ownership, and did not, and, in fact^ 
 could not, take notice of Habilities of such a kind, 
 that the very conception of them belonged to a period 
 anterior to regular law. The contact of the refined 
 and the barbarous notion had inevitably for its effect 
 the conversion of the eldest son into legal proprietor 
 of the inheritance. The clerical and secular lawyers 
 so defined his position from the first ; but it was only 
 by insensible degrees that the younger brother, from 
 participating on equal terms in all the dangers and 
 enjoyments, of his kinsman, sank into the priest, the 
 soldier of fortune, or the hanger-on of the mansion. 
 The legal revolution was identical with that which 
 occurred on a smaller scale, and in quite recent times, 
 through the greater part of the Highlands of Scotland. 
 When called in to determine the legal powers of the 
 
CHAP, TH. rOEMS OF PRIMOGENITURE, 2^ 
 
 chieftain over tke domains ■which, gave sustenance to 
 the clan^ Scottish'-guiisprudeEce had long since passed 
 the point at which it could take notice of the vague 
 limitations on completeness of dominion imposed by 
 the claims of the clansmen, and it was inevitable 
 therefore that it should convert the patrimony of 
 many into the estate of one. / 
 
 For the sake of simplicity, I have called the ■;inode 
 -of succession rrimogeniture whenever a single son 
 or descendant succeeds to the authority over a house- 
 hold or society.^ It. is remarkable, however, that in 
 the few very ancient examples which remain to us of 
 this fiort of succession, it is not always the eldest son, 
 iii the sense familiar to us, who takes up the repre- 
 sentation. The form- of Primogeniture which has 
 spread over Western Europe has also been per- 
 petuated among i the Hindoos, and there is every 
 reason to believe that it is the normal form. "^Under 
 it, not only the eldest son, but the eldest line is always 
 preferred. J If the eldest son fails, his eldest son has 
 precedence not only over brothers but over uncles ; 
 and, if he too fails, the same rule is followed in the 
 next generation. /But when the succession is not 
 merely to dvil but to political power, a difficulty may 
 present itself which will appear of greater magnitude 
 according as the cohesion of society is less perfect. ^ 
 The chieftain who last exercised authority may have 
 outlived his eldest son, and the grandson who is 
 
240 FORMS OF PKIMOGEXITURE. chap. Tn. 
 
 primarily entitled to succeed may be too young and 
 immature to undertake the actual guidance of the 
 community, and the administration of its affairs. In 
 such an event, the expedient which suggests itself to 
 the more settled societies is to place the infant heir 
 under guardianship tUl he reaches the age of fitness 
 for government. JThe guardianship is generally that 
 of the male Agnates ; but it is remarkable that the 
 contingency supposed is one of the rare cases in 
 which ancient societies have consented to the exercise 
 of power by women, doubtless out of respect to the 
 overshadowing claims of the mother. In India, the 
 widow of a Hindoo sovereign governs in the name of 
 her infant son, and we cannot but remember that the 
 custom regulating succession to the throne of France 
 — ^which, whatever be its origin, is doubtless of the 
 highest antiquity — ^preferred the queen -mother to all 
 other claimants for the Eegency, at the same time 
 that it rigorously excluded all females from the 
 throne. There is, however, Nfenother mode of ob- 
 viating the inconvenience attending the devolution 
 of sovereignty on an infant heirj^'and it is one which 
 would doubtless occur spontaneously to rudely or- 
 ganised communities. This is to set aside the infant 
 heir altogether, and confer the chieftainship on the 
 eldest surviving male of the first generation.^ The 
 Celtic clan-associations, among the many phenomena 
 which they have preserved of an age in which civil 
 
CHAP. Tn. CELTIC PEIMOGENITURE. 241 
 
 and political society were not yet even rudiinentarily 
 separated, have brought down this rule of succession 
 to historical times. With them, it seems to have 
 existed in the form of a positive canon, that, failing 
 the eldest son, his next brother succeeds in priority 
 to aU grandsons, whatever be their age at the moment 
 when the sovereignty devolves. Some writers have 
 explained the principle by assuming that the Celtic 
 customs took the last chieftain as a sort of root or 
 stock, and then gave the succession to the descend- 
 ant who should be least remote from him ; the uncle 
 thus being preferred to the grandson as being nearer 
 to the common root. No objection can be taken to 
 this statement if it be merely intended as a descrip- 
 tion of the system of succession ; but it would be a 
 serious error to conceive the men who first adopted 
 the rule as applying a course of reasoning which 
 evidently dates from the time when feudal schemes 
 of succession began to be debated among lawyers. 
 The true origin of the preference of the uncle to the 
 grandson is doubtless a simple calculation on the part 
 of rude men in a rude society that it is better to be 
 governed by a grown chieftain than by a child, and 
 that the younger son is more likely to have come 
 to maturity than any of the eldest son's descendants. 
 At the same time, we - have some evidence that the 
 form of Primogeniture with which we are best ac- 
 quainted is the primary form, in the tradition that 
 
 s 
 
242 MAHOMETAN KULE. chap. tii. 
 
 the assent of the clan was asked when an infant heir 
 was passed over in favour of his uncle. There is a 
 tolerably well authenticated instance of this ceremony 
 in the annals of the Scottish Macdonalds ; and Irish 
 Celtic antiquities, as interpreted by recent inquirers, 
 are said to disclose many traces of similar practices. 
 The substitution by means of election, of a " worthier " 
 Agnatic relative for an elder is not unknown, too, 
 in the system of the Indian Village Communities. 
 
 Under Mahometan law, which has probably pre- 
 served an ancient Arabian custom, inheritances of 
 property are divided equally among sons, the daugh- 
 ters taking a half share ; but if any of the children 
 die before the division of the inheritance, leaving 
 issue behind, these grandchildren are entirely ex- 
 cluded by their uncles and aunts. Consistently with 
 this principle, the succession, when political autho- 
 rity devolves, is according to the form of Primo- 
 geniture which appears to have obtained among 
 the Celtic societies. In the two great Mahometan ■ 
 families of the West, the rule is believed to be, that 
 the uncle succeeds to the throne in preference to the 
 nephew, though the latter be the son of an elder 
 brother ; but though this rule has been followed 
 quite recently both in Egypt and in Turkey, I am 
 informed that there has always been some doubt 
 as to its governing the devolution of the Turkish 
 sovereignty. *s The poHcy of the Sultans has in fact 
 
OHAf. vxr, POLYGAMY. 243 
 
 generally prevented cases for its application from 
 occurring, and it is possible that their wholesale 
 massacres of their younger brothers may have been 
 perpetrated quite as much in the interest of their 
 children as for the sake of making away with 
 dangerous competitors for the throne. It is evident, 
 however, that in polygamous societies the form of 
 Primogeniture will always tend to vary. Many con- 
 siderations may constitute a claim on the succession, 
 the rank of the mother, for example, or her degree in 
 the affections of the father. Accordingly, some of 
 the Indian Mahometan sovereigns, without pretending 
 to any distinct testamentary power, claim the right 
 of nominating the son who is to succeed. The 
 blessing mentioned in the Scriptural history Of Isaac 
 and his sons has sometimes been spoken of as a will, 
 but it seems rather to have been a mode of naming 
 an eldest son. 
 
 e2 
 
?M NATUKAL MODES OF ACQUISITION. CHAP. rm. 
 
 CHAPTER -Till. 
 
 THE BAELT HISTORY OF PROPERTY. 
 
 The Roman Institutional Treatises, after giving their 
 definition of the various forms and modifications of 
 ownership, proceed to discuss the Natural Modes of 
 Acquiring Property. Those who are unfamiliar with 
 the history of jurisprudence are not likely to look 
 upon these " natural modes " of acquisition as pos- 
 sessing, at first sight, either much speculative or 
 much practical interest. The wild animal which is 
 snared or kUled by the himter, the soil which is 
 added to our field by the imperceptible deposits of a 
 river, the tree which strikes its roots into our ground, 
 are each said by the Roman lawyers to be acquired 
 by us naturally. The older jurisconsults had doubt- 
 less observed that such acquisitions were universally 
 sanctioned by the usages of the little societies around 
 them, and thus the lawyers of a later age, finding 
 them classed in the ancient Jus Gentium, and per- 
 ceiving them to be of the simplest description, allotted 
 them a place among the ordinances of Nature. The 
 dignity with which they were invested has gone on 
 increasing in modem times tiQ it is quite out of pro- 
 
CKAP. Tm. OCCUPANCY. 246 
 
 portion to their original importance. Theory has 
 made them its favourite food, and has enabled them 
 to exercise the most serious influence on practice. 
 
 It will be necessary for us to attend to one only 
 among these " natural modes of acquisition," Occu- 
 patio or Occupancy. -/Occupancy is the advisedly 
 taking possession of that which at the moment is the 
 property of no man, with the view (adds the technical 
 definition) of acquiring property in it for yourself. 
 The objects which the Roman lawyers called res nul- 
 lius — things which have not or have never had an 
 owner — can only be ascertained by enumerating 
 them. Among things which never had an owner are 
 wild animals, fishes, wild fowl, jewels disinterred for 
 the first time, and lands newly discovered or never 
 before cultivated. Among things which have not an 
 owner are moveables which have been abandoned, 
 lands which have been deserted, and (an anomalous 
 but most formidable item) the property of an enemy. 
 In all these objects the full rights of dominion were 
 acquired by the Occupant, who first took possession 
 of them with the intention of keeping them as his 
 own— an intention which, in certain cases, had to be 
 manifested by specific actsi? It is not difficult, I 
 think, to understand the universality which caused 
 the practice of Occupancy to be placed by one gene- 
 ration of Roman lawyers in the Law common to all 
 Nations, and the simplicity which occasioned its being 
 
■^i6 LAW OF CAPTURE IN WAR. chap. tjox. 
 
 attributed by another to the Law of Nature. But 
 for its fortunes in modem legal history we are less 
 prepared by d, priori considerations. /The Roman 
 principle of Occupancy, and the rules into which the 
 jurisconsults expanded it, are the source of aU modem 
 International Law on the subject of Capture in War 
 and of the acquisition of sovereign rights in newly dis- 
 covered countries. s/They have also supplied a theory 
 of the Origin of Property, which is at once the 
 popular theory, and the theory which, in one form or 
 another, is acquiesced in by the great majority of 
 speculative jurists. 
 
 I have said that the Roman principle of Occupancy 
 has determined the tenor of that chapter of Interna- 
 tional Law which is concerned with Capture in War. 
 The Law of "Warlike Capture derives its rules from 
 the assumption that communities are remitted to a 
 state of nature by the outbreak of hostihties, and that, 
 in the artificial natural condition thus produced, the 
 institution of private property falls into abeyance so 
 far as concerns the belligerents. As the later writers 
 on the Law of Nature have always been anxious to 
 maintain that private property was in some sense 
 ■ sanctioned by the system which they were expound- 
 ing, the hypothesis that an enemy's property is res 
 nvllius has seemed to them perverse and shocking, 
 and they are careM to stigmatise it as a mere fiction 
 of jurisprudence. But, ad soon as the Law of Nature 
 
CHAP. vin. ANCIEIfT LAW OF CAnUEB. 24? 
 
 is traced to its source in tlie Jus Gentium, we see at 
 once how the goods of an enemy came to be looked 
 upon as nobody's property, and therefore as capable 
 of being acquired by the first npcnpant, . The idea 
 would occur spontaneously to persons practising the 
 ancient forms of Warfare, when victory dissolved the 
 organisation of the conquering army and dismissed 
 the soldiers to indiscriminate plunder. It is probable, 
 however, that originally it was only moveable pro- 
 perty which was thus permitted to be acquired by 
 the Captor. We know on independent authority that 
 a very different rule prevailed in ancient Italy as to 
 the acquisition of ownership in the soil of a con- 
 quered country, and we may therefore suspect that 
 v/the application of the principle of occupancy to land 
 (always a matter of difficulty) dates from the period 
 when the Jus Gentium was becoming the Code of 
 Nature, and that it^is the result of a generalisation 
 effected by the jurisconsults of the golden age. ^ Their 
 dogmas on the point are preserved in the Pandects of 
 Justinian, and amount to an unqualified assertion 
 that enemy's property of every sort is res nullvus to 
 the other belligerent, and that Occupancy, by which 
 the Captor makes it his own, is an institution of 
 Natural Law. The rules which International juris- 
 prudence derives from these positions have sometimes 
 been stigmatised as needlessly indulgent to the fero- 
 city and cupidity of combatants, but the charge has 
 
248 OCCUPANCY AND WARLIKE CAPTUKE. chap. Tin, 
 
 been made, I think, by persons who are unacquainted 
 with the history of wars, and who are consequently 
 ignorant how great an exploit it is to command 
 obedience for a rule of any kind. The Roman prin- 
 ciple of Occupancy, when it was admitted into the 
 modern law of Capture in War, drew with it a number 
 of subordinate canons, limiting and giving precision 
 to its operation, and if the contests which have 
 been waged since the treatise of Grotius became an 
 authority, are compared with those of an earlier date, 
 it will be seen that, as soon as the Roman maxima 
 were received. Warfare instantly assumed a more 
 tolerable complexion, rif the Roman law of Occu- 
 pancy is to be taxed with haviug had pernicious in- 
 fluence on any part of the modern Law of Nations, 
 there is another chapter in it which may be said, with 
 some reason, to have been injuriously affected. ^ In 
 applying to the discovery of new countries the same 
 principles which the Romans had applied to the find- 
 ing of a jewel, the Publicists forced into their service 
 a doctrine altogether unequal to the task expected 
 from it.-' Elevated into extreme importance by the 
 discoveries of the great navigators of the 15th and 
 16 th centuries, it raised more disputes than it solved. 
 The greatest uncertainty was very shortly found to 
 exist on the very two points on which certainty was 
 most required, the extent of the territory which was 
 acquired for his sovereign by the discoverer, and the 
 
CHAP. vm. BULE OF DISCOVERY. 249 
 
 nature of the acts which were necessary to complete 
 the adprehensio or assumption of sovereign posses- 
 sion. Moreover, the principle itself, conferring as it 
 did such enormous advantages as the consequence of 
 a piece of good luck, was instinctively mutinied 
 against by some of the most adventurous nations 
 in Europe, the Dutch, the English, and the Portu- 
 guese. Our own countrymen, without expressly de- 
 nying the rule of International Law, never did, in 
 practice, admit the claim of the Spaniards to engross 
 the whole of America south of the Gulf of Mexico, or 
 that of the King of France to monopolise the valleys 
 of the Ohio and the Mississippi. From the accession 
 of Elizabeth to the accession of Charles the Second, 
 it cannot be said that there was at any time thorough 
 peace in the American waters, and the encroach- 
 ments of the New England Colonists on the territory 
 of the French King continued for almost a century 
 longer. Bentham was so struck with the confusion 
 attending the application of the legal .principle, that 
 he went out of his way to eulogise the famous Bull 
 of Pope Alexander the Sixth, dividing the undis- 
 covered countries of the world between the Spaniards 
 and Portuguese by a line drawn one hundred leagues 
 West of the Azores ; and, grotesque as his praises may 
 appear at first sight, it may be doubted whether the 
 arrangement of Pope Alexander is absurder in prin- 
 ciple than the rule of Public Law which gave half a 
 
260 ORIGIN OF PEOPBBTr. chap. \iii. 
 
 continent to the monarch whose servants had fulfilled 
 the conditions required by Eoman jurisprudence for 
 the acquisition of property in a valuable object which 
 could be covered by the hand. 
 
 To all who pursue the inqiiiries wliich are the 
 subject of this volume, Occupancy is pre-eminently 
 interesting on the score of the service it has been 
 made to perform^'for speculative jurisprudence,-' in 
 V furnishing a supposed explanation of the origin of 
 private property, v It was once universally believed 
 that the proceeding implied in Occupancy was iden- 
 tical with the process by which the earth and its 
 fruits, which were at first in common, became the 
 allowed property of individuals. yThe course of 
 thought which led to this assumption is not difficult 
 to understand, if we seize the shade of difference 
 which separates the ancient fi-om the modern con- 
 ception of Natural Law. ' The Roman lawyers had 
 laid down that Occupancy was one of the Natural 
 modes of acquiring property, and they undoubtedly 
 believed that, were mankind living under the institu- 
 tions of Nature, Occupancy would be one of their 
 practices. How far they persuaded themselves that 
 such a condition of the race had ever existed, is a 
 point, as I have abeady stated, which their language 
 leaves in much uncertainty ; but they certainly do 
 seem to have made the conjecture, which has at aU 
 times possessed much plausibility, that the institution 
 
CHAP. TETI. OKIGIN OF PEOPEETY. 251, 
 
 of property was not so old as the existende of man- 
 kind. (Modern jurisprudence, accepting all their 
 dogmas without reservation, went far beyond them 
 in the eager curiosity with which it dwelt on the 
 supposed state of Nature. Since then it had re- 
 ceived the position that the earth and its fruits 
 w^ere once res nuUius, and since its peculiar view of 
 Nature led it to assume without hesitation that the 
 human race had actually practised the Occupancy 
 of res nuUius long before the organisation of civU so- 
 cieties, the inference immediately suggested itself that 
 Occupancy was the process by which the " no man's 
 goods" of the primitive world became the private 
 property of individuals in the world of history. It 
 would be wearisome to enumerate the jurists who 
 have subscribed to this theory in one shape or an- 
 other, and it is the less necessary to attempt it. 
 because Blackstone, who is always a faithful index, 
 of the average opinions of his day, has summed them 
 up in his 2nd book and 1st chapter. 
 
 " The earth,", he writes, " and all things therein 
 were the general property of mankind from the imme- 
 diate gift of the Creator. Not that the communion of 
 goods seems ever to have been applicable, even in the; 
 earliest ages, to aught but the substance of the thing ; 
 nor could be extended to the use of it. For, by the 
 law of nature and reason, he who first began to use 
 it acquired therein a kind of transient property that 
 
252 BLACKSTONElS THEOKV. chap. vm. 
 
 lasted so long as he was using it, and no longer; 
 or to speak with greater precision, the right of pos- 
 session continued for the same time only that the 
 act of possession lasted. Thus the ground was in 
 common, and no part was the permanent property 
 of any man in particular ; yet whoever was in the 
 occupation of any determined spot of it, for rest, for 
 shade, or the like, acquired for the time a sort of 
 ownership, from which it would have been unjust 
 and contrary to the law of nature to have driven 
 him by force, but the instant that he quitted the use 
 or occupation of it, another might seize it without 
 injustice." He then proceeds to argue that " when 
 mankind increased in number, it became necessary 
 to entertain conceptions of more permanent domi- 
 nion, and to appropriate to individuals not the imme- 
 diate use only, but the very substance of the thing 
 to be used." 
 
 Some ambiguities of expression in this passage 
 lead to the suspicion that Blackstone did not 
 quite understand the meaning of the proposition 
 which he found in his authorities, that property in 
 the earth's surface was first acquired, under the law 
 of Nature, by the occupant; but the limita.tion 
 which designedly or through misapprehension he has 
 imposed on the theory brings it into a form which it 
 has not infrequently assumed. /Many writers more 
 famous than Blackstone for precision of language 
 
CUAP. VIII, BLACKSTONE S XnEOKT. 253 
 
 have laid down that, in the beginning of things. 
 Occupancy first gave a right against the world to an 
 exclusive but temporary enjoyment, and that after- 
 wards this right, while it remained exclusive, became 
 perpetual. Their object in so stating their theory 
 was to reconcile the doctrine that in the state of 
 Nature res nullius became property through Occu- 
 pancy, with the inference which they drew from the 
 Scriptural history that the Patriarchs did not at 
 first permanently appropriate the soil which had been 
 grazed over by their flocks and herds. 
 
 The only criticism which could be directly applied 
 to the theory of Blackstone would consist in in- 
 quiring whether the circumstances which make up 
 his picture of a primitive society are more or less 
 probable than other incidents which could be ima- 
 gined with equal readiness. Pursuing this method 
 of examination, we might fairly ask whether the 
 man who had occupied (Blackstone evidently uses 
 this word with its ordinary English meaning) a par- 
 ticular spot of ground for rest or shade would be 
 permitted to retain it without disturbance. The 
 chances surely are that his right to possession would 
 be exactly coextensive with his power to keep it, 
 and that he would be constantly liable to disturbance 
 by the first comer who coveted the spot and thought 
 himself strong enough to drive away the possessor. 
 But the truth is that all such cavil at these positions 
 
254 APHORISM OF SAVIGXT. ohap. tiii. 
 
 is perfectly idle from the very baselessness of tlie 
 'positious themselves. I What mankind did in the pri- 
 mitive state may not be a hopeless subject of inquiry, 
 but of their motives for doing it it is impossible to 
 know anything. These sketches, of the plight of 
 [human beings in the first ages of the world are 
 ■effected by first supposing mankind to be divested of 
 a great part of the circumstances by which they are 
 now surrounded, and by then assuming that, in 
 ■the condition thus imagined, they would preserve 
 the same sentiments and prejudices by which they 
 are now actuated, — although, in fact, these senti- 
 ments may have been created and engendered by 
 those very circumstances of which, by the hypo- 
 thesis, they are to be stripped. 
 
 There is an aphorism of Savigny which has been 
 ■sometimes thought to countenance a view of the 
 origin of property somewhat similar to the theories 
 epitomised by Blackstone. The great German jurist 
 has laid do-mi that all property is founded on Ad- 
 verse Possession ripened by Prescription. It is only 
 with respect to Roman law that Savigny makes this 
 statement, and before it can fully be Appreciated 
 •muQh labour must be expended in explaining and 
 defining the expressions employed. His meaning 
 wUi, however, be indicated with sufficient accura,cy 
 if we consider him to assert that, how far soever we 
 carry our inquiry into the ideas of property received 
 
OHAP. rur. APHOEISM OF SAVIG^T. 255 
 
 among the Eomans, however closely we approach in 
 tracing them to the infancy of law, we can get no 
 farther than a conception of ownership involving the 
 three elements in the canon — Possession, Adverse-\ 
 ness of Possession, that is, a holding not permissive 
 or subordinate, but exclusive against the world, and 
 Prescription, or a period of time during which the 
 Adverse Possession has uninterruptedly continued^ 
 It is exceedingly probable that this maxim might 
 be enunciated with more generality than was allowed 
 to it by its author, and that no sound or safe con- 
 clusion can be looked for from investigations into 
 any system of laws which, are pushed farther back 
 than the point at which these combined ideas con- 
 stitute the notion of proprietary right. Meantime, 
 so far from bearing out the popular theory of the 
 origin of property, Savigny's canon is particularly 
 valuable as directing our attention to its weakest 
 point. In the view of Blackstone and those whom 
 he follows, it was the mode of assuming the exclusive 
 enjoyment which mysteriously affected the minds of 
 the fathers of our race. But the mystery does not 
 reside here. /It is not wonderful that property began 
 in adverse possession. It is not surprising that the 
 first proprietor should have been the strong man 
 armed who kept his goods in peace. But why it was 
 that lapse of time created a sentiment of respect for 
 his possession — which is the exact source of the 
 
256 TRUE OEIGIN OF OCCUPAKCY. chap. viii. 
 
 universal reverence of mankind for that which has 
 for a long period de facto existed — are questions really 
 deserving the profoundest examination, but lying far 
 beyond the boundary of our present inquiries. ) 
 
 Before pointing out the quarter in which we may 
 hope to glean some information, scanty and un- 
 certain at best, concerning the early history of 
 proprietary right, I venture to state my opinion that 
 the popular impression in reference to the part 
 played by Occupancy in the first stages of civilisa- 
 tion directly reverses the truth. A^ccupancy is the 
 advised assumption of physical possession ; and the 
 notion that an act of this description confers a title 
 to " res nullius," so far from being characteristic 
 of very early societies, is in .all probability the 
 growth of a refined jurisprudence and of a settled 
 condition of the lawsjj It is only when the rights of 
 property have gained a sanction from long prac- 
 tical inviolability, and when the vast majority of 
 the objects of enjoyment have been subjected to 
 private ownership, that mere possession is allowed 
 to invest the first possessor with dominion over 
 commodities in which no prior proprietorship has 
 been asserted. ^ The sentiment in which this doctrine 
 originated is absolutely irreconcilable with that 
 mfi*equency and uncertainty of proprietary rights 
 which distinguish the beginnings of civilisation. 
 / Its true basis seems to be, not an instinctive bias 
 
CHAP, vm, OBJECTIONS TO POPULAE THEOEf. 257 
 
 towards the institution of Property, but a presump- 
 tion, arising out of the long continuance of that 
 institution, that everything ought to have an owner. 
 Wheii possession is taken of a " res nullius," that is, 
 of an object which is not, or has never been, reduced 
 to dominion, the possessor is permitted to become 
 proprietor from a feehng that all valuable things 
 are naturally the subjects of an exclusive enjoyment, 
 and that in the given case there is no one to invest 
 with- the right of property except the Occupant. 
 The Occupant, inj^hort, becomes the owner, because 
 aU things are presumed to be somebody's property 
 and because no one can be pointed out as having 
 a better right than he to the proprietorship of this 
 particular thing. /^ 
 
 /Even were there no other objection to the de- 
 scriptions of mankind in their natural state which 
 we have been discussing, there is one particular in 
 which they are fatally at variance with the authentic 
 evidence possessed by us. ^It will be observed, that 
 the acts and motives which these theories suppose 
 are the acts and motives of Individuals.^ .It is each 
 Individual who for himself subscribes the Social 
 Compact. It is some shifting sandbank in which 
 the grains are Individual men, that according to 
 the ^ theory of Hobbs is hardened into the social 
 rock by the wholesome discipline of force. It is an 
 Individual who, in the picture drawn by Blackstone 
 
258 OBJECTIONS TO POPULAE THEOET. chap, mi. 
 
 •' is in* the occupation of a determined spot of 
 ground for rest, for shade, or the like." The vice 
 is one which necessarily afflicts all the theories de- 
 scended from the Natural Law of the Eomans, 
 which diflfered principally from their Civil Law in 
 the account which it took of Individuals, and which 
 has rendered precisely its greatest service to civilisa- 
 tion in enfranchising the individual from the autho- 
 rity of archaic society, .j^ut Ancient Law^ it must 
 again be repeated, '''knows next to nothing of In- 
 dividuals. It is concerned not with Individuals, but 
 with Families, not with single human beings, but 
 groups, y Even when the law of the State has suc- 
 ceeded in penetrating the small circles of kindred 
 into which it had originally no means of penetrating, 
 the view it takes of Individuals is curiously different 
 from that taken by jurisprudence in its maturest 
 stage. yThe life of each citizen is not regarded as 
 limited by birth and death ; it is but a continuation 
 of the existence of his forefathers, and it wiU be 
 prolonged in the existence of his descendants. ^ 
 
 The Roman distinction between the Law of Per- 
 sons and the Law of Things, which though extremely 
 convenient is entirely artificial, has evidently done 
 much to divert inquiry on the subject before us from 
 the true direction. The lessons learned in discussing 
 the Jus Personarum have been forgotten where the 
 Jus Rerum is reached, and Property, Contract, and 
 
CHAP. Tin. INFLUENCE OF BOMAN CLASSIFICATIONS. 259 
 
 Delict, have been considered as if no hints concern- 
 ing their original nature were to be gained from the 
 facts ascertained respecting the original condition 
 of Persons. The futility of this method would be 
 manifest if a system of pure archaic law could be 
 brought before us, and if the experiment could be 
 tried of applying to it the Roman classifications. 
 It would soon be seen that the separation of the 
 Law of Persons from that of Things has no meaning 
 in the infancy of the law, that the rules belonging to 
 the two departments are inextricably mingled to- 
 gether, and that the distinctions of the later jurists 
 are appropriate only to the later jurisprudence. 
 From what has been said in the earlier portions 
 of this treatise, it will be gathered that /there is 
 a strong a priori improbability of •enr obtaining 
 any clue to the early history of property, if we 
 confine our notice to the proprietary rights of in- 
 dividuals. It is more than Hkely that joint-owner- 
 ship, and not separate ownership, is the really 
 archaicVnstitution, and that the forms of property 
 which will afford us instruction will be those 
 which are associated with the rights of families and 
 of groups of kindred.;;^ The Roman jurisprudence 
 will not here assist in enlightening us, for it is 
 exactly the Roman jurisprudence which, transformed 
 by the theory of Natural Law, has bequeathed to 
 the moderns the impression that individual ownership 
 
200 INDIAK- VILLAGE COMMUNITIES. chap. Tin. 
 
 is the normal state of proprietary right, and that 
 ownership in common by groups of men is only 
 the exception to a general rule. There is, however, 
 one community which will always be carefully ex- 
 amined by the inquirer who is ia quest of any lost 
 institution of primeval society. How far soever any 
 such institution may have undergone change among 
 the branch of the Indo-European family which has 
 been settled for ages in India, it will seldom be found 
 to have entirely cast aside the shell ia which it 
 was originally reared. | It happens that, among the 
 Hindoos, we do find a form of ownership which ougM 
 at once to rivet our attention from its exactly fitting 
 m with the ideas which our studies in the Law of 
 Persons would lead us to entertain respecting the 
 original condition of property. The YUlage Com- 
 munity of India is at once an organised patriarchal 
 society and an assemblage of co-proprietors. The 
 personal relations to each other of the men who 
 compose it are indistinguishably confounded with 
 their proprietary rights, and to the attempts of 
 English functionaries to separate the two may be 
 assigned some of the most formidable miscarriages 
 of Anglo-Indian administration. The Village Com- 
 munity is known to be of immense antiquity. In 
 whatever direction research has been pushed into 
 Indian history, general or local, it has always found 
 the Community in existence at the farthest point of 
 
OHAP, Yin. co- owyEnom p. 26i 
 
 its progress. A great number of intelligent and 
 observant writers, most of whom had no theory of 
 any sort to support concerning its nature and origin, 
 agree in considering it the least destructible institu- 
 tion of a society which never willingly surrenders 
 any one of its usages to innovation. Conquests and re- 
 volutions seem to have swept over it without disturb- 
 ing or displacing it, and the most beneficent systems 
 of government in India have always been those which 
 have recognised it as the basis of administration. 
 
 The mature Eoman law, and modem jurispru- 
 dence following in its wake, look upon co-ownership 
 as an exceptional and momentary condition of the 
 rights of property. This view is clearly indicated 
 in the maxim which obtains universally in Western 
 Europe, Nemo in communione potest invitus detineri 
 (" No one can be kept in co-proprietorship against his 
 will "). But in India this order of ideas is reversed, 
 and it may be said that separate proprietorship is al- 
 ways on its way to become proprietorship ia common. 
 The process has been adverted to already. As soon 
 as a son is bom, he acquires a vested interest in his 
 father's substarice, and on attaining years of dis- 
 cretion ,he is even, in certain contingencies, permitted 
 by the letter of the law to call for a partition of the 
 family estate. As a fact, however, a division rarely 
 takes place even at the death of the father, and the 
 property constantly remains undivided for several 
 
862 VILLAGE COJIMUNITIES. chai'. vtn. 
 
 generations, though every member of every genera- 
 tion has a legal right to an undivided share in it. 
 The domain thus held in common is sometimes ad- 
 ministered by an elected manager, but more generally, 
 and in some provmces always, it is managed by the 
 eldest agnate, by the eldegt representative of the 
 eldest line of the stock. \^uch an assemblage of 
 ioint proprietors, a body of kindred holding a domain 
 n.n common, is the simplest form of an Indian Village 
 Community, but the Community is more than a 
 brotherhood of relatives and more than an association 
 of partners. J) It is an organised society|fand besides 
 providingK)r the management "oTlthe^common fund, 
 it seldom fails to provide, by a complete staff of 
 functionaries, for internal government, for police, for . 
 the administration of justice, and for the apportion- 
 ment of taxes and public duties. 
 
 The process which I have described as that under 
 which a Village Community is formed, may be re- 
 garded as typical. Yet it is not to be supposed that 
 every Village Community in India drew together in 
 so simple a manner. ^ Although, in the North of India, 
 the archives, as I am informed, almost invariably 
 show that the Community was founded by a single 
 assemblage of blood-relations, they also supply infor- 
 mation that men of alien extraction have always, 
 from time to time, been engrafted on it, and a mere 
 purchaser of a share may generally, under certain 
 conditions, be admitted to the brotherhood. J In the 
 
CHAP. vm. VILLAGE COMMUNITIES. 208 
 
 Southvbf the Peninsula there are often Communities 
 which appear to have sprung not from one but from 
 two or more families: andy/there are some whose 
 composition is known to be entirely artificial /indeed, 
 the occasional aggregation of men of different castes 
 in the same society is fatal to the hypothesis of a com- 
 mon descent. ^Yet in all these brotherhoods either the 
 tradition is preserved, or the assumption made, of an 
 original common parentage. /Mountstuart Elphinstone, 
 who writes more particularly of the Southern Yillage 
 Communities, observes of them (History of India, 
 i. 126) : " The popular notion is that the Village 
 landholders are aU descended from one or more indi- 
 viduals who settled the Village; and that the only 
 exceptions are formed by persons who have derived 
 their rights by purchase or otherwise from members 
 of the original stock. The supposition is confirmed 
 by the fact that, to this day, there are only single 
 families of landholders in small villages and not many 
 in large ones; but each has branched out into so 
 many members that it is not uncommon for the whole 
 agricultural labour to be done by the landholders, 
 without the aid either of tenants or of labourers. 
 The rights of the landholders are theirs collectively, 
 and, though they almost always have a more or less 
 perfect partition of them, they never have an entire 
 separation. A landholder, for instance, can sell or 
 mortgage his rights; but he must first have the con- 
 sent of the Village, and the purchaser steps exactly 
 
264 TYPE OF THE COMMUNITY. chap. vin. 
 
 into his place and takes up all his obligations. Jf a 
 f family becomes extinct, its share returns to the com- 
 mon stock." 
 
 Some considerations which have been offered in the 
 fifth chapter of this volume will assist the I'eader, I 
 trust, in appreciating the significance of Elphinstone's 
 language. No institution of the primitive world is 
 likely to have been preserved to our day, unless it has 
 acquired an. elasticity foreign to its original nature 
 , through some vivifying legal fiction, ^he Village 
 Community then is not necessarily an assemblage of 
 blood-relations, but it is eiiher such an assemblige or 
 a body of co-proprietors formed on the model of an 
 ^association of kinsmen. The type with which it 
 should be compared is evidently not the Roman 
 Family, but the Eoman Gens or House. The Gens 
 was also a group on the model of the family; it was 
 the family extended by a variety of fictions of which 
 the exact nature was lost in antiquity. ^J In historical 
 times, its leading characteristics were the very two 
 which Elphin stone remarks in the Village Community. 
 There was always the assumption of a common origin, 
 an assumption sometimes notoriously at variance Avith 
 fact : and, to repeat the historian's words, " if a family 
 became extinct, its share returned to the common 
 stock." In old Roman law, unclaimed inheritances 
 escheated to the Gentiles. It is further suspected 
 by all who have examined their history that the 
 
eHAP. VIII. TTPE OF XHE COMMUNITY. 360 
 
 Communities, like the Gentes, have been very gene- 
 rally adulterated by the admission of strangers, but 
 the exact mode of absorption cannot now be ascer- 
 taiaed.v< ''At present, they are recruited,' as Elphin- 
 stone tells usj^i by the admission of purchasers, with 
 the consent of the brotherhood. The acquisition of 
 the adopted member is, however, of the nature of a 
 universal succession ; together with the share he has 
 bought, he succeeds to the habilities which the vendor 
 had incurred towards the aggregate group. He is an 
 Emptor FamUise, and inherits the legal clothing of 
 the person whose place he begins to fill. • The consent 
 of the whole brotherhood required for his admission 
 may remind us of the consent which the Comitia 
 Curiata, the Parliament of that larger brotherhood 
 of self-styled kinsmen, the ancient Eoman common- 
 wealth, so strenuously insisted on as essential to the 
 legalisation of an Adoption or the confirmation of a 
 Will. 
 
 The tokens of an extreme antiquity are discover- 
 able in almost every single feature of the Indian 
 Village Communities. We have so many independent 
 reasons for suspecting that the infancy of law is dis- 
 tinguished by the prevalence of co-ownership, by 
 the intermixture of personal with proprietary rights, 
 and by the confusion of public with private duties, 
 that we should be justified in deducing many im- 
 portant conclusions from our observation of these 
 
266 BUSSIAN VILLAGES. CHAP. TOl. 
 
 proprietary brotherhoods, even if no similarly com- 
 pounded societies could be detected in any other 
 part of the world. It happens, however, that much 
 earnest curiosity has been very recently attracted to 
 a similar set of phenomena in those parts of Europe 
 which have been most slightly aflfected by the feudal 
 transformation of property, and which in many 
 important particulars have as close an affinity with 
 the Eastern as with the Western world. The re- 
 searches of M. de Haxthausen, M. Tengoborski, and 
 others, have shown us that the Russian villages are 
 not fortuitous assemblages of men, nor are they 
 unions founded on contract; they are naturally or- 
 ganised communities like those of India. It is true 
 that these villages are always in theory the patrimony 
 of some noble proprietor, and the peasants have with- 
 in historical times been converted into the predial, 
 and to a great extent into the personal, serfs of the 
 seignior. But the pressure of this superior ownership 
 has never crushed the ancient organisation of the 
 village, and it is probable that the enactment of the 
 Czar of Eussia, who is supposed to have introduced 
 serfdom, was really intended to prevent the peasants 
 from abandoning that co-operation without which the 
 old social order could not long be maintained./ In 
 the~ assumption of an agnatic connection between the 
 villagers, in the blending of personal rights with pri- 
 vileges of ownership, and in a variety of spontaneous 
 
CHAP. vm. RUSSIAN AND CROATIAN VILLAGES. 267 
 
 provisions for internal administration, the Eussian 
 village appears to be a nearly exact repetition of the 
 Indian Oommunity; but there is one important dif- 
 ference which wjB note with the greatest interest. 
 The co-owners of an Indian village, though their pro- 
 perty is blended, have their rights distinct, and this 
 separation of rights is complete and continues indefi- 
 nitely. The severance of rights is also theoretically 
 complete in a Russian village, but there it is only 
 temporary. After the expiration of a given, but not 
 in all cases of the same, period, separate ownerships 
 are extinguished, the land of the village is thrown 
 into a mass, and then it is re-distributed among the 
 families composing the comnlunity, according to their 
 number. This repartition having been effected, the 
 rights of families and of individuals are again allowed 
 to branch out into various lines, which they contiSue" 
 to follow tiU another period of division comes round. 
 /An even more curious variation from this jbype of 
 ownership occurs in some of those countries which 
 long formed a debateable land between the Turkish 
 Empire and the possessions of the House of Austria. ' 
 In Servia, in Croatia, and the Austrian Sclavonia, ( 
 the villages are also brotherhoods of persons who are q 
 at once co-owners and kinsmen; but there the inter- 
 nal arrangements of the community differ from those 1 
 adverted to in the last two examples. The substance ' 
 of the common property is in this case neither divided 
 
3(58 VARIETIES OF THE COMMUNITY. chaf. vm. 
 
 in practice nor considered in theory as divisible, but 
 the entire land is cultivated 'by the combined labour 
 of all the villagers, and the produce is annually dis- 
 tributed among the households, sometimes according 
 to their supposed wants, sometimes according to rules 
 which give to particular persons a fixed share of the 
 usufruct. /AU these practices are traced by the jurists 
 of the East of Europe to a principle which is asserted 
 to be found in the earliest Sclavonian laws, the prin- 
 ciple that the property of families cannot be divided 
 for a perpetuity. 
 
 The great interest of these phenomena in an 
 inquiry like the present arises from the light they 
 throw on the development of distinct proprietary 
 rights inside the groups by which property seems to 
 have been originally held. ^We have the strongest 
 reason for thinking that property once belonged 
 not to individuals nor even to isolated families, but 
 to larger societies composed on the patriarchal model ; 
 but the niode of transition from ancient to modern 
 ownerships, obscure at best, would have been infi- 
 nitely obscurer if several distinguishable forms of 
 Tillage Communities had not been discovered and 
 examined. It is worth while to attend to the varieties 
 of internal arrangement within the patriarchal groups 
 which are, or were till recently, observable among 
 races of Indo-European blood. The chiefs of the 
 ruder Highland clans used, it is said, to dole out 
 
OHAP. Tm. VARIETIES OF THE COMMUNITY. 260 
 
 food to the heads of the households under their juris- 
 diction at the very shortest intervals, and sometimes 
 day by day. A periodical distribution is also made 
 to the Sclavonian villagers of the Austrian and 
 Turkish provinces by the elders of their body, but 
 then it is a distribution once for all of the total 
 produce of the year. In the Russian villages, how- 
 ever, the substance of the property ceases to be looked 
 upon as indi\dsible, and separate proprietary claims 
 are allowed freely to grow up, but then the progress 
 of separation is peremptorily ari'ested after it has 
 continued a certain time. In India, not only is there 
 no indivisibility of the common fund, but separate 
 proprietorship in parts of it may be indefinitely 
 prolonged and may branch out into any number of 
 derivative ownerships, ^e de facto partition of the 
 stock being, however, checked by inveterate usage, 
 and by the rule against the admission of strangers 
 without the consent of the brotherhood.^ It is not of 
 course intended to insist that these diflferent forms of 
 the Village Community represent distinct stages in a 
 process of transmutation which has been everywhere 
 accomplished in the same manner. But, though the 
 evidence does not warrant our going so far as this, it 
 renders less presumptuous the conjecture that private 
 property, in the shape in which we know it, was 
 chiefly formed by the gradual disentanglement of the 
 separate rights of individuals from the blended rights 
 
870 PROBLEM AS TO OBIGIN OF PEOPERTT, chap. Tin, 
 
 of a community, -y Our studies in tlie L aw of P ersoDs 
 seemed to show us the Family expanding into the 
 A^SSGc group of kinsmen, tken the Agnatic group 
 dissolving into separate households ; lastly, the house- 
 hold supplanted by the individual ; and it is now 
 suggested that each step in the change corresponds to 
 an analogous alteration in the nature of Ownership. V 
 If there be any li"uth in the suggestion, it is to be 
 observed that it materially affects the problem which 
 theorists on the origin of Property have generally 
 proposed to themselves. The question — perhaps an 
 insoluble one — which they have mostly agitated is, 
 what were the motives which first induced men to 
 respect each other's possessions ? It may still be put, 
 without much hope of finding an answer to it, in the 
 form of an inquiry into the reasons which led one 
 composite group to keep aloof from the domain of 
 another. But/if it be true that far the most im- 
 portant passage in the history of Private Property 
 is its gradual separation from the co-ownership of 
 kinsmen, then the great point of inquiry is identi- 
 cal with that which lies on the threshold of all 
 historical law — ^what were the motives which origi- 
 nally prompted men to hold together in the family 
 union ? To such a question. Jurisprudence, imas- 
 sisted by other sciences, is not competent to give a 
 reply- / The fact can only be noted. 
 
 The undivided state of property in ancient 
 
CHAI. Tin. ANCIENT DIFFICULTIES OF ALIENATION. 271 
 
 societies is consistent with a peculiar sharpness of 
 division, which shows itself as soon as any single 
 share is completely separated from the patrimony of 
 the group. This phenomenon springs, doubtless, 
 from the circumstance that the property is supposed 
 to become the domain of a new group, so that any 
 dealing with it, in its divided state, is a transaction 
 between two highly complex bodies. JI have already 
 compared Ancient Law to Modern International 
 Law, in respect of the size and complexity of the 
 corporate associations, whose rights and duties it 
 settles. As the contracts and conveyances known to 
 ancient law are contracts and conveyances to which 
 not single individuals, but organised companies of 
 men, are parties, they are in the highest degree cere- 
 monious; they require a variety of symbolical acts 
 and words intended to impress the business on the 
 memory of all who take part in it; and they de- 
 mand the presence of an inordinate number of wit- 
 nesses. From these peculiarities, and others allied 
 to them, springs the ''universally unmalleable charac- 
 ter of the ancient forms of property. ■/ Sometimes the 
 patrimony of the family is absolutely inalienable, as 
 was the case with the Sclavonians, and still oftener, 
 though alienations may not be entirely illegitimate, 
 they are virtually impracticable, as among most of 
 the Germanic tribes, from the necessity of having the 
 consent of a large number of persons to the transfer. 
 
 V 
 
272/ ANCIENT DIFFICULTIES OF ALIENATION. chap. Tin, 
 
 There these impediments do not exist, or can be 
 SfUrmounted, the act of conveyance itself is generally 
 burdened with a perfect load of ceremony, in which 
 fnot one iota can be safely neglected. Ancient law 
 uniformly refuses to dispense with a single gesture, 
 however grotesque; with a single syllable, however 
 its meaning may have been forgotten; with a single 
 witness, however superfluous may be his testimony. 
 The entire solemnities must be scrupulously com- 
 pleted by persons legally entitled to take part in it, 
 or else the conveyance is nuU, and the seller is 
 re-established in the rights of which he had vaialy 
 attempted to divest himself 
 
 * These various obstacles to the free circulation of 
 the objects of use and enjoyment, begin of course to 
 make themselves felt as soon as society has acquired 
 even a slight degree of activity, and the expedients 
 by which advancing communities endeavour to over- 
 come them form the staple of the history of Property.^ 
 Of such expedients there is one which takes prece- 
 dence of the rest from its antiquity and universality. 
 The idea seems to have spontaneously suggested 
 itself to a great number of early societies, m;o classify 
 property into kinds. ^/ One kind or sort of property 
 is placed on a lower footing of dignity than the 
 others, but at the same time is relieved from the 
 fetters which antiquity has imposed on them. Sub- 
 sequently, the superior convenience of the rules 
 
CHAP. vm. KINDS OF PEOPEETY. 273 
 
 governing the transfer and descent of the lower order 
 of property becomes generally recognised, and by a 
 gradual course of innovation the plasticity of the 
 less dignified class of valuable objects is communi- 
 cated to the classes which stand conventio nally 
 higher. The history of Roman Property Law is the 
 history of the assimilation of Res Mancipi to Res Nee 
 Mancipi, The history of Property on the European 
 Continent is the history of the subversion of the 
 feudalised law of land by the Romanised law of 
 moveables ; and though the history of ownership in 
 England is not nearly completed, it is visibly the 
 law of personalty which threatens to absorb and 
 annihilate the law of realty. 
 
 J The only natural classification of the objects of 
 enjoymentj'Jthe only classification which corresponds 
 with an essential difiference in the subject-matter, is 
 that which divides them into^oytjiablRa a^d TTnTTinyp- 
 ables. J Famihar as is this classification to juris- 
 prudence, it was very slowly developed by Roman 
 law, from which we inherit it, and was only finally 
 adopted by it in its latest stage. vThe classifications 
 of Ancient Law have sometimes a superficial resem- 
 blance to this. They occasionally divide property 
 tato categories, and place immoveables in one of them ; 
 but then it is found that they either class along 
 with immoveables a number of objects which have 
 no sort of relation with them, or else divorce them 
 
274 ANCIENT KINDS OF PEOPERTY. chap, vni. 
 
 from various riglits to wMch they have a close affi- 
 nity. Thus, the Kes Mancipi of Eoman Law included 
 not only land but slaves, horses, and oxen. Scottish 
 law ranks with land a certain class of securities, and 
 Hindoo law associates it with slaves. English law, 
 on the other hand, parts leases of land for years from 
 other interests in the soU, and joins them to per- 
 sonalty under the name of chattels real, y Moreover, 
 the classifications of Ancient Law are classifications 
 implying superiority and inferiority ; while the dis- 
 tinction between moveables and immoveables, so long 
 at least as it was confined to Roman jurisprudence, 
 carried with it no suggestion whatever of a difference 
 in dignity, v The Ees Mancipi, however, did certainly 
 at first enjoy a precedence over the Res Nee Man- 
 cipi,^as did heritable property in Scotland, and realty 
 in England, over the personalty to which they were 
 opposed. The lawyers of all systems have spared no 
 pains in striving to refer these classifications to some 
 intelligible principle ; but the reasons of the severance 
 must ever be vainly sought for in the philosophy of 
 law : they belong not to its philosophy, but to its 
 history. The explanation which appears to cover 
 the greatest number of instances is, that the objects 
 of enjoyment honoured above the rest were the forms 
 of property known first and earliest to each particular 
 community, and dignified therefore emphatically with 
 the designation of Property. On the other hand, the 
 
CHAP. vin. ANCIENT CLASSIFICATIONS 275 
 
 articles not enumerated among the favoured objects • 
 seem to have been placed on a lower standing, be- 
 cause the knowledge of their value was posterior to 
 the epoch at which the catalogue of superior pro- 
 perty was settled. They were at first unknown, rare, 
 Hmited in their uses, or else regarded as mere appen- 
 dages to the privileged objects. Thus, though the 
 Eoman Res Mancipi included a number of moveable 
 articles of great value, still the most costly jewels 
 were never allowed to take rank as Res Mancipi, be- 
 cause they were unknown to the early Romans. In 
 the same way chattels real in England are said to have 
 been degraded to the footing of personalty, from the 
 infrequency and valuelessness of such estates under 
 the feudal land-law. 'I But the grand point of interest 
 is the continued degradation of these commodities 
 when their importance had increased and their num- 
 ber had multiplied. "^ Why were they not successively 
 included among the favoured objects of enjoyment? 
 One reason is found in the stubbornness with which 
 Ancient Law adheres to its classifications. It is a 
 characteristic both of uneducated minds and of early 
 societies, that they are little able to conceive a 
 general rule apart from the particular applications 
 of it with which they are practically familiar. They 
 cannot dissociate a general term or maxim from the 
 special examples which meet them in daily expe- 
 rience ; and in this way the designation covering the 
 
 x2 
 
270 DEGRADATION OP INFEEIOR PEOPEETY. chap, viii; 
 
 best-knowu forms of property is denied to articles 
 which exactly resemble them in being objects of 
 enjoyment and subjects of right. But to these in- 
 fluences, which exert peculiar force in a subject-matter 
 so stable as that of law, are afterwards added others 
 more consistent with progress in enlightenment and 
 in the conceptions of general expediency. Courts 
 and lawyers become at last alive to the inconvenience 
 of the embarrassing formalities required for the 
 transfer, recovery, or devolution of the favoured 
 commodities, and grow unwilling to fetter the 
 newer descriptions of property with the technical 
 trammels which characterised the infancy of law. 
 Hence arises a disposition to keep these last on a 
 lower grade in the arrangements of Jurisprudence, 
 and to permit their transfer by simpler processes 
 than those which, in archaic conveyances, serve as 
 stumbling-blocks to good faith and stepping-stones 
 to fraud. We are perhaps in some danger of under- 
 rating the inconveniences of the ancient modes on 
 transfer. LDur instruments of conveyance are writ- 
 ten, so that their language, well pondered by the 
 professional draftsman, is rarely defective in accu- 
 racy. But an ancient conveyance was not written, 
 but acted. Gestures and words took the place of 
 written technical phraseology, and any formula mis- 
 pronounced, or symbolical act omitted, would have 
 vitiated the proceeding as fatally as a material mis- 
 
ObjlP. Till. DEFINITION OF KES MANCIPI. 277 
 
 take in stating the uses or setting out the remainders 
 would, two hundred years ago, have vitiated an 
 English deed. Indeed, the mischiefs of the archaic 
 ceremonial are even thus only half stated So long 
 as elaborate conveyances, written or acted, are re- 
 quired for the alienation of land alone, the chances 
 of mistake are not considerable in the transfer of a 
 description of property which is seldom got rid of 
 with much precipitationT) But the higher class of 
 property in the ancient world comprised not only 
 land but several of the commonest and several of the 
 most valuable moveables. When once the wheels of 
 society had begun to move quickly, there must have 
 been immense inconvenience in demanding a highly 
 intricate form of transfer for a horse or an ox, or for 
 'the most costly chattel of the old world — ^the Slave. 
 Such commodities must have been constantly and 
 even ordinarily conveyed with inconaplete forms, and ^ 
 held, therefore, under imperfect titlesj 
 /" J jTChe Kes Mancipi of old Eoman law were, land, — 
 ' in historical times, land on Italian soil, — slaves and 
 beasts of burden, such as horses and oxen. It is 
 impossible to doubt that the objects which make up 
 the class are the instruments of agricultural labour, 
 the commodities of first consequence to a primitive 
 people. 'I Such commodities were at first, I imagine, 
 called emphatically Things or Property, andxhe mode 
 of conveyance by which they were transferred was 
 
278 RES NKC MAJNCIPI. chap, vin, 
 
 called a Mancipium or Mancipation; but it was not 
 probably till much later that they received the dis- 
 tinctive appellation of Ees Mancipi, " Things which 
 require a Mancipation."! By their side there may 
 have existed or grown up a class of objects, for which 
 it was not worth while to insist upon the full cere- 
 mony of Mancipation, It would be enough if, in 
 transferring these last from owner to owner, a part 
 only of the ordinary formalities were proceeded with, 
 namely, that actual delivery, physical transfer, or 
 tradition, which is the most obvious index of a change 
 of proprietorship. Such commodities were the Res 
 Nee Mancipi of the ancient jurisprudence, " things 
 which did not require a Mancipation,'Vlittle prized 
 probably at first, and not often passed fi-om one group 
 of proprietors to another. ,^^WTiile, however, the list of 
 the Res Mancipi was irrevocably closed, that of the 
 Res Nee Mancipi admitted of indefinite expansion; "^ 
 and hence every fi-esh conquest of man over material 
 nature added an item to the Res Nee Mancipi, or 
 effected an improvement in those already recognised. 
 Insensibly, therefore, they mounted to an equality 
 with the Res Mancipi, and the impression of an in- 
 trinsic inferiority being thus dissipated, men began 
 to observe the manifold advantages of the simple 
 formality which accompanied their transfer over the 
 more intricate and more venerable ceremonial. ^Two 
 of the agents of legal amelioration. Fictions and 
 Equity, were assiduously employed by the Roman 
 
CHAP. vm. TRADITION. 279 
 
 lawyers to give the practical effects of a Mancipation, 
 to a Tradition, and, though. Roman legislators long 
 shrank from enacting that the right of property in a 
 Res Mancipi should be immediately transferred by 
 bare delivery of the article, yet even this step was at 
 last ventured upon by Justinian, in whose jurispru- 
 dence the difference between Res Mancipi and Res 
 Nee Mancipi disappears, and Tradition or Delivery 
 becomes the one great conveyance known to the law. 
 The marked preference which the Roman lawyers 
 very early gave to [Tradition jcaused them to assign 
 it a place in their theory which has helped to blind 
 their modem disciples to its true history. It Vas 
 classed among the "natural" modes of acquisition, 
 both because it was generally practised among the 
 Italian tribes, and because it was a process which 
 attained its object by the simplest mechanism. J If 
 the expressions of the jurisconsults be pressed, they 
 undoubtedly imply that)^Tradition, which belongs to 
 the Law Natui'al, is more ancient than Mancipation, 
 which is an institution of Civil Society; and this, I 
 need not say, is the exact reverse of the truth. -^ 
 
 The distinction between Res Mancipi and Res Nee 
 Mancipi is the type of a class of distinctions to which 
 civilisation is much indebted, distinctions which run, 
 through the whole mass of commoditiea, placing a few 
 of them in a class by themselves, and relegating the 
 others to a lower category. The inferior kinds of 
 
280 OTHEK ANCIENT CLASSIFICATIONS. cnAP. vin. 
 
 property are first, from disdain and disregard, re- 
 leased from the perplexed ceremonies in which primi- 
 tive law delights, and then afterwards, in another state 
 of intellectual progress, the simple methods of transfer 
 and recovery which have been allowed to come into 
 use serve as a model which condemns by its conve- 
 nience and simplicity the cumbrous solemnities in- 
 herited from ancient days. But in some societies, the 
 trammels in which Property is tied up are much too 
 complicated and stringent to be relaxed in so easy a 
 manner. Whenever male children have been born to 
 
 ' a Hindoo, the law of India, as I have stated, gives 
 them all an interest in his property, and makes their 
 consent a necessaiy condition of its alienation. In 
 the same spirit, the general usage of the old Germanic 
 peoples — ^it is remarkable that the Anglo-Saxon cuS't 
 toms seem to have been an exception — ^forbade aliena- 
 tions without the consent of the male children; and 
 the primitive law of the Sclavonians even prohibited 
 them altogether. It is evident that such impediments 
 as these cannot be overcome by a distinction between 
 kinds of property, inasmuch as the difficulty extends, 
 to commodities of all sorts ; and accordmgly,~^ Ancient 
 Law, when once launched on a course of improvement, 
 
 / encounters them with a distinction of another charac- 
 ter, a distinction classifying property, not according 
 to its nature but according to its original In India, 
 where there are traces of both systems of classifica- 
 
OHAP. Tin. INHEEITANCES AND ACQUISITIONS. 281 
 
 tion, the one which we are considering is exempli- 
 fied in the "idifference which' Hindoo -'law establishes 
 between Inheritances and Acquisitions. The inherited 
 property of the father is shared by the children as 
 soon as they are born ; but according to the custom 
 of most provinces, the acquisitions made by him 
 during his lifetime are whoUy his own, and can be 
 transferred by him at pleasure, A similar distinction 
 was not unknown to Roman Law, in which the earliest 
 innovation on the Parental Powers took the form of 
 a permission given to the son to keep for himself 
 whatever he might have acquired in military service. 
 But the most extensive use ever made of this mode of 
 classification appears to have been among the Ger- 
 mans. I have repeatedly stated that the allod^ though 
 not inalienable, was commonly transferable with the 
 greatest difficulty; and moreover, it descended ex- 
 clusively to the agnatic kindred. Hence an extraor- 
 dinary variety of distinctions came to be recognised, 
 all intended to diminish the inconveniences insepa- 
 rable from allodial property. The wehrgeld, for ex- 
 ample, or compesrtion for the homicide of a relative, 
 which occupies so large a space in German jurispru- 
 dence, formed no part of the family domaia, and 
 descended according to rules of succession altogether 
 different. Similarly, the reipus, or fine leviable on 
 the re-marriage of a widow, did not enter into the 
 aUod of the person to whom it was paid, and followed 
 
282 INHERITANCES AND ACQUISITIONS, chap. vm. 
 
 B line of devolution in which the privileges of the 
 agnates were neglected. The law, too, as among 
 the Hindoos, distinguished the Acquisitions of the 
 chief of the household from his Inherited property, 
 and permitted him to deal with them under much more 
 liberal' conditions. Classifications of the other sort 
 were also admitted, and the familiar distinction 
 drawn between land and moveables ; but moveable 
 property was divided into several subordinate cate- 
 gories, to each of which different rules applied. This 
 exuberance of classification, which may strike us as 
 strange in so rude a people as the German conquerors 
 of the Empire, is doubtless to be explained by the 
 presence in their systems of a considerable element 
 of Roman Law, absorbed by them during their long 
 sojourn on the confines of the Roman dominion. It 
 is not difficult to trace a great number of the rules 
 governing the transfer and devolution of the commo- 
 dities which lay outside the allod, to their source in 
 Roman jurisprudence, from which they were pro- 
 bably borrowed at widely distant epochs, and in 
 fragmentary importations. How far the obstacles to 
 the fi-ee circulation of property were surmounted by 
 such contrivances, we have not the means even of 
 conjecturing, for the distinctions adverted to have no 
 modem history. As I before explained, the allodial 
 form of property was entu'ely lost in the feudal, and 
 A when the consolidation of feudalism was once com- 
 
rmiP. vni. LAOT) ASD GOODS. ^83 
 
 pleted, there was practically but one distinction left 
 standing of all those which had been known to the 
 western world — the distinction between land and 
 goods, immoveables and moveables. Externally this 
 distinction was the same with that which Roman law 
 had finally accepted, but the law of the middle ages 
 difi'ered from that of Rome in distinctly consider- 
 ing immoveable property to be more dignified than 
 moveable, i/ Yet this one sample is enough to 
 show the importance of the class of expedients 
 to which it belongs. In all the countries governed 
 by systems based on the French codes, that is, 
 through much the greatest part of the Continent of 
 Europe, the law of moveables, which was always 
 Roman law, has superseded and annulled the feudal 
 law of land. England is the only country of import- 
 ance iu which this transmutation, though it has gone 
 some way, is not nearly accomplished. Our own, too, 
 it may be added, is the only considerable European 
 country in which the separation of moveables from 
 immoveables has been somewhat disturbed by the same 
 influences which caused the ancient classifications to 
 depart from the only one which is countenanced by 
 nature. In the main, the English distinction has been 
 between land and goods ; but a certain class of goods 
 have gone as heir-looms with the land, and a certain 
 description of interests in land have from historical 
 causes been ranked with personalty. This is not the 
 
S84 PKESCEIPTION. chap. Tin. 
 
 only instance in which English jurisprudence, stand- 
 ing apart from the main current of legal modification, 
 has reproduced phenomena of archaic law. 
 
 I proceed to notice one or two more contrivances 
 by which the ancient trammels of proprietary right 
 were more or less successfully relaxed, premising that 
 the scheme of this treatise only permits me to men- 
 tion those which are of great antiquity. On one of 
 them in particular it is necessary to dwell for a mo- 
 ment or two, because persons unacquainted with the 
 early history of law wiU not be easily persuaded that 
 a principle, of which modem jurisprudence has very 
 slowly and with the greatest difficulty obtained the 
 recognition, was really familiar to the very infancy of 
 legal science. There is no principle in all law whick 
 the moderns, in spite of its beneficial character, have 
 been so loath to adopt and to carry to its legitimate 
 consequences as that which was known to the Romans 
 as Usucapion, "and which has descended to inodern 
 jurisprudence under the name of Prescription.^ It 
 was a positive rule of the oldest Roman law,^a rule 
 older than the Twelve Tables, that commodities 
 which had been uninterruptedly possessed for a cer- 
 tain period became the property of the possessor.' 
 The period of possession was exceedingly short — 
 one or two years, according to the nature of the 
 commodities — and v in historical times Usucapion 
 was only allowed to operate when possession had 
 
cuAi'. vm. INFLUENCE OF CANON LAW. 285 
 
 commenced ia a particular way^; but I think it 
 likely thaf^at a less advanced epoch possession was 
 converted into ownership under conditions even less 
 severe i^han we read of in our authorities. As I 
 have said before, I am far from asserting that the 
 respect of men for de facto possession is a pheno- 
 menon which jurisprudence can account for by itself, 
 but it is very necessary to remark that primitive 
 societies, in adopting the principle of Usucapion, 
 were not beset with any of the speculative doubts 
 and hesitations which have impeded its reception 
 among the modems. Prescriptions were viewed by 
 the modem lawyers, first with repugnance, afterwards 
 with reluctant approval. In several countries, in- 
 cluding our own, legislation long declined to advance 
 beyond the rude device of barring all actions based 
 on a wrong which had been suffered earlier than 
 a fixed point of time in the past, generally the first 
 year of some preceding reign ; nor was it till the 
 middle ages had finally closed, and James the First 
 had ascended the throne of England, that we ob- 
 tained a true statute of limitation of a very im- 
 perfect kind. This tardiness in copying one of the 
 most famous chapters of Roman law, which was no 
 doubt constantly read by the majority of European 
 lawyers, the modern world owes to the influence of 
 the Canon Law. The ecclesiastical customs out of 
 which the Canon Law grew, concerned as they were 
 
286 INFLUENCE OF CANON LAW. chap. vm. 
 
 with sacred or quasi-sacred interests, very naturally 
 regarded the privileges which they conferred as in- 
 capable of being lost through disuse however pro- 
 longed ; and in accordance with this view, the spiri- 
 tual jurisprudence, when afterwards consolidated, was 
 distinguished by a marked leaning against Prescrip- 
 tions. It was the fate of the Canon Law, when held 
 up by the clerical lawyers as a pattern to secular legis- 
 lation, to have a peculiar influence on first principles. 
 It gave to the bodies of custom which were formed 
 throughout Europe far fewer express rules than did 
 the Roman law, but then it seems to have communi- 
 cated a bias to professional opinion on a surprising 
 number of fundamental points, and the tendencies 
 thus produced progressively gained strength as each 
 system was developed. One of the dispositions it 
 produced was a disrehsh for Prescriptions ; but I do 
 not know that this prejudice would have operated as 
 powerfully as it has done, if it had not fallen in 
 with the doctrine of the scholastic jurists of the 
 realist sect, who taught that, whatever turn actual 
 legislation might take, a right^ how long soever ne- 
 glected, was in point of fact indestructible. The 
 remains of this state Of feeling still exist. Wherever 
 the philosophy of law is earnestly discussed, ques- 
 tions respecting the speculative basis of Prescription 
 are always hotly disputed ; and it is still a point of 
 the greatest interest in France and Germany, whether 
 
CHAP, -rai. ROMAN USUCAPION. 287 
 
 a person who has been out of possession for a series 
 of years is deprived of his ownership as a penalty 
 for his neglect, or loses it through the summary inter- 
 position of the law in its desire to have a finis Kiium. 
 But no such scruples troubled the mind of early 
 •i Roman society. Their ancient usages directly took 
 away the ownership of everybody who had been out 
 of possession, under certain circumstances, during 
 one or two years, v' What was the exact tenor of the 
 rule of Usucapion in its earliest shape, it is not 
 easy to say ; but, taken with the limitations which 
 we find attending it in the books, it was a most use- 
 ful security against the mischiefs of a too cumbrous 
 system of conveyance. In order to have the benefit 
 of Usucapion, it was necessary that the adverse pos- 
 session should have begun in good faith, that is, with 
 belief on the part of the possessor that he was law- 
 fully acquiring the property, and it was further re- 
 quired that the commodity should have been trans- 
 ferred to him by some mode of ahenation which, 
 however unequal to conferring a complete title in the 
 particular case, was at least recognised by the law. 
 In the case therefore of a Mancipation, however 
 slovenly the performance might have been, yet if it 
 had been carried so far as to involve a Tradition or 
 Delivery, the vice of the title would be cured by 
 Usucapion in two years at most. I know nothing in 
 the practice of the Romans which testifies so strongly 
 
288 COLLUSIVE EECOVBEIES. chap. mi. 
 
 to their legal genius as the use which they made of 
 Usucapion. The difficulties which beset them were 
 nearly the same with those which embarrassed and 
 still embarrass the lawyers of England. Owing to 
 the complexity of their system, which as yet they 
 had neither the courage nor the power to recon- 
 struct, actual right was constantly getting divorced 
 from technical right, the equitable ownership from 
 the legal. ^But Usucapion, as manipulated by the 
 ^^-^jurisconsults, supplied a self-acting machinery, by 
 which the defects of titles to property were always 
 in course of being cured, and by which the owner- 
 ships that were temporarily separated were again 
 rapidly cemented together with the briefest possible 
 delay. "^ Usucapion did not lose its advantages till 
 the reforms of Justinian. But as soon as law and 
 equity had been completely fused, and when Manci- 
 pation ceased to be the Roman conveyance, there was 
 no further necessity for the ancient contrivance, and 
 Usucapion, with its periods of time considerably 
 lengthened, became the Prescription which has at 
 length been adopted by nearly all systems of modern 
 law. 
 
 I pass by with brief mention another expedient 
 having the same object with the last, which, though it 
 did not immediately make its appearance in EngUsh 
 legal history, was of immemorial antiquity in Roman 
 law; such indeed is its apparent age that some 
 
 i i 
 
CHAP. TTH. COLLUSIVE RECOVERIES. 389 
 
 German civilians, not sufficiently aware of the light 
 thrown on the subject by the analogies of English 
 law, have thought it even older than the Mancipa- 
 tion. I speak of '^the Cessio in Jure, a collusive 
 recovery, in a Court of Law, of property sought to 
 be conveyed. ^''The plaintiff claimed the subject of 
 this proceeding with the ordinary forms of a litiga- 
 tion ; the defendant made default; and the commodity 
 was of course adjudged to the plaintiff. I need 
 scarcely remind the English lawyer that this ex- 
 pedient suggested itself to our forefathers, and pross 
 duced those famous Fines and Eecoveries which did 
 so much to undo the harshest trammels of the feudal 
 land-law. The Ronian and English contrivances 
 have very much in common and illustrate each other 
 most instructively, but there is this difference be- 
 tween them, that the object of the English lawyers 
 was to remove complications already introduced into 
 the title, while the Roman jurisconsults sought to 
 prevent them by substituting a mode of transfer 
 necessarily unimpeachable for one which too often 
 miscarried. The device is in fact one which sug- 
 gests itself as soon as Courts of Law are in steady 
 operation, but are nevertheless still under the. em- 
 pire of primitive notions. In an advanced state of 
 legal opinion, tribunals regard collusive Htigation 
 as an abuse of their procedure; but there has 
 always been a time when, if their forms were 
 
 V 
 
290 PEOPEETY AND POSSESSION. chap, vm, 
 
 scrupulously complied with, they never dreamed of 
 lookiijg further. 
 
 The influence of Courts of Law and of their proce- 
 dure upon Property has been most extensive, but the 
 subject is too large for the dimensions of this treatise, 
 and would carry us further down the course of legal 
 history than is consistent with its scheme. It is 
 desirable, however, to mention, that to this influence 
 we must attribute the importance of the distinction 
 between^Property and_ Possession — ^not, indeed, the 
 distinction itself, which (in the language of an eminent 
 English civilian)^s the same thing as the distinction 
 between the legal right to act upon a thing and the 
 physical power to do so^^but the extraordinary im-' 
 portance which the distinction has obtained in the 
 philosophy of law.v/ Few educated persons are so 
 little versed in legal literature as not to have heard 
 that the l§,nguage of the Eoman jurisconsults on the 
 subject of Possession long occasioned the greatest 
 possible perplexity, and that the genius of Savigny 
 is supposed to have chiefly proved itself by the solu- 
 tion which he discovered for the enigma. vPossession,*^ 
 in fact,ywhen employed by the Roman lawyers/ ap- 
 pears to have contracted a shade of meaning not 
 easily accounted for. The word, as appears from its 
 etymology, must have originally denoted physical 
 contact or physical contact resumeable at pleasure; 
 but as actually used, without any qualifying epithet. 
 
CHAP. vni. PEOrEETX AOT) POSSESSION. 291 
 
 if^ignifie^ not simply physical detention, but physical 
 detention coupled with the intention to hold the thing 
 detained as one's owny Savigny, following Niebuhr, 
 perceived that for this anomaly there could only be a 
 historical origin. He pointed out that theVPatrician 
 burghers of Rome, "who had become tenantsv6f the 
 greatest part of the public domain at nominal rents, 
 were, in the view of the old Roman law, mere posses- 
 sors, but then they were possessors intending to keep 
 their land against all comers. They, in truth, put 
 forward a claim almost identical with that which has 
 recently been advanced in England by the lessees of 
 Chur&li lands. Admitting that in theory theTTvere the 
 tenants- at-will of the State, they contended that time 
 and undisturbed enjoyment had ripened their holding 
 into a species of ownership, and that it would be 
 Tihjust to 6ject them for the purpose of redistributing 
 the domain. Thie association of this claim with the 
 Patrician tenancies; permanently influenced the sense 
 of "possession." MeanwhUevthe only legal remedies 
 of which the tenants could avail themselves, if ejected 
 or threatened with disturbance, were the Possessory 
 Interdicts, summary pirocesses of Roman law which 
 were either expl'esdy devised by the Praetor for their 
 protectit)n, or else, 'acfeOrding to another theory, had 
 in oldbr times been employed for the provisional 
 maintenance of possessions pending the settlement of 
 questions of legal right.\/ It came, therefore, to be 
 
 172 
 
202 PROPERTY AM) POSSESSION. ch,ip. tui. 
 
 understood that everybody who possessed property as 
 his own had the power of demanding the Interdicts, 
 and, by a system of Mghly artificia;! pleading, the 
 Interdictal process was moulded into a shape fitted 
 for the trial of conflicting claims to a disputed pos- 
 session. Then commenced a movement which, as 
 Mr. John Austin pointed out, exactly reproduced 
 itself in English law. Proprietors, domini, began to 
 prefer the simpler forms or speedier course of the 
 Interdict to the lagging and intricate formalities of 
 the Real Action, and for the purpose of availing 
 themselves of the possessory remedy fell back upon 
 the possession which was supposed to be involved in 
 their proprietorship. The liberty conceded to persons 
 who were not true Possessors, but Owners, to vindicate 
 their rights by possessory remedies, though it may 
 have been at first a boon, had ultimately the efifect of 
 seriously deteriorating both Enghsh and Roman juris- 
 prudence. The Roman law owes to it those subtleties 
 on the subject of Possession which have done so much 
 to discredit it, while English law, after the actions, 
 which it appropriated to the recovery of real property 
 had fallen into the most hopeless confusion, got rid . 
 at last of the whole tangled mass by a heroic remedy. 
 No one can doubt that the virtual abolition of the 
 English real actions which took place nearly thirty 
 years since was a public benefit, but still persons sen- 
 sitive to the harmonies of jurisprudence will lament 
 
CHAP. vm. LAW AND EQUITY. 203 
 
 that, instead of cleansing, improving, and simplifying 
 the true proprietary actions, we sacrificed them all 
 to the possessory action of ejectment, thus basing our 
 whole system of land recovery upon a legal fiction. 
 ^ Legal tribunals have also powerfully assisted to 
 shape and modify conceptions of proprietary right by 
 means of the distinction between Law and Equity, / 
 which always makes its first appearance as a distinc- 
 tion between jurisdictions. Equitable property in 
 England is simply property held under the jurisdic- 
 tion of the Court of Chancery. At Rome, the Prae- 
 tor's Edict introduced its novel principles in the guise 
 of a promise that under certain circumstances a par- 
 ticular action or a particular plea would be granted ; 
 and, accordingly, the property in bonis, or Equitable 
 Property, of Roman Law was property exclusively 
 protected by remedies which had their source in the 
 Edict. ^J The mechanism by which equitable rights 
 were saved from being overridden by the claims of 
 the legal owner was somewhat different in the two 
 systems. With us their independence is secured 
 by the Injunction of the Court of Chancery. Since, 
 however. Law and Equity, whUe not as yet consoli- 
 dated, were administered under the Roman system 
 by the same Court, nothing like the Injunction was 
 required, and the Magistrate took the simpler course 
 of refusing to grant to the Civil Law Owner those 
 actions and pleas by which alone he could obtain the 
 
294 EQUITABLE PROPEETT. chap. Tin. 
 
 property that belonged in equity to another. But 
 the practical operation of both systems was nearly 
 the same. vBoth, by means of a distinction in proce- 
 dure, were able to preserve new forms of property in 
 a sort of provisional existence, until the time should 
 come when they were recognised by the whole law.^/ 
 In this way, the Eoman Praetor gave an immediate 
 right of property to the person who had acquired a 
 Res Mancipi by mere delivery, without waiting for 
 the ripening of Usucapion. t/Similarly he in time re- 
 cognised an ownership iu the Mortgagee, who had at 
 first been a mere " bailee " or depositary, and in the 
 Emphyteuta, or tenant of land which was subject to 
 a fixed perpetual rent. Following a parallel line of 
 progresSj^the English Court of Chancery ''created a 
 special proprietorship forVthe Mortgagor, for the 
 Cestui que Trust, for the Married Woman who had 
 the advantage of a particular kind of settlement, and 
 for"4he Purchaser who had not yet acquired a com- 
 plete legal ownership. AU these are examples in 
 which forms of proprietary right, distinctly new, 
 were recognised and preserved. But indirectly Pro- 
 perty has been affected in a thousand ways by equity, 
 both in England and at Rome. Into whatever comer 
 of jurisprudence its authors pushed the powerful in- 
 strument in their command, they were sure to meet, 
 and touch, and more or less materially modify the 
 law of property. When in the preceding pages I have 
 
CHAP. Tin. FEUDAL VIEW OF OWNERSHIP. 295 
 
 spoken of certain ancient legal distinctions and expe- 
 dients as having powerfully aflfiected the history of 
 ownership, I must be understood to mean that the 
 greatest part of their influence has arisen fr<om the 
 hints and suggestions of improvement infused by 
 them into the mental atmosphere which was breathed 
 by the fabricators of equitable systems. 
 
 But to describe!' the influence of Equity on Owner- 
 shipv'would be to write its history down to our own 
 days. <[ have alluded to it principally because several 
 esteemed contemporary writers have thought that in 
 the Roman severance of Equitable from Legal property 
 we have the clue to that difference in the conception 
 of Ownership, which apparently distinguishes the law 
 of the middle ages from the law of the Roman Em- 
 pire. , The leading characteristic of the feudal con- 
 ception is its recognition of a double proprietorship, 
 the superior ownership of the lord of the fief coexist- 
 ing vpith the inferior property or estate of the tenant. 
 NoWj^this duplication of proprietary right' looks, it is 
 urged, extremely like a generalised form of the Ro- 
 man distribution of rights over property into Quiri- 
 tarian or legal, and' (to use a word of late origin) 
 Bonitarian or equitable. *^ Gains himself observes 
 upon the splitting of dominion into two parts as a 
 singularity of Roman law, and expressly contrasts it 
 with the entire or allodial ownership to which other 
 nations were accustomed. Justinian, it is true, 
 
296 ROMAN AND BAEBAEIAN LAW. chap. vm. 
 
 reconsolidated dominion into one, but then it was the 
 partially reformed system of the Western Empire, 
 and not Justinian's jurisprudence, with which the 
 barbarians were in contact during so many centuries. 
 While they remained poised on the edge of the Em- 
 pire, it may well be that they learned this distinction, 
 which afterwards bore remarkable fruit. In favour 
 of this theory, it must at all events be admitted that 
 the element of Roman law in the various bodies of 
 barbarian custom has been very imperfectly ex- 
 amined. The erroneous or insufficient theories which 
 have served to explain Feudalism resemble each other 
 in their tendency to draw off attention from this par- 
 ticular ingredient in its texture. The older investiga- 
 tors, Avho have been mostly followed in this country, 
 attached an exclusive importance to the circumstances 
 of the turbulent period during which the Feudal 
 system grew to maturity ; and in later times a new 
 source of error has been added to those already exist- 
 ing, in that pride of nationality which has led German 
 writers to exaggerate the completeness of the social 
 fabric which their forefathers had built up before 
 their appearance in the Eoman world. One or two 
 English inquirers who looked in the right quarter 
 for the foundations of the feudal system, failed never- 
 theless to conduct their investigations to any satis- 
 factory result, either from searching too exclusively 
 for analogies in the compilations of Justinian, or from 
 
CHAP, vm, ROMAN AND BABBABIAN LAW. 297 
 
 confining their attention to the compendia of Roman 
 law which are found appended to some of the extant 
 barbarian codes. But, if Roman jurisprudence had 
 any influence on the barbarous societies, it had pro- 
 bably produced the greatest part of its efifects before 
 the legislation of Justinian, and before the prepara- 
 tion of these compendia. It was not the reformed 
 and purified jurisprudence of Justinian, but the 
 undigested system which prevailed in the Western 
 Empire, and which the Eastern Corpus Juris never 
 succeeded in displacing, that I conceive to have 
 clothed with flesh and muscle the scanty skeleton of 
 barbarous usage. The change must be supposed 
 to have taken place before the Germanic tribes had 
 distinctly appropriated, as conquerors, any portion 
 of the Roman dominions, and therefore long before 
 Germanic monarchs had ordered breviaries of Roman 
 law to be drawn up for the use of their Roman 
 subjects. The necessity for some such hypothesis 
 will be felt by everybody who can appreciate the 
 difference between archaic and developed law. Rude 
 as are the Leges Barbarorum which remain to us, 
 they are not rude enough to satisfy the theory of 
 their purely barbarous origin; nor have we any 
 ^eason for believing that we have received, in written 
 records, more than a fraction of the fixed rules which 
 were practised among themselves by the members of 
 the conquering tribes. If we can once persuade 
 
293 THE EMPHYTEUSIS. chap. Ttn. 
 
 ourselves that . a considerable element of debased 
 Roman law already existed in the barbarian systems, 
 we shall have done something to remove a grave 
 difficulty. The German Law of the conquerors and 
 the Roman law of their subjects would not have com- 
 bined if they had not possessed more affinity for each 
 other than refined jurisprudence has usually for the 
 customs of savages. It is extremely likely that the 
 codes of the barbarians, archaic as they seem, are 
 only a compound of true primitive usage with half- 
 understood Roman rules, and that it was the foreign 
 ingredient which enabled them to coalesce with a 
 Roman jurisprudence that had already receded 
 somewhat from the comparative finish which it 
 had acquired under the Western Emperors. 
 
 But, though all this must be allowed, there are 
 several considerations which render it unlikely that 
 the feudal form of ownership was directly suggested 
 by the Roman duplication of domainial rights. The 
 distinction between legal and equitable property 
 strikes one as a subtlety little likely to be appre- - 
 ciated by barbarians; and, moreover, it can scarcely'- 
 be understood unless Courts of Law are contem- 
 plated in regular operation. But the strongest reason 
 against this theory is the existence in Roman law of 
 a form of property — a creation of Equity, it is true 
 — which supplies a much simpler explanation of the 
 transition from one set of ideas to the other. This 
 
CHAP. TEL SYSTEMS OF TENANCY. 2»9 
 
 is the Emphyteusis, .upon which the Fief of the 
 middle ages has often been fathered, though without 
 much knowledge of the exact share which it had in 
 bringing feudal ownership into the world. The 
 truth is that the Emphyteusis, not probably as yet 
 known by its Greek designation, marks one stage in 
 a current of ideas which led ultimately to feudg-lism. 
 (/The first mention in Roman history of estates larger 
 than could be farmed by a Paterfamilias, with his 
 household of sons and slaves, occui:s when we come 
 to the holdings of the Roman patricians. These 
 great proprietors appear to have had no idea of any 
 system of farming by free tenants. Their latifundia 
 seem to have been universally cultivated by slave- 
 gangsy under bailiflfs who were themselves slaves or 
 freedmen; and ''the only organisation attempted ap- 
 pears to have consisted in dividing the inferior slaves 
 into small bodies, and making them the pecuHum of 
 the better and trustier sort, who thus acquired a kind 
 of interest in the efficiency of their labour, v This 
 system was, however, especially disadvantageous to 
 one class of estated proprietors, the Municipalities. 
 Functionaries in Italy were changed with the ra- 
 pidity which often surprises us in the administration 
 of Rome herself; so that the superintendence of a 
 large landed domain by an Italian corporation must 
 have been excessively imperfect. AccordinglyVwe are 
 told that with the municipalities began the practice 
 
300 THE COLOIfl. chap. Tiir. 
 
 of letting out agri vectigales. that is, of leasing land 
 for a' perpetuity to a free tenant, at a fixed rent, and 
 under certain conditions. The plan was afterwards 
 extensively imitated by individual proprietors, and 
 the tenant, whose relation to the owner had origi- 
 nally been determined by his contract, was subse- 
 quently recognised by the Pra3tor as having himself 
 a qualified proprietorship, which in time became 
 known as an Emphyteusis. From this point the his- 
 tory of tenure parts into two branches. In the course 
 of that long period during which our records of the 
 Roman Empire are most incomplete^the slave-gangs 
 of the great Roman families became transformed 
 into the colonic whose origin and situation constitute 
 one of the obscurest questions in all history. We 
 may suspect that they were formed partly by the ele- 
 vation of the slaves, and partly by the degradation of 
 the free farmers /and that they prove the richer classes 
 of the Roman Empire to have become aware of the 
 increased value which landed property obtains when 
 the cultivator has an interest in the produce of the 
 land. We know that their servitude was predial; 
 that it wanted many of the characteristics of absolute 
 slavery, and that they acquitted their service to the 
 landlord in rendering to him a fixed portion of the 
 annual crop. We know further that they survived all 
 the mutations of society in the ancient and modern 
 worlds. Though included in the lower courses of the 
 
CHAP. Tin. THE EMPHYTEUSIS. 301 
 
 feudal structure, they continued in many countries tx) 
 render to the landlord precisely the same dues which * 
 they had paid to the Koman dommus, and from a 
 particular class among them, the coloni medietarii, 
 who reserved half the produce for the owner, are 
 descended the metayer tenantry, who stUl conduct 
 the cultivation of the soil in almost all the South of 
 Europe. On the other hand,v'the Emphyteusis, if we 
 may so interpret the allusions to it in the Corpus 
 Juris, became a favourite and beneficial modification 
 of property ; and it may be conjectured that wherever 
 free farmers existed, it was this tenure which regu- 
 lated their interest in the land. vThe Praetor, as has 
 been said, treated the Emphyteuta as a true proprietor. ^ 
 When ejected, he was allowed to reinstate himself by 
 a Real Action, the distinctive badge of proprietary 
 right, and he was protected from disturbance by the 
 author of his lease so long as the canon, or .quit-rent, 
 was punctually paid. ''^But at the same time it must 
 not be supposed that the ownership of the author of 
 the lease was either extiuct or dormant. It was kept 
 alive by a power of re-entry on non-payment of the 
 rent, a right of pre-emption in case of sale, and a 
 certain control over the mode of cultivation. .,We 
 have, therefore, in the Emphyteusis a striking ex- 
 ample of the double ownership which chai'acterised 
 feudal property, and one, moreover, which is much 
 simpler and much more easily imitated than the 
 
802 ORIGIIf OF TENUEE. ctiae. vnt^. 
 
 juxtaposition of legal and equitable rights^ The 
 history of the Roman tenure does not end, however, 
 at this point. I We have clear evidence that between 
 the gteat fortresses which, disposed along the line of 
 the Rhine and Danube, long secured the frontier of 
 the Empire against its barbarian neighbours, . there 
 extended a succession of strips of land, "Ihe agri 
 limitropM, which were Occupied by veteran soldiers of 
 the Roman army on the terms of an Emphyteusis! : 
 There was a double ownership. The Roman State 
 was landlord of the soHj but the soldiers cultivated 
 it without disturbance so long as they held themselves 
 ready to be called out for military service whenever 
 the staie of the border should require it."^ In fact, a 
 sbrt of garrison-duty, under a system closely resem- 
 bling that of the military colonies on the Austro- 
 Turkish border, had taken the place of the quit-rent 
 which was the service of the ordinary Emphyteuta. 
 It seems impossible to doubt that this' was the 
 precedent copied by the barbarian monarchs who 
 founded feudalism. It had been within their view 
 for some hundred years, ' and many of the veterans 
 who guarded the border were, it is to be remembered, 
 themselves of barbarian extraction, who probably 
 spoke the Germanic tongues. Not only does the prox'?! 
 imity of so easily followed a model explain whence 
 the Frankish and Lombard Sovereigns got the idea 
 of securing the military service of their followers 
 
CHAP. vm. FEUDAL SEKVICES. 303 
 
 by granting away portions of tlieir public domain ; 
 but it perhaps explains the tendency which imme- 
 diately showed itself in the Benefices to become here- 
 ditary/for an Emphyteusis, though capable of being 
 moulded to the terms of the original contract, never- 
 theless descended as a general rule to the heirs of the 
 granteeX It is true that the holder of a benefice, and 
 more recently the lord of one of those fiefs into which 
 the benefices were transformed, appears to have owed 
 certain services which were not likely to have been 
 rendered by the military colonist, and were certainly 
 not rendered by the Emphyteuta. The duty of 
 respect and gratitude to the feudal superior, the 
 obligation to assist in endowing his daughter and 
 equipping his son, the liability to his guardianship 
 in minority, and many other similar incidents of 
 tenure, must have been literally borrowed fi-om the 
 relations of Patron and Freedman under Eoman law, 
 that is, of quondam-master and quondam-slave. " But 
 then it is known that the earliest beneficiaries were 
 the personal companions of the sovereign, and it is 
 indisputable that this position, brilliant as it seems, 
 was at first attended by some shade of servile debase- 
 ment. The person who ministered to the Sovereign 
 iu his Court had given up something of that absolute 
 personal freedom which was the proudest privilege of 
 the allodial proprietor. 
 
304 SPHERE OF CON'TRACT. chap. ix. 
 
 CHAPTER IX. 
 
 THE EARLY HISTORY OF CONTRACT. 
 
 There are few general propositions concerning the 
 age to which we belong which seem at first sight 
 likely to be received with readier concurrence 
 than the assertion that the society of our day is 
 mainly distinguished from that of preceding gene- 
 rations by the largeness of the sphere which is 
 occupied in. it by Contract. Some of the phenomena 
 on which this proposition rests are among those 
 most frequently singled out for notice, for comment, 
 and for eulogy. Not many of us are so unobservant 
 as not to perceive that in innumerable cases where old 
 law fixed a man's social position irreversibly at his 
 birth, modern law allows him to create it for himself by 
 convention; and indeed several of the few exceptions 
 which remain to this rule are constantly denounced 
 with passionate indignation. The point, for instance, 
 which is really debated in the vigorous controversy 
 still carried on upon the subject of negro servitude, 
 is whether the status of the slave does not belong 
 to by-gone institutions, and whether the only relation 
 between employer and labourer which commends 
 
CUAP. IX. CONTRACT AND POLITICAL ECONOMY. 305 
 
 itself to modern morality be not a relation deter- 
 mined exclusively by contract. The recognition of 
 this difference between past ages and the present 
 enters into the very essence of the most famous 
 contemporary speculations. It is certain that the 
 science of Political Economy, the only department 
 of moral inquiry which has made any considerable 
 progress in our day, would fail to correspond with 
 the facts of life if it were not true that Imperative 
 Law had abandoned the largest part of the field 
 which it once occupied, and had left men to settle 
 rules of conduct for themselves with a liberty never 
 allowed to them till recently. The bias indeed of most 
 persons trained in political economy "is to consider 
 the general truth on which their science reposes as 
 entitled to become universal, and, when they apply 
 it as an art, their efforts are ordinarily directed to 
 enlarging the province of Contract and to curtailing 
 that of Imperative Law, except so far as law is 
 necessary to enforce the performance of Contracts. 
 The impulse given by thinkers who are under the 
 influence of these ideas is beginning to be very 
 strongly felt in the Western world. Legislation has 
 nearly confessed its inability to keep pace with the 
 activity of man in discovery, in invention, and in the 
 manipulation of accumulated wealth; and the law 
 even of the least advanced communities tends more 
 and more to become a mere surface-stratum, having 
 
 X 
 
306 CUEEENT OPINIONS AS TO CONTEACT. chap. ix. 
 
 under it an ever-changing assemblage of contractual 
 rules with which it rarely interferes except to com- 
 pel compliance with a few fundamental principles, 
 or unless it be called in to punish the violation of 
 good faith. 
 
 Social inquiries, so far as they depend on the con- 
 sideration of legal phenomena, are in so backward 
 a condition that we need not be surprised at not 
 finding these truths recognised in the commonplaces 
 which pass current concerning the progress of so- 
 ciety. These commonplaces answer much more to 
 our prejudices than to our convictions. The strong 
 disinclination of most men to regard morahty as 
 advancing seems to be especially powerful when the 
 virtues on which Contract depends are in question, 
 and many of us have an almost instinctive reluctance 
 to admitting that good faith and trust in our fellows 
 are more widely diffused than of old, or that there 
 is anything in contemporary manners which parallels 
 the loyalty of the antique world. From time to 
 time, these prepossessions are greatly strengthened 
 by the spectacle of frauds, unheard of before the 
 period at which they were observed, and astonishing 
 from their complication as well as shocking from their 
 criminality. But the very character of these frauds 
 shows clearly that, before they became possible, the 
 moral obligations of which they are the breach must 
 have been more than proportionately developed. It 
 
anAl". IX. THEPT AND BREACH OF TRUST, 307 
 
 is the confidence reposed and deserved by th.e many 
 which affords facilities for the bad faith of the few, 
 so that, if colossal examples of dishonesty occur, 
 there is no surer conclusion than that scrupulous 
 honesty is displayed in the average of the trans- 
 actions which, in the particular case, have supplied 
 the delinquent with his opportunity. If we insist 
 on reading the history of morality as reflected in 
 jurisprudence, by turning our eyes not on the law 
 of Contract but on the law of Crime, we must be 
 careM that we read it aright. Th e only form of- 
 dishonesty treated of in the most ancient Roman 
 law~i8 TEStT At the moment at which I write, 
 the newest chapter in the English criminal law is 
 one which attempts to prescribe punishment for 
 the frauds of Trustees. The proper inference from 
 this contrast is not that the primitive ' Romans 
 practised a higher morality than ourselves. We 
 should rather say that, in the interval between their 
 days and ours, morality has advanced from ia very 
 riide to a highly refined conception — ^from viewing 
 the rights of property as exclusively sacred, ' to 
 looking upon the rights growing out of the mere 
 unilateral reposal of confidence as entitled t6 the 
 protection of the penal law. ' 
 
 The definite theories of jurists are scarcely nearer 
 the truth in this point than the opinions of the 
 multitude. To begin with the views of the Roman 
 
 X 2 
 
308 THEORIES OF CONTBACT. chat, vs. 
 
 lawyers, we find them inconsistent with the true 
 history of moral and legal progress. One class 
 of contracts, in which the plighted faith of the con- 
 tracting parties was the only material ingredient, 
 they specifically denominated Contracts juris gentium, 
 and though these contracts were undoubtedly the 
 latest born into the Roman system, the expression em- 
 ployed implies, if a definite meaning be extracted 
 from it, that they were more ancient than certain 
 other forms of engagement treated of in Roman law, 
 in which the neglect of a mere technical formahty was 
 as fatal to the obligation as misunderstanding or 
 deceit. But then the antiquity to which they were re- 
 ferred was vague, shadowy, and only capable of being 
 understood through the Present; nor was it until 
 the language of the Roman lawyers became the 
 language of an age which had lost the key to their 
 mode of thought that a " Contract of the Law of 
 Nations " came to be distinctly looked upon as a 
 Contract known to man in a state of Nature. 
 Rousseau adopted both the juridical and the popular 
 error. In the Dissertation on the effects of Art and 
 Science upon Morals, the first of his works, which at- 
 tracted attention and the one in which he states most 
 unreservedly the opinions which made him the founder 
 of a sect, the veracity and good faith attributed to the 
 ancient Persians are repeatedly pointed out as traits 
 of primitive innocence which have been gradually- 
 
oniP, IX. THE SOCIAL COMPACT. 309 
 
 obliterated by civilisation ; and at a later period 
 he found a basis for all his speculations in the 
 doctrine of an original Social Contract. The So- 
 cial Contract or Compact is the most systematic 
 form which has ever been assumed by the error 
 we are discussing. It is a theory which, though 
 nursed into importance by political passions, de- 
 rived all its sap from the speculations of lawyers. 
 True it certainly is that the famous Englishmen, for 
 whom it had first had attraction, valued it chiefly 
 for its political serviceableness, but, as I shall pre- 
 sently attempt to explain, they would never have 
 arrived at it, if politicians had not long conducted 
 their controversies in legal phraseology. Nor were 
 the English authors of the theory bhnd to that 
 speculative amplitude which recommended it so 
 strongly to the Frenchmen who inherited it from 
 them. Their writings show they perceived that it 
 could be made to account for all social, quite as well 
 as for aU political phenomena. VThey had observed i 
 the fact, already striking in their day, that of the 
 positive rules obeyed by men, the greater part were 
 created by Contract, the lesser by Imperative Law. 
 But they were ignorant or careless of the historical 
 relation of these two constituents of jurisprudence. 
 It was for the purpose, therefore, of gratifying their 
 speculative tastes by 'attributing all jurisprudence 
 to a uniform source, as much as with the view of 
 
810 ANALYSIS OF SOCIAL PHENOMENA. chap, n 
 
 eluding the doctrines which claimed a divine parent- 
 age for Imperative Law, that they devised the theory 
 that all Law had its origin ia Contract. In another 
 stage of thought, they would have been satisfied to 
 leave their theory in the condition of an ingenious 
 hypothesis or a convenient verbal formula. But that 
 age was under the dominion of legal superstitions. 
 The State of Nature had been talked about till -it 
 had ceased to be regarded as paradoxical, and hence 
 it seemed easy to give a fallacious reality and defi- 
 niteness to the contractual origin of Law by insisting 
 on the Social Compact as a historical fact. 
 
 Our own generation has got rid of these erroneous 
 juridical theories, partly by outgrowing the intel- 
 lectual state to which they belong, and partly by 
 almost ceasiag to theorise on such subjects altogether. 
 The favourite occupation of active minds at the 
 present moment, and the one which answers to the 
 speculations of our forefathers on the origin of the 
 social state, is the analysis of society as it exists and 
 moves before our eyes ; but, through omitting to call 
 in the assistance of history, this analysis too often 
 degenerates into an idle exercise of curiosity, and is 
 especially apt to incapacitate the inquirer for com- 
 prehending states of society which difier considerably 
 from that to which he is accustomed. The mistake of 
 judging the men of other periods by the morality of 
 our own day has its parallel in the mistake of sup- 
 
CHAP, IX. MONTESQUIEU'S APOLOGUE. Sll 
 
 posing that every wheel and bolt in the modern social 
 machine had itsi counterpart in more rudimentary- 
 societies. Such impressions ramify very widely, and 
 masque themselves very subtly, in historical works 
 written in the modern fashion; but I find the trace 
 of their presence in the domain of jurisprudence in 
 the praise which is frequently bestowed on the little 
 apologue of Montesquieu concerning the Troglodytes, 
 inserted in the Lettres Persanes. The Troglodytes 
 were a people who systematically violated their Con- 
 tracts, and so perished utterly. If the story bears 
 the moral which its author intended, and is em- 
 ployed to expose an anti-social heresy by which this 
 century and the last have been threatened, it is most 
 unexceptionable ; but if the inference be obtained 
 from it that society could not possibly hold together 
 without attaching a sacredness to promises and agree- 
 ments which should be on something like a par with 
 the respect that is paid to them by a mature civilisa- 
 tion, it involves an error so grave as to be fatal to all 
 sound understanding of legal history. The fact is 
 that the Troglodytes have flourished and founded 
 powerful states with very small attention to the 
 obligations of Contract. .^ The point which before all 
 othefs'has to be apprehended in the constitution of ~] 
 primitive societies^is that the individual creates for 
 himself few or no rights, and few or no duties. The 
 rules which he obeys are derived first from the 
 
812 EARLY NOTIONS OF CONTRACT. chap, ix, 
 
 Btation into which he is born, and next from the im- 
 perative commands addressed to him by the chief of 
 the household of which he forms part. Such a sjst 
 tem leaves the very smallest room for Contract. V" The 
 members of the same family (for so we may "interpret 
 the evidence) are wholly incapable of contracting 
 with each other, and the family is entitled to disre- 
 gard, the engagements by which any one of its subor- 
 dinate members has attempted to bind it. Family, it 
 is true, may contract with family, chieftain with 
 chieftain, but the transaction is one of the same na- 
 ture, and encumbered by as many formalities, as the 
 alienation of property, and the disregard of one iota 
 of the performance is fatal to the obligation. The 
 positive duty resulting from one man's reliance on 
 the word of another is among the slowest conquests 
 of advancing civilisation. 
 
 N Neither Ancient Law nor any other source of evi- 
 dence discloses to us society entirely destitute of the 
 conception of Contract.\/ But the conception, when 
 it first shows itself, is obviously rudimentary. No 
 trustworthy primitive record can be read without 
 perceiving that the habit of mind which induces us 
 to make good a promise is as yet imperfectly deve- 
 loped, and that acts of flagrant perfidy are often 
 mentioned without blame and sometimes described 
 with approbation. In the Homeric literature, for in- 
 stance, the deceitful cunning of Ulysses appears as a 
 
CHAT. IX, ANCIENT CONTllACTS. 313 
 
 virtue of the same rank with the prudence of Nestor, 
 the constancy of Hector, and the gallantry of Achilles. 
 Ancient law is still more suggestive of the distance 
 which separates the crude form of Contract from its 
 maturity. \/At first, nothing is seen like the interpo- 
 sition of law to compel the performance of a promise. 
 That which the law arms with its sanctions is not a 
 promise, but a promise accompanied with a solemn 
 ceremonial. ^ Not only are the formalities of equal 
 importance with the promise itself, but they are, if 
 anything, of greater importance; for that delicate 
 analysis which mature jurisprudence applies to ^e 
 conditions of mind under which a particular verbal 
 assent is given appears, in ancient law, to be trans- 
 ferred to the words and gestures of the accompanying 
 performancer No pledge is enforced if a single form 
 be omitted or misplaced, but, on the other hand, if 
 the forms can be shown to have been accurately pro- 
 ceeded with, it is of no avail to plead that the promise 
 was made under duress or deception. The transmu- 
 tation of this ancient view into the familiar notion of 
 a Contract is plainly seen in the history of jurispru^ 
 dence. First one or two steps in the ceremonial 
 are dispensed with ; then the others are simplified 
 or permitted to be neglected on certain conditions ; 
 lastly, a few specific contracts are separated from the 
 rest and allowed to be entered into without form, the 
 selected contracts being those on which the activity 
 
314 EARLY EOMAN CONTBACTS. chap. ix. 
 
 and energy of social intercourse depend. Slowly, 
 but most distinctly, the mental engagement isolates 
 itself amid the technicalities, and gradually becomes 
 the sole ingredient on which the interest of the juris- 
 consult is concentrated. Such a mental engagement,; 
 signified through external acts,^the Romans called a 
 Pact or Convention; and when the Convention ^has 
 once been conceived as the nucleus of a Contract, it 
 soon becomes the tendency of advancing jurispru- 
 dence to break away the external shell of form and 
 ceremony .j^ Forms are ^thenceforward only retained 
 so far as they are guarantees of authenticity and 
 securities for caution and deliberation. ' The idea 
 of , a Contract is fully developed, or, to employ the 
 Roman phrase. Contracts are absorbed in Pacts. 
 
 The history of this course of change in Roman law 
 is exceedingly instructive. 4 At the earliest dawn of 
 the jurisprudence, the term in use for a Contract was ^ 
 one which is very familiar to the students of historical 
 Latinity., It was^ newum,\ and the parties to the con- 
 tract were said to be next, expressions which must 
 be carefully attended to on account of the singular 
 durableness of the metaphor on which they are 
 founded. Thje notion that persons under a contrac-. 
 tual engagement are connected together by a strorg 
 bond or chain, continued tUl the last to influence the 
 Roman jurisprudence of Contract; and flowing thence 
 it has mixed , itself with modern ideas. ^What then 
 
ltiap. IX. THE NEXUM. 315 
 
 was involved in this nexum or bondr A definition 
 which has descended to us from one of the Latin anti- 
 quarians describes nexum as omne quod geritur per ces 
 et libram, , " every transaction with the copper and 
 the balance," and these words have occasioned a good 
 deal of perplexity. The copper and the balance are 
 the well-known accompaniments of the Mancipation, 
 the ancient solemnity described in. a former chapter, 
 by which the right of ownership in the highest form 
 of Roman Property was transferred from one person 
 to another, n/ Mancipation was a conveyance, and hence 
 has arisen the difficulty, for the definition thus cited 
 appears to confound Contracts and Conveyances, 
 which in the philosophy of jurisprudence are not 
 simply kept apart, but are actually opposed to each 
 other. The jus in re, right in rem, right " availing 
 against all the world," or Proprietary Eight, is sharply 
 distinguished by the analyst of mature jurisprudence 
 from the jus ad rem, right in personam, right " avail- 
 ing against a single individual or group," or Obliga- 
 tion, v^ Now :Conveyances transfer Proprietary Rights, 
 Ccmtracts create Obligations — ^how then can the two 
 be included under the same name or same general 
 conception ? '^ This, like many similar embarrassments, 
 has been occasioned by the error of ascribing to the 
 mental condition of an unformed society a faculty 
 which pre-eminently belongs to an advanced stage of 
 intellectual development, the faculty of distinguishing 
 
31G SPECIALISING PKOUESS IX ANCIENT LAW. chap. is. 
 
 in speculation ideas which are blended in practice. 
 
 v|We have indications not to be mistaken of a state of 
 social affairs in which Conveyances and Contracts 
 were practically confoundedjv'nor did the discrepance 
 of the conceptions become perceptible till men had 
 begun to adopt a distinct practice in contracting and 
 conveying. 
 
 ' It may here be observed that we know enough of 
 ancient Roman law to give some idea of the mode of 
 transformation followed by legal conceptions and by 
 legal phraseology in the infancy of Jurisprudence. 
 The change which they undergo appears to be a 
 change from general to special; or, as we might 
 otherwise express it, the ancient conceptions and the 
 ancient terms are subjected to a process of gradual 
 specialisation. J An ancient legal conception corre- 
 sponds not to one but to several modem conceptions. 
 An ancient technical expression serves to indicate 
 a variety of things which in modern law have 
 separate names allotted to them. If, however, we 
 take up the history of Jurisprudence at the next 
 stage, we find that the subordinate conceptions have 
 gradually disengaged themselves, and that the old 
 general names are giving way to special appellations. 
 The old general conception is not obliterated, but it 
 has ceased to cover more than one or a few of 
 the notions which it first included. So too the old 
 teclinical name remains, but it discharges only one of 
 
CHAP. IX. SPECIALISING PEOCEPS IX ANCIENT LAW. 817 
 
 the functions which it once perfonned. We may 
 exemplify this phenomenon in various ways. Patri- 
 archal Power of aU sorts appears, for instance, to 
 have been once conceived as identical in character, 
 and it was doubtless distinguished by one name. The 
 Power exercised by the ancestor was the same 
 whether it was exercised over the family or the ma- 
 terial property — over flocks, herds, slaves, children, 
 or wife. We cannot be absolutely certain of its old 
 Roman name, but there is very strong reason for 
 believing, from the number of expressions indicating 
 shades of the notion of power into which the word 
 manus enters, that the ancient general term was 
 manus. But, when Roman law has advanced a 
 little, both the name and the idea have become spe- 
 cialised. Power is discriminated, both in word and 
 in conception, according to the object over which it 
 is exerted. Exercised over material commodities or 
 slaves, it has become dominium — over children, it is 
 Potestas — over free persons whose services have 
 been made away to another by their own ancestor, it 
 is mandpium — over a wife, it is still manus. The 
 old word, it will be perceived, has not altogether 
 fallen into desuetude, but is confined to one very 
 special exercise of the authority it had formerly 
 denoted. This example will enable us to compre- 
 hend the nature of the historical alliance between 
 Contracts and Conveyances, /rhere seems to have 
 
318 THE NEXUM. chap, a 
 
 been one solemn ceremonial at first for all solemn 
 transactions, and its name at Rome appears to have 
 been nexum. Precisely the same forms which were 
 in use when a conveyance of property was effected 
 seem to have been employed in the making of a con- 
 tract. l/]But we have not very far to move onwards 
 before we come to a period at which the notion of a 
 Contract has disengaged itself from the notion- of a 
 Conveyance. A double change has thus taken place. 
 The transaction " with the copper and the balance," 
 when intended to have for its office the transfer of 
 property, is known by the new and special name of 
 Mancipation. The ancient Nexum stUl designates 
 the same ceremony, but only when it is employed for 
 the special purpose of solemnising a contract. 
 
 When two or three legal conceptions are spoken of 
 as anciently blended in one, it is not intended to 
 imply that some one of the included notions may 
 not be older than the others, or, when those others 
 have been formed, may not greatly predominate 
 over and take precedence of them. The reason why 
 one legal conception continues so long to cover 
 "seVerai conceptions, and one technical phrase to de 
 instead of several, is doubtless that practical changes 
 are accomplished in the law of primitive societies 
 long before men see occasion to notice or name them. 
 Though I have said that Patriarchal Power was not 
 at first distinguished according to the objects over 
 
CHAP. ES. CHANGES IN THE NEXUM, 310 
 
 which it was exercised, I feel sure that Power over 
 Children was the root of the old conception of Power ; 
 and I cannot doubt that the earliest use of the 
 Nexum, and the one primarily regarded by those who 
 resorted to it, was to give proper solemnity to the 
 alienation of property. It is likely that a very slight 
 perversion of the Nexum from its original functions 
 first gave rise to its employment in Contracts, and 
 that the very slightness of the chtoge long prevented 
 its being appreciated or noticed. The old name re- 
 mained because men had not become conscious that 
 they wanted a new one ; the old notion' clung to the 
 mind because nobody had seen reason to be at' the 
 pains of examining it. We have had the process 
 clearly exemplified in the history of Testaments. A 
 Will was at first a simple conveyance of Property. It 
 was only the enormous practical difiference that gra- 
 dually showed itself between this particular convey- 
 ance and all others which caused it to be regarded 
 separately, and even as it was, centuries elapsed 
 before the ameliorators of law cleared away the use- 
 less encumbrance of the nominal mancipation, and 
 consented to care for nothing in the Will but the 
 expressed intentions of the Testator. It/ is Unfortu- 
 nate that we cannot track the early history of Con- 
 tracts with the same absolute confidence as the early 
 history of WiUs, but we are not quite without 
 hints that contracts first showed themselves through 
 
Sa) CHANGES !>■ THE NEXUM. chap. n. 
 
 the nexum being put to a new use and after- 
 wards obtained recognition as distinct transactions 
 through the important practical consequences of 
 the experiment. There is some, but not very violent, 
 conjecture in the following delineation of the process. 
 Let us conceive a sale for ready money as the 
 normal type of the Nexum. The seller brought the 
 property of which he intended to dispose — a slave, 
 for example — the purchaser attended with the rough 
 ingots of copper which served for money — and an in- 
 dispensable assistant, the libripens, presented himself 
 with a pair of scales. The slave with certain fixed 
 formahties was handed over to the vendee — ^the 
 copper was weighed by the libripens and passed to 
 the vendor. So long as the business lasted it was a 
 nexum, and the parties were nexi ; but the moment 
 it was completed, the nexum ended, and the vendor 
 and purchaser ceased to bear the name derived from 
 their momentary relation. But now, let us move a 
 step onward in commercial history. Suppose the 
 slave transferred, but the money not paid. In thai 
 case, the nexum is finished, so far as the seller is 
 concerned, and when he has once handed over his 
 property, he is no longer nexus ; but, in regard to the 
 purchaser, the nexum continues. ■ The transaction, as 
 to his part of it, is' -Incomplete, and he Is still consi- 
 dered to be nexus.j It follows, therefore, that the 
 same term described the conveyance by which the 
 
CHAP. a. CONVEYANCES AND CONTEACTS. S21 
 
 right of property was transmitted, and the personal 
 obligation of the debtor for the unpaid purchase- 
 money .i/' We may stLU go forward, and picture to 
 ourselves a proceeding wholly formal, in which nothing 
 is handed over and nothing paid ; we are brought at 
 once to a transaction indicative of much higher com- 
 mercial activity, an executo7'y Contract of Sale. 
 
 If it be true that, both in the popular and in the 
 professional view, a Contract was long regarded as an 
 incomplete Conveyance, the truth has importance for 
 many reasons. The speculations of the last century 
 concerning mankind in a state of nature, are not un- 
 fairly summed up in the doctrine that " in the primi- 
 tive society property was nothing, and obligation 
 everything;" and it will now be seen that, if the pro- 
 position were reversed, it would be nearer the reality. 
 On the other hand, considered historically, the 
 primitive association of Conveyances and Contracts 
 explains something which often strikes the scholar 
 aud jurist as singularly enigmatical, I mean the 
 extraordinary and uniform severity of very ancient 
 systems of law to debtors, and the extravagant powers 
 which they lodge with creditors. When once we un- 
 derstand that the nexum was artificially prolonged to 
 give time to the debtor, we can better comprehend 
 his position in the eye of the public and of the law. 
 His indebtedness was doubtless regarded as an ano- 
 maly, and suspense of payment in general as an artifice 
 
 y 
 
322 CONVEYANCES AND CONTRACIS. chap. n. 
 
 and a distortion of strict rule. The person wlio had 
 duly consummated his part in the transaction must, 
 on the contrary, have stood in peculiar favour; and 
 nothing would seem more natural than to arm him 
 with stringent facilities for enforcing the completion 
 of a proceeding which, 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 constant became the 
 association between this word and • the notion of a 
 Contract, that a special term, Mancipium or Manci- 
 patio, had to be used for the purpose of designating 
 the true nexum or transaction in which the property 
 was really transferred. nI Contracts are therefore now 
 severed from Conveyances, and the first stage in their 
 history is accomphshed, but still they are far enough 
 from that epoch of their development when the pro- 
 mise of the contractor has a higher sacredness than 
 the formalities with which it is coupled. In attempt- 
 ing to indicate the character of the changes passed 
 through in this interval, it is necessary to trespass 
 a little on a subject which lies properly beyond the 
 range of these pages, the analysis of ''Agreement 
 effected by the Eoman jurisconsults.^ Of this ana- 
 lysis, the most beautiful monument of their sagacity, 
 I need not say more than that it is^based on the 
 theoretical separation of the Obligation fi-om the 
 
caiAP. IX. ROMAlii ANALYSIS OF AGREEMENT. 823 
 
 Convention or Pact/ Bentham and Mr. Austin have 
 laid down that the " two main essentials of a contract 
 are these : first, a signification by the promising 
 party of his intention to do the acts or to observe the 
 forbearances which he promises to do or to observe. 
 Secondly, a signification by the promisee that he 
 expects the promising party will fulfil the proffered 
 promise." This is virtually identical with the doctrine' 
 of the Roman lawyers, but then, in their view, the 
 result of these " significations " was not a Contract, 
 but a Convention or Pact. v-A Pact was the utmost 
 product of the engagements of individuals agreeing 
 among themselves, and it distinctly fell short of a 
 Contract. Whether it ultimately became a Contract 
 depended on the question whether the law annexed 
 an Obligation to it. v A Contract was a Pact (or Con- 
 vention) plus an Obligationy^ So long as the Pact 
 remained unclothed with the Obligation, it was called 
 nude or naked. 
 
 What was an Obligation? It is defined by the 
 Roman lawyers as " Juris vinculum, quo necessitate 
 adstringimur alicujus solvendse rei." This definition 
 connects the Obligation with the Nexum through the 
 common metaphor on which they are founded, and 
 shows us with much clearness the pedigree of a pecu- 
 liar conception. yThe Obligation is the " bond " or 
 "chain," with which the law joins together per- 
 sons or groups of persons, in consequence of certain 
 
 y2 
 
824 OBLIGATIOX. cdaj?. ix- 
 
 voluntary acts/ The acts wHch have the eflFect of 
 attracting an Obligation are chiefly those classed under 
 the heads of Contract and Delict, of Agreement and 
 Wrong; but a variety of other acts have a similar 
 consequence which are not capable of being comprised 
 in an exact classification. It is to be remarked, 
 however, that the Pact does not draw to itself the 
 Obligation in consequence of any moral necessity ; it 
 is the law which annexes it in the plenitude of its 
 power, a point the more necessary to be noted, because 
 a different doctrine has sometimes been propounded 
 by modern interpreters of the Civil Law who had 
 moral or metaphysical theories of their own to sup- 
 port. vThe image of a vinculum juris colours and 
 pervades every part of the Roman law of Contract 
 and Delict. -J The- law bound the parties together, and 
 the chain could only be undone by the process caUed 
 solutio, an expression still figurative, to which our 
 word " payment " is only occasionally and incidentally 
 equivalent. The consistency with which the figura- 
 tive image was allowed to present itself, explains an 
 otherwise puzzling peculiarity of Roman legal phra- 
 seology, the fact that"*^' Obligation " signifies rights as 
 well as duties, the right, for example, to have a debt 
 paid as weU as the duty of paying itv The Romans 
 kept, in fact, the entire picture of the " legal chain " 
 before their eyes, and regarded one end of it no more 
 and no less than the other. 
 
CHAP. IX. CONTENTION AND CONTEACT. 325 
 
 In the developed Roman law, the Convention, as 
 soon as it -was completed, was, in almost all cases, 
 at once crowned with the Obligation, and so became 
 a Contract ; and this was the result to which contract- 
 law was surely tending. But for the purpose of this 
 inquiry, we must attend particularly to the interme- 
 diate stage — ^that in which something more than a 
 perfect agreement was required to attract the obliga- 
 tion. This epoch is synchronous with the period at 
 which the famous Roman classification of Contracts 
 into four sorts — the Verbal, the Literal, the Real, 
 and the Consensual — had come into use, and during 
 which these four orders of contract constituted the 
 only descriptions of engagement which the law would 
 enforce. The meanmg of the fourfold distribution 
 is readily understood as soon as we apprehend the 
 theory which severed the Obligation from the Con- 
 vention. Each class of contracts was in fact named 
 from certain formalities which were required over and 
 above the mere agreement of the contracting parties. 
 In the Verbal Contract, as soon as the Convention 
 was effected, a form of words had to be gone through 
 before the " vinculum juris " was attached to it. In the 
 Literal Cont^-act, an entry in a ledger or table-book 
 had the effect of clothing the Convention with the 
 Obligation, and the same result followed, in the case 
 of the Real Contract, from the delivery of the Res 
 or Thing which was the subject of the preliminary 
 
sue ROMAN CONTRACTS. ohap. ix. 
 
 engagement. The contracting parties came, in short, 
 to an understanding in each case ; but, if they went 
 no further, they -were not obliged to one another, and 
 could not compel performance or ask redress for a 
 breach of faith. But let them comply with certain 
 prescribed formalities, and the Contract was imme- 
 diately complete, taking its name from the particular 
 form which it had suited them to adopt. The excep- 
 tions to this practice will be noticed presently. 
 
 I have enumerated the four Contracts in their 
 historical order, which order, however, the Roman 
 Institutional writers did not invariably follow. There 
 can be no doubt that T;he Verbal Contract was the 
 most ancient of the four, and that it is the eldest 
 known descendant of the primitive Nexum. / Several 
 species of Verbal Contract were anciently in use, but 
 the most important of all, and the only one treated of 
 by our authorities, was effected by means of a stipula- 
 tion, that is, a Question and Answer; a question 
 addressed by the person who exacted the promise, and 
 an answer given by the person who made it. This 
 question and answer constituted the additional ingre- 
 dient which, as I have just explained, was demanded 
 by the primitive notion over and above the mere 
 agreement of the persons interested. They formed 
 the agency by which the Obligation was annexed. 
 The old Nexum has now bequeathed to maturer juris- 
 prudence first of all the conception of a chain uniting 
 
CHAP. IX, THE VERB At CONTBACT. 327 
 
 the contracting parties, and this has become the 
 Obligation. It has further transmitted the notion 
 of a ceremonial accompanying and consecrating the 
 engagement, and this ceremonial has been transmuted 
 into the Stipulation. The conversion of the solemn 
 conveyance, which was the prominent feature of the 
 original Nexum, into a mere question and answer, 
 would be more of a mystery than it is if we had 
 not the analogous history of Roman Testaments to 
 enlighten us. Looking at that history, we can under- 
 stand how the formal conveyance was first separated 
 from the part of the proceeding which had immediate 
 reference to the business in hand, and how afterwards 
 it was omitted altogether. As then the question and 
 answer of the Stipulation were unquestionably the 
 Nexum in a simplified shape, we are prepared to find 
 that they long partook of the nature of a technical 
 form. It would be a mistake to consider them as 
 exclusively recommending themselves to the older 
 Eoman lawyers xhrough their usefulness in furnishing 
 persons meditating an agreement with an opportunity 
 for consideration and reflection. It is not to be dis- 
 puted that they had a value of this kind, which was 
 gradually recognised; but there is proof that their 
 function in respect to Contracts was at first formal 
 and ceremonial in the statement of our authorities, 
 that not every question and answer was of old suffi- 
 cient to constitute a Stipulation, but only a question 
 
323 CONVENIENCE OF VERBAL CONTKACT. chap. ix. 
 
 and answer couched in technical phraseology specially 
 appropriated to the particular occasion. 
 
 But although it is essential for the proper apprecia- 
 tion of the history of contract-law that the Stipulation 
 should be understood to have been looked upon as a 
 solemn form before it was recognised as a useful 
 security, it would be wrong on the other hand to 
 shut our eyes to its real usefulness. The Verbal 
 Contract, though it had lost much of its ancient im- 
 portance, survived to the latest period of Roman 
 jurisprudence; and we may take it for granted that 
 no institution of Roman law had so extended a 
 longevity unless it served some practical advantage. 
 I observe in an English writer some expressions of sur- 
 prise that the Romans even of the earliest times were 
 content with so meagre a protection against haste and 
 irreflection. But on examining the Stipulation closely, 
 and remembering that we have to do with a state 
 of society in which written evidence was not easily 
 procurable, I think we must admit that this Question 
 and Answer, had it been expressly devised to answer 
 the purpose which it served, would have been justly 
 designated a highly ingenious expedient. It was the 
 •promisee who, in the character of stipulator, put aU 
 the terms of the contract into the form of a question, 
 and the answer was given by the promisor. " Do you 
 promise that you will deliver me such and such a 
 slave, at such and such a place, on such and such a 
 
OHAP, IX. CONVENIENCE OF VERBAL CONTRACT. SIV 
 
 day?" "I do promise." No-w, if we reflect for a 
 moment, we shall see that this obligation to put the 
 promise interrogatively inverts the natural position 
 of the parties, and, by effectually breaking the tenor 
 of the conversation, prevents the attention from 
 gliding over a dangerous pledge. With us, a verbal 
 promise is, generally speaking, to be gathered exclu- 
 sively from the words of the promisor. In old Roman 
 law, another step was absolutely required; it was 
 necessary for the promisee, after the agreement had 
 been made, to sum up all its terms in a solemn inter- 
 rogation; and it was of this interrogation, of course, 
 and of the assent to it, that proof had to be given at 
 the trial — not of the promise, which was not in itself 
 binding. How great a difl\;rence this seemingly in- 
 significant peculiarity may make in the phraseology 
 of contract-law is speedily realised by the beginner in 
 Roman jurisprudence, one of whose first stumbling- 
 blocks is almost universally created by it. When we 
 in Enghsh have occasion, in mentioning a contract, 
 to connect it for convenience' sake with one of the 
 parties, — ^for example, if we wished to speak generally 
 of a contractor, — it is always the promisor at whom 
 our words are pointing. But the general language of 
 Roman law takes a different turn ; it a.lways regards 
 the contract, if we may so speak, from the point of 
 view of the promisee; in speaking of a party to a 
 contract, it is always the Stipulator, the person who, 
 
S80 THE LITERAL COJfTEACT. chap. is. 
 
 asks the question, who is primarily alluded to. But 
 the serviceableness of the stipulation is most vividly 
 illustrated by referring to the actual examples in the 
 pages of the Latin comic dramatists. If the entire 
 scenes are read down in which these passages occur 
 (ex. gra. Plautus, Psmdolus, Act I. sc. 1 ; Act IV. 
 sc. 6; Trinummus, Act Y. sc. 2), it will be perceived 
 how effectually the attention of the person meditating 
 the promise must have been arrested by the question, 
 and how ample was the opportunity for withdrawal 
 from an improvident undertaking. 
 J In the Literal or Written Contract, the formal act 
 by which an Obligation was superinduced on the Con- 
 vention, was an entry of the sum due, where it could 
 be specifically ascertained, on the debit side of a 
 ledger."^ The explanation of this contract turns on a 
 point of Koman domestic manners, the systematic 
 character and exceeding regularity of book-keeping 
 in ancient times. There are several minor difficulties 
 of old Eoman law, as, for example, the nature of the 
 Slave's Peculium, which are only cleared up when we 
 recollect that a Roman household consisted of a num- 
 ber of persons strictly accountable to its head, and 
 that every single item of domestic receipt and expen- 
 diture, after being entered in waste books, was trans- 
 ferred at stated periods to a general household ledger. 
 There are some obscurities, however, in the descrip- 
 tions we have received of the Literal Contract, the 
 
CHAP. IX. THE EEAL CONTEACT, 331 
 
 fact being that the habit of keeping books ceased 
 to be universal in later times, and the expression 
 " Literal Contract " came to signify a form of engage- 
 ment entirely different from that originally under- 
 stood. We are not, therefore, in a position to say, 
 with respect to the primitive Literal Contract, whether 
 the obligation was created by a simple entry on the 
 part of the creditor, or whether the consent of the 
 debtor or a correspondent entry in his own books was 
 necessary to give it legal effect. The essential point 
 is however established, that, in the case of this 
 Contract, all formalities were dispensed with on a 
 condition being complied with. This is another step 
 downwards in the history of contract-law. 
 
 The Contract which stands next in historical suc- 
 cession, n;he Eeal Contract, shows a great advance in 
 ethical conceptions. ^ Whenever any agreement had 
 for its object the delivery of a specific thing — and this 
 is the case with the large majority of simple engage- 
 ments — the Obligation was drawn down as soon as 
 the delivery had actually taken place. Such a result 
 must have involved a serious innovation on the oldest 
 ideas of Contract; for doubtless, in the primitive times, 
 when a contracting party had neglected to clothe his 
 agreement m a stipulation, nothing done in pursuance 
 of the agreement would be recognised by the law. 
 A person who had paid over money on loan would 
 be unable to sue for its repayment unless he had 
 
332 THE CONSENSUAL CONTKACTS. chat. ix. 
 
 formallj' stipulated for it. ButJ in the Real Con- 
 tract, performance on one side is allowed to impose 
 a legal duty on the other — evidently on ethical 
 grounds. For the first time then moral considera- 
 tions appear as an ingredient in Contract-la-w, and 
 the Real Contract diiFers from its two predecessors in 
 being founded on these, rather than on respect for 
 technical forms or on deference to Roman domestic 
 habits. 
 
 "We now reach the fourth class, or ''^Consensual 
 Contracts, the most interesting and important of all. 
 Four specified Contracts were distinguished by this 
 name: Mandatum, i.e. Commission or Agency; So- 
 cietas or Partnership; Emtio Yenditio or Sale; and 
 Locatio Conductio or Letting and Hiring. A few 
 pages back, after stating that a Contract consisted of a 
 Pact or Convention to which an Obligation had been 
 superadded, I spoke of certain acts or formalities by 
 which the law permitted the Obligation to be attracted 
 to the Pact. I used this language on account of the 
 advantage of a general expression, but it is not 
 strictly correct unless it be understood to include the 
 negative as well as the positive. For, in truth, the 
 peculiarity of these Consensual Contracts is that no 
 formalities are required xo create them out of the 
 Pact. Much that is indefensible, and much more that 
 is obscure, has been written about the Consensual 
 Contracts, and it has even been asserted that in them 
 
CHAP. n. THE CONSENSUAL CONTRACTS. 833 
 
 the consent of the Parties is more emphatically given 
 than in any other species of agreement. But this 
 term Consensual merely indicates that the Obligation 
 is here annexed at once to the Consensus. The Con;;^ 
 sensus, or mutual assent of the parties, is the final and 
 crowning ingredient in the Convention, and it is the 
 special characteristic of agreements falling under one 
 of the four heads of Sale, Partnership, Agency, and 
 Hu'ing, that, as soon as the assent of the parties has 
 supplied this ingredient, there is at once a Contract. 
 The Consensus draws with it the Obligation, per- 
 forming, in transactions of the sort specified, the 
 exact functions which are discharged, in the other 
 contracts, by the Bes or Thing, by the Verba stipula- 
 tionis, and by the Literce or written entry in a ledger. 
 Consensual is therefore a term which does not involve 
 the slightest anomaly, but is exactly analogous to 
 Heal, Verbal, and Literal. 
 
 In the intercourse of life the commonest and most 
 important of all the contracts are unquestionably the 
 four styled Consensual. The larger part of the col- 
 lective existence of every community is consumed in 
 transactions of buying and selling, of letting and 
 hiring, of alliances between men for purposes of 
 business, of delegation of business from one man to 
 another ; and this is no doubt the consideration which 
 led the Romans, as it has led most societies, to reheve 
 these transactions from technical incumbrance, to 
 
384 THE CONSENSUAL CONTEACTS. chap, rx, 
 
 abstain as mucli as possible from clogging the most 
 efficient springs of social movement. Such motives 
 were not of course confined to Rome, and ^e com- 
 merce of the Eomans with their neighbours must 
 have given them abundant opportunities for observing 
 that'*1;he' contracts) before us (tefi^ded everywhere to 
 become Consensual) ohlig&tory on the mere significa- 
 tion of mutual assent.v^ Hence, following their usual 
 practice, they distinguished these contracts as con- 
 tracts Juris Gentium. Yet I do not think that they 
 were so named at a very early period. The first 
 notions of a Jus Gentium may have been deposited 
 in the minds of the Roman lawyers long before the 
 appointment of a Praetor Peregrinus, but it would 
 only be through extensive and regular trade that they 
 would be familiarised with the contractual system of 
 other Italian communities, and such a trade would 
 scarcely attain considerable proportions before Italy 
 had been thoroughly pacified, and the supremacy of 
 Rome conclusively assured, v^^though, however, 
 there is strong probability that the Consensual Con- 
 tracts were the latest born into the Roman system, 
 and though it is likely that the qualification, Juris 4- 
 Gentium, stamps the recency of their origin, yet this 
 very expression, which attributes them to the " Law 
 of Nations," has in modern times produced the notion 
 of their extreme antiquity^ For, when the " Law of 
 Nations " had been converted into the " Law of 
 
OITAP. IX. THE CONSENSUAL CONTRACTS. 336 
 
 Nature,'' it seemed to be implied that the Consensual 
 Contracts were the type of the agreements most 
 congenial to the natural state ; and hence arose the 
 singular belief that the younger the civilisation, the 
 simpler must be its forms of contract, i — 
 
 The Consensual Contracts, it will be observed, 
 were extremely limited in number. But it cannot be 
 doubted that they constituted the stage in the history 
 of Contract-law from which all modern conceptions of 
 contract took their start. The motion of the wUl 
 which constitutes agreement was now completely 
 insulated, and became the subject of separate con- 
 templation; forms were entirely eliminated from the 
 notion of contract, and external acts were only 
 regarded as symbols of the internal act of volition. 
 The Consensual Contracts had, moreover, been classed 
 in the Jus Gentium, and it was not long before this 
 classification drew with it the inference that they 
 were the species of agreement which represented the 
 engagements approved of by Nature and included in 
 her code. This point once reached, we are prepared 
 for several celebrated doctrines and distinctions of the 
 Roman lawyers. One of them is the distinction 
 between Natural and Civil Obligations. When a 
 person of fuU intellectual maturity had deliberately 
 bound himself by an engagement, he was said to 
 be under a natural obligation, even though he had 
 omitted some necessary formality, and even though 
 
336 NATDKAL AJSTD CIVIL OBLIGATIONS, chap, is 
 
 through some technical impediment he was devoid 
 of the formal capacity for making a valid contract. 
 The law (and this is what the distinction implies) 
 would not enforce the obligation, but it did not 
 absolutely refuse to recognise it ; and natural obli- 
 gations differed in many respects from obligations 
 which were merely null and void, more particularly 
 in the circumstance that they could be civiUy con- 
 firmed, if the capacity for contract were subsequently 
 acquired. Another very peculiar doctrine of the 
 jurisconsults could not have had its origin earlier than 
 the period at which the Convention was severed from 
 the technical ingredients of Contract. They taught 
 that though nothing but a Contract could be the 
 foundation of an action, a mere Pact or Convention 
 could be the basis of a plea. It followed from this, 
 that though nobody could sue upon an agreement 
 which he had not taken the precaution to mature into 
 a Contract by complying with the proper forms, never- 
 theless a claim arising out of a valid contract could 
 be rebutted by proving a counter-agreement which 
 had never got beyond the state of a simple conven- 
 tion. An action for the recovery of a debt could be 
 met by showing a mere informal agreement to waive 
 or postpone the payment. 
 
 The doctrine just stated indicates the hesitation of 
 the Prsetors in making their advances towards the 
 greatest of their iimovations. Their theory of Natural 
 
CHAP. IX. CHANGES m CONTRACT-LAW. 337 
 
 law must have led them to look with especial favour on 
 the Consensual Contracts and on those Pacts or Con- 
 ventions of which the Consensual Contracts were only- 
 particular instances; but they did not at once venture 
 on extending to all Conventions the liberty of the 
 Consensual Contracts. They took advantage of that 
 special superintendence over procedure which had 
 oeen confided to them since the first beginnings of 
 Eoman law, and, while they still declined to permit a 
 suit to be launched which was not based on a formal 
 contract, they gave fuU play to their new theory of 
 agreement in directing the ulterior stages of the pro- 
 ceeding. But, when they had proceeded thus far, it 
 was inevitable that they should proceed farther. 
 The revolution of the ancient law of Contract was 
 consummated when the Praetor of some one year an- 
 nounced in his Edict that he would grant equitable 
 actions upon Pacts which had never been matured at 
 all into Contracts, provided only that the Pacts in 
 question had been founded on a consideration (causa). 
 Pacts of this sort are always enforced under the 
 advanced Roman jurisprudence. The principle is 
 merely the principle of the Consensual Contract car- 
 ried to its proper consequence; and, in fact, if the 
 technical language of the Romans had been as plastic 
 as their legal theories, these Pacts enforced by the 
 Praetor would have been styled new Contracts, new 
 Consensual Contracts. Legal phraseology is, how- 
 
338 PEOGRESS OP CONTEACT-LAW. chap. ix. 
 
 ever, the part of the law which is the last to alter, 
 and the Pacts equitably enforced continued to be 
 designated simply Praetorian Pacts. It wiU be re- 
 marked that unless there were consideration for the 
 Pact, it would continue nude so far as the new juris- 
 prudence was concerned; in order to give it effect, 
 it would be necessary to convert it by a stipulation 
 into a Verbal Contract. 
 
 The extreme importance of this history of Con- 
 tract, as a safeguard against almost innumerable 
 delusions, must be my justification for discussing it 
 at so considerable a length. It gives a complete 
 account of the march of ideas from one great land- 
 mark of jurisprudence to another. ^We begin with 
 the Nexum, in which a Contract and a Conveyance^ 
 are blended, and in which the formalities which ac- I 
 company the agreement are even more important 
 than the agreement itself. From the Nexum we pass | 
 to the Stipulation, which is a simplified form of the 
 older ceremonial. The Literal Contract comes next, 
 and here all formalities are waived, if proof of the 
 agreement can be supplied from the rigid observances 
 of a Roman household. In the Real Contract a 
 moral duty is for the first time recognised, and 
 persons who have joined or acquiesced in the partial i 
 performance of an engagement are forbidden to 1 
 repudiate it on account of defects in form. Lastly, 
 the Consensual Contracts emerge, in which the 
 
EUAP, IX. PEOGEESS OP CONTEACT-LAW. 339 
 
 mental attitude of the contractors is solely regarded^ 
 and external circumstances have no title to notice 
 except as evidence of the inward undertaking, v/ It is 
 of. course uncertain how far this progress of Roman 
 ideas from a gross to a refined conception exemplifies 
 the necessary progress of human thought on the 
 subject of Contract. The Contract-law of all other 
 ancient societies but the Roman is either too scanty 
 to furnish information, or else is entirely lost ; and 
 modern jurisprudence is so thoroughly leavened with 
 the Roman notions that it furnishes us mth no con- 
 trasts or parallels from which instruction can be 
 gleaned. From the absence, however, of everything 
 violent, marvellous, or unintelligible in the changes I 
 have described, it may be reasonably believed that 
 the history of Ancient Roman Contracts is, up to a 
 certain point, typical of the history of this class of 
 legal conceptions in other ancient societies. But it 
 is only up to a certain point that the progress of 
 Roman law can be taken to represent the progress of 
 other systems of jurisprudence. The theory of Na- 
 tural law is exclusively Roman. The notion of the 
 vinculum juris, so far as my knowledge extends, is 
 exclusively Roman. The many peculiarities of the 
 mature Roman law of Contract and Delict which 
 are traceable to these two ideas, whether singly or in 
 combination, are therefore among the exclusive pro- 
 ducts of one particular society. These later legal 
 
 xS 
 
840 INFLUENCE OF ROMAN CONTKACT-LAW chap. is. 
 
 conceptions are important, not because they typify 
 the necessary results of advancing thought under all 
 conditions, but because they have exercised perfectly 
 enormous influence on the intellectual diathesis of the 
 modern world. 
 
 I know nothing more wonderful than the variety 
 of sciences to which Roman law, Eoman Contract- 
 law more particularly, has contributed modes of 
 thought, courses of reasoning, and a technical lan- 
 guage. Of the subjects which have whetted the 
 intellectual appetite of the moderns, there is scarcely 
 one, except Physics, which has not been filtered 
 through Roman jurisprudence. The science of pure 
 Metaphysics had, indeed, rather a Greek than a Roman 
 parentage, but Politics, Moral Philosophy, and even 
 Theology, found in Roman law not only a vehicle of 
 expression, but a nidus in which some of their pro- 
 foundest iaquiries were nourished into maturity. For 
 the purpose of accounting for this phenomenon, it is 
 not absolutely necessary to discuss the mysterious 
 relation between words and ideas, or to explain how 
 it is that the human mind has never grappled with 
 any subject of thought, unless it has been provided 
 beforehand with a proper store of language and with 
 an apparatus of appropriate logical methods. It is 
 enough to remark, that, when the philosophical inte- 
 rests of the Eastern and Western worlds were sepa- 
 rated, the. founders of Western thought belonged to 
 
CHAP. II. STATE OF THOUGHT IS THE EMPIRE. Sdl 
 
 a society -wliicli spoke Latin and reflected, in Latin. 
 But in the Western provinces the only language whicfi 
 retained sufficient precision for philosophical purposes 
 was the language of Koman law, which by a singular 
 fortune had preserved nearly all the purity of the 
 Augustan age, while vernacular Latin was degene- 
 rating into a dialect of portentous barbarism. And 
 if Eoman jurisprudence supplied the only means of 
 exactness in speech, stiU more emphatically did it 
 furnish the only means of exactness, subtlety, or 
 depth in thought. For at least three centuries 
 philosophy and science were without a home in the 
 West ; and though metaphysics and metaphysical 
 theology were engrossing the mental energies of 
 multitudes of Eoman subjects, the phraseology em- 
 ployed in these ardent inquiries was exclusively Greek, 
 and their theatre was the Eastern half of the Empire. 
 Sometimes, indeed, the conclusions of the Eastern 
 disputants became so important that every man's 
 assent to them, or dissent from them, had to be re- 
 corded, and then the West was introduced to the 
 results of Eastern controversy, which it generally 
 acquiesced in without interest and without resistance. 
 Meanwhile, one department of inquiry, difficult 
 enough for the most laborious, deep enough for the 
 most subtile, delicate enough for the most refined, 
 had never lost its attractions for the educated classes 
 of the Western provinces. To the cultivated citizen 
 
342 EASTEEN AND WESTERN IDEAS. chap. XS. 
 
 of Africa, of Spain, of Gaul, and of Northern Italy, 
 it was jurisprudence, and jurisprudence only, which 
 stood in the place of poetry and history, of philosophy 
 and science. So far then from there being anything 
 mysterious in the palpably legal complexion of the 
 earliest efforts of Western thought, it would rather be 
 astonishing if it had assumed any other hue. I can 
 only express my surprise at the scantiness of the at- 
 tention which has been given to the difference between 
 Westei-n ideas and Eastern, between Western theology 
 and Eastern, caused by the presence of a new ingre- 
 dient. It is precisely because the influence of juris- 
 prudence begins to be powerful that the foundation 
 of Constantinople and the subsequent separation of 
 the Western empire from the Eastern are epochs in 
 philosophical history. But Continental thinkers are 
 doubtless less capable of appreciating the importance 
 of this crisis by the very intimacy with which notions 
 derived from Roman law are mingled up with their 
 everyday ideas. Englishmen, on the other hand, are 
 blind to it through the monstrous ignorance to which 
 they condemn themselves of the most plentiful source 
 of the stream of modern knowledge, of the one intel- 
 lectual result of the Roman civiUsation. At the same 
 time, an Englishman who will be at the pains to 
 familiarise himself with the classical Roman law, is 
 perhaps, from the very slightness of the interest 
 which his countrymen have hitherto taken in the 
 
CHAP. n. QUASI-CONTRACT. 843 
 
 subject, a better judge than a Frencliman or a Ger- 
 man of the value of the assertions I have ventured tb 
 make. Anybody who knows what Roman jurispru- 
 dence is, as actually practised by the Romans, and 
 who will observe in what characteristics the earliest 
 Western theology and philosophy differ from the 
 phases of thought which preceded them, may be 
 safely left to pronounce what was the new element 
 which had begun to pervade and govern speculation. 
 The part of Roman law which has had most exten- 
 sive influence on foreign subjects of inquiry has been 
 the law of Obligation, or, what comes nearly to the 
 same thing, of Contract and Delict. The Romans 
 themselves were not unaware of the offices which the 
 copious and malleable terminology belonging to this 
 part of their system might be made to discharge, and 
 this is proved by their employment of the peculiar 
 adjunct quasi in such expressions as Quasi-ContraCt 
 and Quasi-Delict. " Quasi," so used, is exclusively 
 a terra of classification. It has been usual with 
 English critics to identify the Quasi-contracts with 
 implied contracts, but this is an error, for implied 
 contracts are true contracts, which quasi-contracts 
 are not. In implied contracts, acts and circum- 
 stances are the symbols of the same ingredients 
 which are symbolised, in express contracts, by 
 words ; and whether a man employs one set of sym- 
 bols or the other must be a matter of indifference 
 
844 QUASI-CONTRACT. chap. li, 
 
 SO far as concerns the theory of agreement. But 
 a Quasi-Contract is not a contract at all. The 
 commonest sample of the class is the relation sub- 
 sisting between two persons, one of whom has paid 
 money to the other through mistake. The law, 
 consulting the interests of morality, imposes an obli- 
 gation on the receiver to refund, but the very nature 
 of the transaction indicates that it is not a contract, 
 inasmuch as the Convention, the most essential ingre- 
 dient of Contract, is wanting. This word " quasi," 
 prefixed to a term of Roman law, implies that the 
 conception to which it serves as an index is con- 
 nected with the conception with which the com- 
 parison is instituted by a strong superficial analogy 
 or resemblance. It does not denote that the two 
 conceptions are the same, or that they belong to the 
 same genus. On the contrary, it negatives the 
 notion of an identity between them; but it points 
 out that they are sufficiently similar for one to be 
 classed as the sequel to the other, and that the 
 phraseology taken fi:om one department of law may 
 be transferred to the other, and employed without 
 violent straining in the statement of rules which 
 would otherwise be imperfectly expressed. 
 V It has been shrewdly remarked, that the con- 
 fusion between Implied Contracts, which are true 
 contracts, and Quasi-Contracts, which are not con- 
 tracts at all has much in common with the famous 
 
OHAP. IX, THE SOCIAL COMPACT. 345 
 
 error whicli attributed political rights and duties to 
 an Original Compact between the governed and the 
 governor. J Long before this theory had clothed 
 itself in definite shape, the phraseology of Roman 
 contract-law had been largely drawn upon to de- 
 scribe that reciprocity of rights and duties which 
 men had always conceived as existing between 
 sovereigns and subjects. ^While the world was full 
 of maxims setting forth with the utmost positiveness 
 the claims of kings to implicit obedience — ^maxims 
 which pretended to have had their origin in the 
 New Testament, but which wero really derived from 
 indehble recollections of the Caesarian despotism — 
 the consciousness of correlative rights possessed by 
 the governed would have been entirely without the 
 means of expression if the Roman law of ObUgation 
 had not supplied a language capable of shadowing 
 forth an idea which was as yet imperfectly de- 
 veloped. >/ The antagonism between the privileges of 
 kings and their duties to their subjects was never, 
 I believe, lost sight of since Western history began, 
 but it had interest for few except speculative writers 
 so long as feudalism continued in vigour, for feudal- 
 ism effectually controlled by express customs the 
 exorbitant theoretical pretensions of most European 
 sovereigns. It is notorious, however, thatlas soon as 
 the decay of the Feudal System had thrown the me- 
 diaeval constitutions out of working order, and when 
 
346 POLITICS AND EOMAN LAW. chap, nc 
 
 the Reformation had discredited the authority of the 
 Pope, the doctrine of the divine right of Kings rose 
 immediately into an importance which had never 
 before attended it^' The vogue which it obtained en- 
 tailed stUI more constant resort to the phraseology of 
 Boman law, and a controversy which had originally 
 worn a theological aspect assumed more and more 
 the air of a legal disputation. A phenomenon then 
 appeared which has repeatedly shown itself in the 
 history of opinion. Just when the argument for 
 monarchical authority rounded itself into the definite 
 doctrine of Filmer, the phraseology, borrowed from 
 the Law of Contract, which had been used in defence 
 of the rights of subjects, crystallised into the theory 
 of an actual original compact between king and 
 people, a theory which, first in English and after- 
 wards, and more particularly, in French hands, ex- 
 panded into a comprehensive explanation of all the 
 phenomena of society and law. But the only real 
 connection between political and legal science had 
 consisted in the last giving to the first the benefit 
 of its peculiarly plastic terminology. The Roman 
 jurisprudence of Contract had performed for the 
 relation of sovereign and subject precisely the same 
 service which, in a humbler sphere, it rendered to 
 the relation of persons bound together by an obliga- 
 tion of " quasi-contract." It had furnished a body of 
 words and phrases which approximated with sufficient 
 
CHAP. II. ETHICS AND BOMAN LAW. 847 
 
 accuracy to the ideas which then were from time to 
 time forming on the subject of political obligation. 
 The doctrine of an Original Compact can never be 
 put higher than it is placed by Dr. WheweU, when 
 he suggests that, though unsound, "it may be a 
 convenient form for the expression of moral truths." 
 
 The extensive employment of legal language on 
 political subjects previously to the invention of the 
 Original Compact, and the powerful influence which 
 that assumption has exercised subsequently, amply 
 account for the plentifulness in political science of 
 words and conceptions, which were the exclusive 
 creation of Roman jurisprudence. Of their plentiful- 
 ness in Moral Philosophy a rather different explana- 
 tion must be given, inasmuch as ethical writings have 
 laid Roman law under contribution much more 
 directly than political speculations, and their authors 
 have been much more conscious of the extent of their 
 obligation. In speaking of moral philosophy as 
 extraordinarily indebted to Roman jurisprudence, I 
 must be understood to iutend'^ moral philosophy as 
 understood previously to the break in its history 
 effected by Kant, that is, as the science of the rules 
 governing human conduct, of their proper interpre- 
 tation, and of the limitations to which they are 
 subject, y Since the rise of the Critical Philosophyj 
 moral science has almost wholly lost its older mean- 
 iaig, and, except where it is preserved under a debased 
 
348 ETHICS AND KOMAN LAW. chap, rt 
 
 form in ; the casuistry still cultivated by Eoman 
 Catholic theologians, it seems to be regarded nearly 
 universally as a branch of ontological inquiry. I do 
 not know that there is a single contemporary English 
 writer, with the exception of Dr. Whewell, who un- 
 derstands moral philosophy as it was understood 
 before it was absorbed by metaphysics and before the 
 groundwork of its rules came to be a more important 
 consideration than the rules themselves. So long, 
 however, as ethical science had to do with the 
 practical regimen of conduct, it was more or less 
 saturated with Roman law. Like all the great 
 subjects of modern thought, it was originally incor- 
 porated with theology. The science of Moral Theo- 
 logy, as it was at first called, and as it is still 
 designated by the Roman Catholic divines, was un- 
 doubtedly constructed, to the full knowledge of its 
 authors, by taking principles of conduct from the 
 system of the Church, and by using the language and 
 methods of jurisprudence for their expression and 
 expansion. While this process went on, it was in- 
 evitable that jurisprudence, though merely intended 
 to be the vehicle of thought, should communicate its 
 colour to the thought itself. The tinge received 
 through contact with legal conceptions is perfectly 
 perceptible in the earliest ethical literature of the 
 modern world, and it is evident, I think, that the Law 
 of Contract, based as it is on the complete reciprocity 
 
CHAP. IX. ETHICS AND ROMAN LAW. 349 
 
 and indissoluble connection of rights and duties, has 
 acted as a wholesome corrective to the predispositions 
 of writers who, if left to themselves, might have ex- 
 clusively viewed a moral obligation as the public 
 duty of a citizen in the Civitas Dei. But the amount 
 of Roman Law in moral theology becomes sensibly 
 smaller at the time of its cultivation by the great 
 Spanish moralists. Moral theology, developed by the 
 juridical method of doctor commenting on doctor, 
 provided itself with a phraseology of its own ; and 
 Aristotelian peculiarities of reasoning and expression, 
 imbibed doubtless in great part from the Disputa- 
 tions on Morals in the academical schools, take the 
 place of that special turn of thought and speech 
 which can never be mistaken by any person conversant 
 with the Roman law. If the credit of the Spanish 
 school of moral theologians had continued, the juri- 
 dical ingredient in ethical science would have been 
 insignificant, but the use made of their conclusions 
 by the neixt generation of Roman Catholic writers on 
 these subjects almost entirely destroyed their influence. 
 Moral Theology, degraded into Casuistry, lost all inte- 
 rest for the leaders of European speculation; and the 
 new science of Moral Philosophy, which was entirely 
 in the hands of the Protestants, swerved greatly aside 
 from the path which the moral theologians had fol- 
 lowed. The effect was vastly to increase the influence 
 of Roman law on ethical inquiry. 
 
360 MORAL PHILOSOPHY. chap, dl 
 
 " Shortly* after the Reformation, we find two great 
 schools of thought dividing, this class of subjects 
 between them. The most influential of the two was 
 at first the sect or school known to us as the Casuists, 
 aU of them in spiritual communion with the Roman 
 Catholic Church, and nearly all of them affiliated to 
 one or other of her religious orders. On the other 
 side were a body of writers connected with each other 
 by a common intellectual descent from the great 
 author of the treatise De Jure Belli et Pacts, Hugo 
 Grotius. Almost all of the latter were adherents of 
 the Reformation; and though it cannot be said that 
 they were formally and avowedly at conflict with 
 the Casuists, the origin and objects of their system 
 were nevertheless essentially different from those 
 of Casuistry. It is necessary to call attention to 
 this difference, because it involves the question of 
 the influence of Roman law on that department of 
 thought with which both systems are concerned. 
 The book of Grotius, though it touches questions of 
 pure Ethics in every page, and though it is the pa- 
 rent immediate or remote of innumerable volumes of 
 formal morality, is not, as is well known, a professed 
 treatise on Moral Philosophy; it is an attempt to 
 determine the Law of Nature, or Natural Law. Now, 
 without entering upon the question whether the con- 
 
 * The passage quoted is transcribed, with slight alterations, from a 
 paper contributed by the author to the Cambridge Essays for 1856. 
 
CHAP. IX. GEOTIUS AND HIS SCHOOL. 361 
 
 ception of a Law Natural be not exclusively a crea- 
 tion of the Roman jurisconsults, we may lay down 
 that, even on the admission of Grotius himself, the 
 dicta of the Roman jurisprudence as to what parts of 
 known positive law must be taken to be parts of the 
 Law of Nature, are, if not infallible, to be received 
 at all events with the profoundest respect. Hence 
 the system of Grotius is implicated with Roman law 
 at its very foundation, and this connection rendered 
 inevitable — what the legal training of the writer 
 would perhaps have entailed without it — the free 
 employment in every paragraph of technical phraseo- 
 logy, and of modes of reasoning, defining, and illus- 
 trating, which must sometimes conceal the sense, and 
 almost always the force and cogency, of the argument 
 from the reader who is unfamiliar with the sources 
 whence they have been derived; On the other hand, 
 Casuistry borrows little from Roman law, and the 
 views of morahty contended for have nothing what- 
 ever in common with the undertaking of Grotius. 
 All that philosophy of right and wrong which has 
 become famous, or infamous, under the name of 
 Casuistry, had its origin in the distinction between 
 Mortal and Venial sin. A natural anxiety to escape 
 the awful consequences of determining a particular act 
 to be mortally sinful, and a desire, equally intelligible, 
 to assist the Roman Catholic Church in its conflict 
 wth Protestantism by disburthening it of an incon- 
 
3fi2 CASUISTRY. chap. li. 
 
 venient theory, were the motives which impelled the 
 authors of the Casuistical philosophy to the invention 
 of an elaborate system of criteria, intended to remove 
 immoral actions, in as many cases as possible, out of 
 the category of mortal oflfences, and to stamp them as 
 venial sins. /The fate of this experiment is matter of 
 ordinary history. We know that the distinctions of 
 Casuistry, by enabling the priesthood to adjust spiri- 
 tual control to all the varieties of human character, 
 did really confer on it an influence with princes, 
 statesmen, and generals, unheard of in the ages 
 before the Reformation, and did really contribute 
 largely to that great reaction which checked and 
 narrowed the first successes of Protestantism. But 
 beginning in the attempt, not to establish, but to 
 evade — not to discover a principle, but to escape a 
 postulate — ^not to settle the nature of right and 
 wrong, but to determine what was not wrong of a 
 particular nature, — Casuistry went on with its dex- 
 terous refinements tiQ it ended in so attenuating 
 the moral features of actions, and so belying the 
 moral instincts of our being, that at length the con- 
 science of mankind rose suddenly in revolt against it, 
 and consigned to one common ruin the system and its 
 doctors. The blow, long pending, was finally struck 
 in the Provincial Letters of Pascal, and since the 
 appearance of those memorable Papers, no moralist of 
 the smallest influence or credit has ever avowedly 
 
CHAP. TX. ETHICS AST) KO.MAN LAW. 353 
 
 conducted his speculations in the footsteps of the 
 Casuists. The whole field of ethical science was thus 
 left at the exclusive command of the writers who fol- 
 lowed Grotius ; and it stUl exhibits in an extraordi- 
 nary degree the traces of that entanglement with 
 Roman law which is sometimes imputed as a fault, 
 and sometimes the highest of its recommendations, to 
 the Grotian theory. Many inquirers since Grotius's 
 day have modified his principles, and many, of course, 
 since the rise of the Critical Philosophy, have quite 
 deserted them; but even those who have departed 
 most widely from his fundamental assumptions have 
 inherited much of his method of statement, of his 
 train of thought, and of his mode of illustration; and 
 these have little meaning and no point to the person 
 ignorant of Roman jurisprudence." 
 
 I have already said that, with the exception of the 
 physical sciences, there is no walk of knowledge 
 which has been so slightly affected by Roman law as 
 Metaphysics. The reason is that discussion on me^ 
 taphysical subjects has always been conducted in 
 Greek, first in pure Greek, and afterwards in a dialect 
 of Latin expressly constructed to give expression to 
 Greek conceptions. The modern languages have only 
 been fitted to metaphysical inquiries by adopting 
 this Latin dialect, or by imitating the process which 
 was originally followed in its formation. The source 
 of the phraseology which has been always employed 
 
 A.A 
 
354 METAPHYSICS AND EOMAN LAW. chai-. ix. 
 
 for metaphysical discussion in modern times was the 
 Latin translations of Aristotle, in which, whether 
 derived or not from Arabic versions, the plan of the 
 translator was not to seek for a;nalogous expressions 
 in any part of Latin literature, but to construct anew 
 from Latin roots a set of phrases equal to the ex- 
 pression of Greek philosophical ideas. Over such a 
 process the terminology of Roman law can have 
 exercised little influence; at most, a few Latin law 
 terms ia a transmuted shape have made their way 
 into metaphysical language. At the same time it is 
 worthy of remark that whenever the problems of 
 metaphysics are those which have been most strongly 
 agitated in Western Europe, the thought, if not the 
 language, betrays a legal parentage. Few things in 
 the history of speculation are more impressive than 
 the fact that no Greek-speaking people has ever felt 
 itself seriously perplexed by the great question of 
 Free-will and Necessity. I do not pretend to offer 
 any summary explanation of this, but it does not 
 seem an irrelevant suggestion that neither the Greeks, 
 nor any society speaking and thinking in their lan- 
 guage, ever showed the smallest capacity for produ- 
 cing a philosophy of law. Legal science is a Roman 
 creation, and the problem of Free-will arises when we 
 contemplate a metaphysical conception under a legal 
 aspect. How came it to be a question whether in- 
 variable sequence was identical with necessary con- 
 
CHAP. II. THEOLOGY AND ROMAIC LAW. 356 
 
 nection? I can only say that tlie tendency of Romjyi 
 law, which became stronger as it advanced, was to 
 look upon Iggal consequences as united to legal causes 
 by an inexorable necessity, a tendency most markedly 
 exemplified in the definition of Obligation which I 
 have repeatedly cited, " Juris vinculum quo neces- 
 sitate adstringimur alicujus solvendse rei." 
 
 But the problem of Free-will was theological before 
 it became philosophical, and, if its terms have been 
 affected by jurisprudence, it wiU be because Jurispru- 
 dence has made itself felt in Theology. The great 
 point of inquiry which is here suggested has never 
 been satisfactorily elucidated. What has to be de- 
 termined, is whether jurisprudence has ever served 
 as the medium through which theological principles 
 have been viewed; whether, by supplying a peculiar 
 language, a peculiar mode of reasoning, and a peculiar 
 solution of many of the problems of life, it has ever 
 opened new channels in which theological speculation 
 could flow out and expand itself. For the purpose 
 of giving an answer it is necessary to recollect what 
 is already agreed upon by the best writers as to the 
 intellectual food which theology first assimilated. It 
 is conceded on aU sides that the earliest language of 
 the Christian Church was Greek, and that the pro- 
 blems to which it first addressed itself were those 
 for which Greek philosophy in its later forms had 
 prepared the way. Greek metaphysical literature 
 
350 GREEK A>'D LATIN CHURCHES. chap, us.. 
 
 contained the sole stock of words and ideas out of 
 which the human mind could provide itself with the 
 means of engaging in the profound controversies as 
 to the Divine Persons, the Divine Substance, and 
 the Divine Natures. The Latin language and the 
 meagre Latin philosophy were quite unequal to the 
 undertaking, and accofdingly the Western or Latin- 
 speaking provinces of the Empire adopted the con- 
 clusions of the East without disputing or reviewing 
 them. "Latin Christianity," says Dean Mihnan, 
 " accepted the creed which its narrow and barren 
 vocabulary could hardly express in adequate terms. 
 Yet, throughout, the adhesion of Rome and the West 
 was a passive acquiescence in the dogmatic system 
 which had been wrought out by the profounder theo- 
 logy of the Eastern divines, rather than a vigorous 
 and original examination on her part of those mys- 
 teries. The Latin Church was the scholar as weU as 
 the loyal partizan of Athanasius." But when the 
 separation of East and West became wider, and the 
 Latin-speaking Western Empire began to live with 
 an intellectual life of its own, its deference to the 
 East was all at once exchanged for the agitation of 
 a number of questions entirely foreign to Eastern 
 speculation. "While Greek theology (Milman, Latin 
 Christianity, Preface, 5) went on defining with stUl 
 more exquisite subtlety the Godhead and the nature 
 of Christ " — " while the interminable controversy still 
 
CWAP. IX. PEOBLBMS OF WESTERN CHUKCH. ^57 
 
 lengthened out and cast forth sect after sect from the 
 enfeebled community" — ^the Western Church threw 
 itself with passionatis ardour into a new order of dis- 
 putes, the same which from those days to this have 
 never lost their interest for any family of mankind at 
 any time included in the Latin communion. The 
 nature of Sin and its transmission by inheritance — 
 the debt owed by man and its vicarious satisfaction 
 — the necessity and sufficiency of the Atonement — 
 above all the apparent antagonism between Free-will 
 and the Divine Providence — ^these were the points 
 which the West began to debate as ardently as ever 
 the East had discussed the articles of its more special 
 creed. Why is it then that on the two sides of the 
 line which divides the Greek-speaking from the 
 Latin-speaking provinces there lie two classes of 
 theological problems so strikingly different from one 
 another? The historians of the Church have come 
 close upon the solution when they remark that the 
 new problems were more " practical," less absolutely 
 speculative, than those which had torn Eastern 
 Christianity asunder, but none of them, so far as I 
 am aware, has quite reached it. I affirm without 
 hesitation that the difference between the two theo- 
 logical systems is accounted for by the fact that, in 
 passing from the East to the West, theological specu- 
 lation had passed from a climate of Greek metaphysics 
 to a climate of Roman law. For some centuries 
 
358 EOMAN LAW IN THE WEST. chap. ix. 
 
 before these controversies rose' into overwhelming 
 importance, all the intellectual activity of the Western 
 Romans had been expended on jurisprudence exclu- 
 sively. They had been occupied in applying a pecu- 
 liar set of principles to all the combinations in which 
 the circumstances of life are capable of being arranged. 
 No foreign pursuit or taste called off their attention 
 from this engrossing occupation, and for carrying it 
 on they possessed a vocabulary as accurate as it was 
 copious, a strict method of reasoning, a stock of 
 general propositions on conduct more or less verified 
 by experience, and a rigid moral philosophy. It was 
 impossible that they should not select from the ques- 
 tions indicated by the Christian records those which 
 had some affinity with the order of speculations to 
 which they were accustomed, and that their manner of 
 dealing with them should not borrow something from 
 their forensic habits. Almost everybody who has 
 knowledge enough of Roman law to appreciate the 
 Roman penal system, the Roman theory of the obli- 
 gations established by Contract or Delict, the Roman 
 view of Debts and of the modes of incurring, extin- 
 guishing, and transmitting them, the Roman notion of 
 the continuance of individual existence by Universal 
 Succession, may be trusted to say whence arose the 
 frame of mind to which the problems of Western 
 theology proved so congenial, whence came the phra- 
 seology in which these problems were stated, and 
 
OllA]'. IX. THEOLOGY AND ROMAN LAW, 359 
 
 whence the description of reasoning employed in their 
 solution. It must only be recollected that the Rom*i 
 law which had Worked itself into Western thought 
 was neither the archaic system of the ancient city, 
 nor the pruned and curtailed jtirisprudence of the 
 Byzantine Emperors; still less, of course, was it the 
 mass of rules, nearly buried in a parasitical over- 
 growth of modem speculative doctrine, which passes 
 by the name of Modern Civil Law. I speak only of 
 that philosophy of jurisprudence, wrought out by 
 the great juridical thinkers of the Antonine age, 
 which may still be partially reproduced from the 
 Pandects of Justinian, a system to which few faults 
 can be attributed except perhaps that it aimed at a 
 higher degree of elegance, certainty, and precision 
 than human aflFairs Will permit to the limits within 
 which human law seeks to confine them. 
 
 It is a singular result of that iterance of Eoman 
 law which Englishmen readily confess, and of which 
 they are sometimes not ashamed to boast, that many 
 English writers of note and credit have been led by 
 it to put forward the most untenable of paradoxes 
 concerning the condition of human intellect during 
 the Roman empire. It has been constantly asserted, 
 as unhesitatingly as if there were no temerity in ad- 
 vancing the proposition, that from the close of the 
 Augustan era to the general awakening of interest on 
 the points of the Christian faith, the mental energies 
 
360 OllEEK AND LATII^-SPEAKIxVO PROVINCES. cuxr. ix, 
 
 of the civilised world were smitten with a para- 
 lysis. Now there are two subjects of thought — the 
 only two perhaps with the exception of physical 
 science — which are able to give employment to all 
 the powers and capacities which the mind possesses. 
 One of them is Metaphysical inquiry, which knows no 
 limits so long as the mind is satisfied to woi-k on 
 itself; the other is Law, which is as extensive as the 
 concerns of mankind. It happens, that, during the 
 very period indicated, the Greek-speaking provinces 
 were devoted to one, the Latin-speaking provinces to 
 the other of these studies. I say nothing of the fruits 
 rf speculation in Alexandria and the East, but I con- 
 fidently affirm that Rome and the West lutd an occu- 
 pation in hand fully capable of compensating them 
 for the absence of every other mental exercise, and I 
 add that the results achieved, so far as we know 
 them, were not unworthy of the continuous and ex- 
 clusive labour bestowed on producing them. Nobody 
 except a professional lawyer is perhaps in a position 
 completely to understand how much of the intellectual 
 strength of individuals Law is capable of absorbing, 
 but a layman has no difficulty in comprehending why 
 it was that an unusual share of the collective intellect 
 of Rome was engrossed by jurisprudence, " The 
 proficiency * of a given community in jurisprudence 
 depends in the long run on the same conditions as its 
 * Cambridge Essays, 1856. 
 
vJiLVP. IX. CAUSES OF IMPROVEMENT IN ROMAN LAW. 361 
 
 progress in any other line of inquiry; and the chief 
 of these are the proportion of the national intellect 
 devoted to it, and the length of time during which it 
 is so devoted. Now, a combination of all the causes, 
 direct and indirect, which contribute to the advancing 
 and perfecting of a science, continued to operate on the 
 jurisprudence of Rome through the entire space be- 
 tween the Twelve Tables and the severance of the two 
 Empires, — and that not irregularly or at intervals, 
 but in steadily increasing force and constantly aug- 
 menting number. We should reflect that the earliest 
 intellectual exercise to which a young nation devotes 
 itself is the study of its laws. As soon as the mind 
 makes its first conscious efforts towards generali- 
 sation, the concerns of every-day life are the first to 
 press for inclusion within general rules and com- 
 prehensive formulas. The popularity of the pursuit 
 on which all the energies of the young common- 
 wealth are bent is at the outset unbounded; but 
 it ceases in time. The monopoly of mind by law 
 is broken down. The crowd at the morning au- 
 dience of the great Roman jurisconsult lessens. 
 The students are counted by hundreds instead of 
 thousands in the English Inns of Court. Art, 
 Literature, Science, and Politics, claim their share 
 of the national intellect; and the practice, of juris- 
 prudence is confined within the circle of a profession; 
 never indeed limited or insignificant, but attracted 
 
862 CAUSES OF IMPKOVEilEXT IN ROMAN LAW. chap, ix 
 
 as much by the rewards as by the inttmsic re- 
 commendations of their science. This succession 
 of changes exhibited itself even more strikingly at 
 Rome than in England. To the close of the RepubHc 
 the law was the sole field for all abUity except the 
 special talent of a capacity for generalship. But a 
 new stage of intellectual progress began with the 
 Augustan, age, as it did with our own Elizabethan 
 era. We all know what were its achievements in 
 poetry and prose : but there are some indications, it 
 should be remarked, that, besides its efflorescence in 
 ornamental literature, it was on the eve of throwing 
 out new aptitudes for conquest in physical science. 
 Here, however, is the point at which the history of 
 mind in the Roman States ceases to be parallel to the 
 routes which mental progress has since then pursued. 
 The brief span of Roman literature, strictly so called, 
 was suddenly closed under a variety of influences, 
 which, though they may partially be traced, it would 
 be improper in this place to analyse. Ancient intel- 
 lect was forcibly thrust back into its old courses, and 
 law again became no less exclusively the proper 
 sphere for talent than it had been in the days when 
 the Romans despised philosophy and poetry as the 
 toys of a childish race. Of what nature were the ex- 
 ternal inducements which, during the Imperial period, 
 tended to draw a man of inherent capacity to the 
 pursuits of the jurisconsult may best be understood 
 
CHAP. IX. EOMAlf LAW IN THE EAST. 363 
 
 by considering the option which was practically before 
 him in 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 
 the practice of the law. Through that lay the ap- 
 proach to wealth, to fame, to office, to the council- 
 chamber of the monarch — ^it may be to the very 
 throne itself." 
 
 The premium on the study of jurisprudence was so 
 enormous that there were schools of law in every part 
 of the Empire, even in the very domain of Metaphy- 
 sics. But, though the transfer of the seat of empire 
 to Byzantium gave a perceptible impetus to its culti- 
 vation in the East, jurisprudence never dethroned 
 the pursuits which there competed withdt. Its lan- 
 guage was Latin, an exotic dialect in the Eastern half 
 of the Empire. It is only of the West that we can 
 lay down that law was not only the mental food of 
 the ambitious and aspiring, but the sole aliment of 
 all intellectual activity. Greek philosophy had never 
 been more than a transient fashionable taste with the 
 educated class of Rome itself, and when the new 
 Eastern capital had been created, and the Empire 
 subsequently divided into two, the divorce of the 
 Western provinces from Greek speculation, and their 
 exclusive devotion to jurisprudence, became more de- 
 cided than ever. As soon then as they ceased to sit 
 
3C4 EOMAN LAW IN WESTEEN THEOLOGY, chap, ix, 
 
 at the feet of the Greeks and began to ponder out a 
 theology of their own. the theology proved to be per- 
 meated with forensic ideas and couched in a forensic 
 phraseology. It is certain that this substratum of 
 law in Western theology lies exceedingly deep. A 
 new set of Greek theories, the Aristotelian philosophy, 
 made their way afterwards into the West, and almost 
 entirely buried its indigenous doctrines. But when 
 at the Keformation it partially shook itself free from 
 their influence, it instantly supplied their place with 
 Law. It is difficult to say whether the religious sys- 
 tem of Calvin or the religious system of the Armi- 
 nians has the more markedly legal character. 
 
 The vast influence of this specific jurisprudence of 
 Contract produced by the Eomans upon the corre- 
 sponding department of modern Law belongs rather 
 to the history of mature jurisprudence than to a 
 treatise hke the present. It did not make itself felt 
 till the school of Bologna founded the legal science 
 of modem Europe. But the fact that the Romans, 
 before their Empire fell, had so fully developed the 
 conception of Contract becomes of importance at a 
 much earlier period than this. Feudalism, I have 
 repeatedly asserted, was a compound of archaic bar- 
 barian usage with Roman law; no other explanation 
 of it is tenable, or even intelligible. The earliest 
 social forms of the feudal period differ in little from 
 the ordinary associations in which the men of primi- 
 
CHAP. tx. CONTRACT-LAW AND FEUDALISM. 3C5 
 
 tive civilisations are everywhere seen united. A 
 Fief was an organically complete brotherhood of 
 associates whose proprietary and personal rights were 
 inextricably blended together. It had much in com- 
 mon with an Indian Village Community and much 
 in common with a Highland clan. But still it pre- 
 sents some phenomena which we never find in the asso- 
 ciations which are spontaneously formed by beginners 
 in civilisation, w True archaic communities are held 
 together not by express rules, but by sentiment, or, 
 we should pei'haps say, by instinct ; and new comers 
 into the brotherhood are brought within the range of 
 this instinct by falsely pretending to share in the 
 blood-relationship from which it naturally springs. 
 But the earliest feudal communities were neither 
 bound together by mere sentiment nor recruited by a 
 fiction. The tie which united them was Contract, 
 and they obtained new associates by contracting with 
 them. The relation of the lord to the vassals had 
 originally been settled by express engagement, and a 
 person wishing to engraft himself on the brotherhood 
 by commendation or infeudation came to a distinct 
 understanding as to the conditions on which he was 
 to be admitted. It is therefore the sphere occupied 
 in them by Contract which principally distinguishes 
 the feudal institutions from the unadulterated usages 
 of primitive races. The lord had many of the cha- 
 racteristics of a patriarchal chieftain, but his pre- 
 
366 CONTHACT-LAW AM) FEUDALISM. chap, ix 
 
 rogadve was limited by a variety of settled customs 
 ' traceable to the express conditions which had been 
 agreed upon when the infeudation took place.'/ H6nce 
 flow the chief difiFerences which forbid us to class the 
 feudal societies with true archaic communities. They 
 were much more durable and much more various; 
 more durable, because express rules are less destruc- 
 tible than instinctive habits, and more various, be- 
 cause the contracts on which they were founded were 
 adjusted to the minutest circumstances and wishes of 
 the persons who surrendered or granted away then- 
 lands. This last consideration may serve to indicate 
 how greatly the vulgar opinions current among us 
 as to the origin of modem socieiy stand in need of 
 revision. It is often said that the irregular and 
 various contour of modem civilisation is due to the 
 exuberant and erratic genius of the Germanic races, 
 and it is often contrasted with the dull routine of 
 the Roman Empire. The truth is that the Empire 
 bequeathed to modern; society the legal conception 
 to which all this irregularity is attributable; if the 
 customs and institutions of barbarians have one 
 characteristic more striking than another, it is their 
 extreme uniformity. 
 
CHAP. X. LAW IN ANCIENT CODES. 367 
 
 CHAPTER X. 
 
 THE EARLY HISTORY OF DELICT AND CRIME. 
 
 The Teutonic Codes, including those of our Anglo- 
 Saxon ancestors, are the only bodies of archaic 
 secular la^ which have come down to us iii such a 
 state that we can form an exact notion of their ori- 
 ginal dimensions. Although the extant fragments 
 of Roman and Hellenic codes suffice to prove to us 
 their general character, there does not remain enough 
 of them for us to be quite sure of their precise mag- 
 nitude or of the proportion of their parts to each 
 other. But still on the whole all the known collections 
 of ancient law are characterised by a feature which 
 broadly distinguishes them from systems of mature 
 jurisprudence. The proportion of criminal to civil 
 law is exceedingly different. In the German codes, the 
 civU part of the law has trifling dimensions as com- 
 pared with the criminal. The traditions which speak 
 of the sanguinary penalties inflicted by the code of 
 Draco seem to indicate that it had the same charac- 
 teristic. In the Twelve Tables alone, produced by a 
 society of greater legal genius and at first of gentler 
 manners, the civil law has something like its modern 
 precedence; but the relative amount of space given 
 
3«8 PENAL LAW UST ANCIENT CODES. chap. s. 
 
 to the modes of redressing wrong, thougt not enor- 
 mous, appears to have been large. It may be laid 
 dovm, I think, that the more archaic the code, the 
 fuller and the minuter is its penal legislation. The 
 phenomenon has often been observed, and has been 
 explained, no doubt to a great extent correctly, by 
 the violence habitual to the communities which for 
 the first time reduced their laws to writing. The 
 legislator, it is said, proportioned the divisions of his 
 work to the frequency of a certain class of incidents 
 in barbarian life. I imagine, however, that this 
 account is not quite complete. It should be recol- 
 lected that the comparative barrenness of civil law 
 in archaic collections is consistent with those other 
 characteristics of ancient jurisprudence which have 
 been discussed in this treatise. Nine-tenths of the 
 civU part of the law practised by civilised societies 
 are made up of the Law of Persons, of the Law of 
 Property and of Inheritance, and of the Law of 
 Contract. But it is plain that all these provinces 
 of jurisprudence must shrink within narrower boun- 
 daries, the nearer we make our approaches to the 
 infancy of social brotherhood. !The Law of Persons, 
 which is nothing else than the Law of Status, wiU 
 be restricted to the scantiest limits as long as all 
 forms of status are merged in common subjection to 
 Paternal Power, as long as the Wife has no rights 
 against her Husband, the Son none against hia 
 
CHAP. X. CKIJIES AND WEOXGS. 369 
 
 Father, and the infant Ward none agamst the Ag- 
 nates who are his Giwrdians. Similarly, the rules 
 relating to Property and Succession can never be 
 plentiful, so long as land and goods devolve within 
 the family, and, if distributed at all, are distributed 
 inside its circle. But the greatest gap in ancient 
 sivil law will always be caused by the absence of 
 Contract, which some archaic codes do not mention at 
 all, while others significantly attest the immaturity 
 of the moral notions on which Contract depends by 
 supplying its place with an elaborate jurisprudence 
 of Oaths. There are no corresponding reasons for 
 the poverty of penal law, and accordingly, even if 
 it be hazardous to pronounce that the childhood of 
 nations is always a period of ungoverned violence, 
 we shall stiU be able to understand why the modern 
 relation of criminal law to civil should be inverted in 
 ancient codes. 
 
 I have spoken of primitive jurisprudence as giving 
 to criminal law a priority unknown in a later age. 
 The expression has been used for convenience' sake, 
 but in fact the iuspection of ancient codes shows that 
 the law which they exhibit in unusual quantities is > 
 not true criminal law. All civilised systems agree 
 in drawing a distinction between offences against the • 
 State or Community and offences against the Indi- 
 vidual, and the two classes of injuries, thus kept 
 apart^ I may here, without pretending that the terms 
 
 B B 
 
870 CRIMES AND WKONGS. chap. x. 
 
 have always been employed consistently in jurispru- 
 dence, call , (Crimes and Wrongs, crimina and delicta 
 jNow the penal Law of ancient communities is not 
 the law of Crimes; it is the law of Wrongs, or, to 
 use the English technical word, of Torts. The person 
 injured proceeds against the wrong-doer by an ordi- 
 nary civil action, and recovers compensation in the 
 shape of money-damages if he succeeds. If the 
 Commentaries of Gains be opened at the place where 
 the writer treats of the penal jurisprudence founded 
 on the Twelve Tables, it wlQ be seen that at the 
 head of the civil wrongs recognised by the Roman 
 law stood Furtum or Theft. Offences which we are 
 accustomed to regard exclusively as crimes are ex- 
 clusively treated as torts, and not theft- only, but 
 assault and violent robbery, are associated by the 
 jurisconsult with trespass, libel, and slander. AU 
 aJike gave rise to an Obligation or vinculum juris, 
 and were all requited by a payment of money. This 
 peculiarity, however, is most strongly brought out 
 in the consolidated Laws of the Germanic tribes. 
 JfV^ithout an exception, they describe an immense 
 system of money compensations for homicide, and 
 with few exceptions, as large a scheme of compensa- 
 tion for minor injuries. " Under Anglo-Saxon law," 
 writes Mr. Kemble {Anglo-Saxons, i. 177), "a sum 
 was placed on thelife of every free man, according to 
 his rank, and a corresponding sum on every wound 
 
fflCAi'. X. WEONGS AND SINS. 371 
 
 that could be inflicted on his person, for nearly every 
 injury that could be done to his civil rights, honour, 
 or peace; the sum being aggravated according to 
 adventitious circumstances." These compositions are 
 evidently regarded as a valuable source of income ; 
 highly complex rules regulate the title to them and 
 the responsibility for them ; and, as I have already 
 had occasion to state, they often follow a very 
 peculiar line of devolution, if they have not been 
 acquitted at the decease of the person to whom 
 they belong. -> If therefore the criterion of a delidc^ 
 wrong, or tort be that the person who suffers it, and 
 not the State, is conceived to be wronged, it may be 
 asserted that in the infancy of jurisprudence the 
 citizen depends for protection against ' violence or 
 fraud not on the Law of Crime but on the Law of 
 Tort. 
 
 Torts then are copiously enlarged upon in primi 
 tive jurisprudence. It must be added that Sins are 
 known to it also. Of the Teutonic codes it is almost 
 unnecessary to make this assertion, because those 
 codes, in the form in which we have received them, 
 were compiled or recast by Christian legislators. But 
 it is also true that non-Christian bodies of archaic 
 law entail penal consequences on certain classes of 
 acts and on certain classes of omissions, as being 
 violations of divine prescriptions and commands. 
 The law administered at Athens by the Senate of 
 
 B B 5» 
 
872 COXCEPTIOU' OF CEIMK. chap. X. 
 
 Areopagus was probably a special religious code, and 
 at Rome, apparently from a very early period, the 
 Pontifical jurisprudence punished adultery, sacrilege, 
 and perhaps murder. >^There were therefore in the 
 Athenian and in the Roman States laws punishing 
 sins. There were also laws punishing torts. The con- 
 ception of offence against God produced the first class 
 of ordinances ; the conception of offence against one's 
 neighbour produced the second ; but the idea of offence 
 against the State or aggregate community did not at 
 first produce a true criminal jurisprudence. 
 
 Yet it is not to be supposed that a conception 
 so simple and elementary as that of wrong done to 
 the State was wanting in any primitive society. It 
 seems rather that the very distinctness with which 
 this conception is realised is the true cause which at 
 first prevents the growth of a criminal law. At all 
 events, when the Roman community conceived itself 
 to be injured, the analogy of a personal wrong received 
 was carried out to its consequences with absolute 
 literalness, and the State avenged itself by a single 
 act on the individual wrong-doer. The result was 
 that, in the infancy of the commonwealth, every 
 offence vitally touching its security or its interests 
 was punished by a separate enactment of the legis- 
 lature. And this is the earliest conception of a 
 mmen or Crime — an act involving such high issues 
 that the State, instead of leaving its cognisance 
 
CHAP. i. ANCIENT CONCEPTION 0^ CHIME. 373 
 
 to the civil tribunal or the religious court, directed 
 a special law or privilegium against the perpetratorj 
 Eveiy indictment therefore took the form of a bill 
 of pains and penalties, and the trial of a criminal 
 was a proceeding wholly extraordinary, whoUy irre- 
 gular, wholly independent of settled rules and fixed 
 conditions. Consequently, both for the reason that 
 the tribunal dispensing justice was the sovereign 
 State itself and also for the reason that no classifi- 
 cation of the acts prescribed or forbidden was pos- 
 sible, there was not at this epoch any Law of Crimes, 
 any criminal jurisprudence. The procedure was 
 identical with the forms of passing an ordinary 
 
 ' statute ; it was set in motion by the same persons 
 and conducted with precisely the same solemnities. 
 And it is to be observed that, when a regular 
 criminal law with an apparatus of Courts and officers 
 
 , for its administration had afterwards come into 
 being, the old procedure, as might be supposed 
 fi:om its conformity with theory, still in strictness 
 remained practicable ; and, much as resort to such 
 an expedient was discredited, the people of Rome 
 always retained the power of punishing by a special 
 laAv offences against its majesty. The classical 
 scholar does not require to be reminded that in 
 exactly the same manner the Athenian BiU of 
 Pains and Penalties, or eltrayyeXCa, survived the 
 establishment of regular tribunals. It is known too 
 
374 ANCIENT PROCEDURE. ciUP. I. 
 
 that when the freemen of the Teutonic races assem- 
 bled for legislation, they also claimed authority to 
 punish offences of peculiar blackness or perpetrated 
 by criminals of exalted station. Of this nature 
 was the criminal jurisdiction of the Anglo-Saxon 
 Witenagemot. 
 
 It may be thought that the difference which I have 
 asserted to exist between the ancient and modern 
 view of penal law has only a verbal existence- 
 The community, it may be said, besides inter- 
 posing to punish crimes legislatively, has from the 
 earliest times interfered by its tribunals to compel 
 the wrong- doer to compound for his wrong, and 
 if it does this, it must always have supposed that 
 in some way it was injured through his offence. 
 But, however rigorous this inference may seem to 
 us now-a-days, it is very doubtful whether it was 
 actually drawn by the men of primitive antiquity. 
 How little the notion of injury to the community 
 had to do with the earliest interferences of the State 
 through its tribunals, is shown by the curious circum- 
 stances that in the original administration of justice, 
 the proceedings were a close imitation of the series 
 of acts which were likely to be gone through in 
 private life by persons who were disputing, but who 
 afterwards suffered their quarrel to be appeased. 
 The magistrate carefully simulated the demeanour 
 of a private arbitrator casually called in. 
 
CHAP. X. THE KOMAlf LEGIS ACTIO. 375 
 
 In order to show that this statement is not a mere 
 fanciful conceit, I will produce the evidence on 
 which it rests. Very far the most ancient judicial 
 proceeding known to us is the Legis Actio Sacra- 
 menti of the Eomans, out of which all the later 
 Roman Law of Actions may be proved to have 
 grown. Gains carefully describes its ceremonial. 
 Unmeaning and grotesque as it appears at first 
 sight, a little attention enables us to decipher and 
 interpret it. 
 
 The subject of litigation is supposed to be in 
 Court. If it is moveable, it is actually there. If it 
 be immoveable, a fragment or sample of it is brought 
 in its place; land, for instance, is represented by a 
 clod, a house by a single brick. In the example 
 selected by Gains, the suit is for a slave. The pro- 
 ceeding begins by the plaintiff's advancing with a 
 rod, which, as Gains expressly tells, symbolised a 
 spear. He lays hold of the slave and asserts a right 
 to him with the words, " Hunc ego liominem ex Jure 
 Quiritium mewn esse dico secundum suam causam 
 sicut dixi ; " and then saying, " Ecce tihi Vindictam im- 
 posui," he touches him with the spear. The de- 
 fendant goes through the same series of acts and 
 gestures. On this the Praetor intervenes, and bids the 
 litigants relax their hold, '■'• Mittite amho hominem." 
 They obey, and the plaintiff demands from the 
 defendatit the reason of his interference, " Postido 
 
376 MEANING OF THE LEGIS ACTIO. chap. X. 
 
 anne dicas qud ex causd vindicaveris" a question 
 which is replied to by a fresh assertion of right, 
 ," Jms peregi sicut vindictam imposui." On this, the 
 first claimant offers to stake a sum of money, called 
 a Sacramentum, on the justice of his own case, 
 " Quando tu injurid provocasti, D certs Sacramento te 
 provoco" and the defendant, in the phrase " Similiter 
 ego te" accepts the wager. The subsequent proceed- 
 ings were no longer of a formal kind, but it is to 
 be observed that the Prajtor took security for the 
 Sacramentum, which always went into the coffers of 
 the State, 
 
 Such was the necessary preface of every ancient 
 Roman suit. It is impossible, I think, to refuse 
 assent to the suggestion of those who see in it a 
 dramatization of the origin of Justice. Two armed 
 men are wrangling about some disputed property. 
 The Pr33tor, vir pietate gravis^ happens to be going 
 by and interposes to stop the contest. The dis- 
 putants state their case to him, and agree that 
 he shall arbitrate between them, it being arranged 
 that the loser, besides resigning the subject of the 
 quarrel, shall pay a sum of money to the umpire 
 as remuneration for his trouble and loss of time. 
 This interpretation would be less plausible than it 
 is, were it not that, by a surprising coincidence, the 
 ceremony described by Gains as the imperative 
 course of proceeding in a Legis Actio is substantially 
 
CHAP. X. ANCIENT SUIT IN HOMER. 377 
 
 the same with one of the two subjects which the 
 God Hephaestus is described by Homer as mouldii% 
 into the First Compartment of the Shield of Achilles. 
 In the Homeric trial-scene, the dispute, as if ex- 
 pressly intended to bring out the characteristics of 
 primitive society, is not about property, but about 
 the composition for a homicide. One person asserts 
 that he has paid it, the other that he has never 
 received it. The point of detail, however, which 
 stamps the picture as the counterpart of the archaic 
 Koman practice is the reward designed for the 
 judges. Two talents of gold lie in the middle, to 
 be given to him who shall explain the grounds of the 
 decision most to the satisfaction of the audience. 
 The magnitude of this sum as compared with the 
 trifling amount of the Sacramentum seems to me 
 indicative of the diflference between fluctuating usage 
 and usage consolidated into law. The scene iutro- 
 duced by the poet as a striking and characteristic, 
 but stUl only occasional, feature of city life in the 
 heroic age has stiffened, at the opening of the history 
 of civil process, into the regular, ordinary formalities 
 of a lawsuit. It is natural therefore that in the 
 Legis Actio the remuneration of the Judge should 
 be reduced to a reasonable sum, and that, instead 
 of being adjudged to one of a number of arbitrators 
 by popular acclamation, it should be paid as a 
 matter of course to the State which the Praetor 
 
378 ANCIENT VIEW OF PROCEDUEB. chap. x. 
 
 represents. But that tlie incidents described so 
 vividly by Homer, and by Gains with even more 
 than the usual crudity of technical language, have 
 substantially the same meaning, I cannot doubt; 
 and in confirmation of this view it may be added 
 that many observers of the earliest judicial usages 
 of modem Europe have remarked that the fines 
 inflicted by Courts on offenders were originally 
 sacrammta. The State did not take from the 
 defendant a composition for any wrong supposed 
 to be done to itself, but claimed a share in the 
 compensation awarded to the plaintiff simply as the 
 fair price of its time and trouble. Mr. Kemble 
 expressly assigns this character to the Anglo-Saxon 
 hannwm or fredum. 
 
 4 Ancient law furnishes other proofs that the earliest 
 administrators of justice simulated the probable acts 
 of persons engaged in a private quarrel. In settling 
 the damages to be awarded, they took as their guide 
 the measure of vengeance likely to be exacted by an 
 aggrieved person under the circumstances of the 
 case. This is the true explanation of the very dif- 
 ferent penalties imposed by ancient law on offenders 
 caught in the act or soon after it and on offenders 
 detected after considerable delay. J Some strange ex- 
 emplifications of this peculiarity are supplied by the 
 old Eoman law of Theft. The laws of the Twelve 
 Tables seem to have divided Thefts into Manifest and 
 
CHAP. X. OLD KOMAN LAW OF THEFT. 379 
 
 Noi] -Manifest, and to have allotted extraordinarily 
 different penalties to the offence according as it fell 
 under one head or the other. The Manifest Thief 
 was he who was caught within the house in which 
 he, had been pilfering, or who was taken while making 
 off to a place of safety with the stolen goods; the 
 Twelve Tables condemned him to be put to death if 
 he were already a slave, and if he were a freeman, they 
 made him the bondsman of the owner of the pro- 
 perty. The Non-Manifest Thief was he who was 
 detected under any other circumstances than those 
 described ; and the old code simply directed that an 
 offender of this sort should refund double the value 
 of what he had stolen. In Gaius's day the excessive 
 severity of the Twelve Tables to the Manifest Thief 
 had naturally been much mitigated, but the law still 
 maintained the old principle by mulcting him in 
 fourfold the value of the stolen goods, while the 
 Non-Manifest Thief still continued to pay merely the 
 double. The ancient lawgiver doubtless considered 
 that the injured proprietor, if left to himself, would 
 inflict a very different punishment when his blood 
 was hot from that with which he would be satisfied 
 when the Thief was detected after a considerable 
 interval; and to this calculation the legal scale of 
 penalties Was adjusted. The principle is precisely 
 the same as that followed in the Anglo-Saxon and 
 other Germanic codes, when they suffer a thief chased 
 
360 ANCIENT MEASURE OF PUNISHMENT. chap. x. 
 
 down and caught with the booty to be hanged or 
 decapitated on the spot, while they exact the full 
 penalties of homicide from anybody who kills him 
 after the pursuit has been intermitted. These archaic 
 distinctions bring home to us very forcibly the 
 distance of a refined from a rude jurisprudence. 
 The modern administrator of justice has confessedly 
 one of his hardest tasks before him when he under- 
 takes to discriminate between the degrees of crimi- 
 nality which belong to offences falling within the 
 same technical description. It is always easy to say 
 that a man is guilty of manslaughter, larceny, or bi- 
 gamy, but it is often most difficult to pronounce what 
 extent of moral guilt he has incurred, and conse- 
 quently what measure of punishment he has deserved. 
 There is hardly any perplexity in casuistry, or in the 
 analysis of motive, which we may not be called upon 
 to confront, if we attempt to settle such a point with 
 precision ; and accordingly the law of our day shows 
 an increasing tendency to abstain as much as pos- 
 sible from laying down positive rules on the subject. 
 In France, the jury is left to decide whether the 
 offence which it finds committed has been attended 
 by extenuating circumstances; in England, a nearly 
 unbounded latitude in the selection of punishments is 
 now allowed to the judge ; while all States have in 
 reserve an ultimate remedy for the miscarriages of law 
 in the Prerogative of Pardon, universally lodged with 
 
CHAP. X. TRUE CRIMINAL JURISPRUDENCE. 381 
 
 tlie Chief Magistrate. It is curious to observe how 
 little the men of primitive times were troubled with 
 these scruples, how completely they were persuaded 
 that the impulses of the injured person were the 
 proper measure of the vengeance he was entitled to 
 exact, and how literally they imitated the probable rise 
 and fall of his passions in fixing their scale of punish- 
 ment. I wish it could be said that their method of 
 legislation is quite extinct. There are, however, 
 several modern systems of law which, in cases of 
 graver wrong, admit the fact of the wrong-doer having 
 been taken in the act to be pleaded in justification 
 of inordinate punishment inflicted on him by the 
 sufferer — an indulgence which, though superficially 
 regarded it may seem intelligible, is based, as it 
 seems to me, on a very low morality. 
 
 Nothing, I have said, can be simpler than the con- 
 siderations which ultimately led ancient societies to 
 the formation of a true criminal jurisprudence. The 
 State conceived itself to be wronged, and the Popular 
 Assembly struck straight at the offender with the 
 same movement which accompanied its legislative 
 action. It is further 'true of the ancient world— 
 though not precisely of the modern, as I shall have 
 occasion to point out — ^that the earliest criminal 
 tribunals were merely subdivisions, or committees, of 
 the legislature. This, at all events, is the conclusion 
 pointed at by the legal history of the two great 
 
382 CRIMISrAI, JUKISDICTION OF LEGISLATURE. CJUV. x. 
 
 States of antiquity with tolerable clearness in one 
 case, and with absolute distinctness in the other. 
 The primitive penal law of Athens intrusted the 
 castigation of oflFences partly to the Archons, who 
 seem to have punished them as torts, and partly to 
 the Senate of Areopagus, which punished them as 
 sins. Both jurisdictions were substantially trans- 
 ferred in the end to the Heliasa, the High Court of 
 Popular Justice, and the functions of the Archons 
 and of the Areopagus became either merely minis- 
 terial or quite iasignificant. But " Heliaea " is only 
 an old word for assembly ; the Heli£ea of classical 
 times was simply the Popular Assembly convened 
 for judicial purposes, and the famous Dikasteries of 
 Athens were only its subdivisions or panels. The 
 corresponding changes which occurred at Eome are 
 still more easily interpreted, because the Eomans 
 confined their experiments to the penal law, and did 
 not, like the Athenians, construct popular courts 
 with a civil as well as a criminal jurisdiction. -^ The 
 history of Roman criminal jurisprudence begins with 
 the old Judicia Populi,^t which the Kings are said 
 to have presided. These were simply solemn trials 
 of great offenders under legislative forms. It seems, 
 however, that from an early period the Comitia had 
 occasionally delegated its criminal jurisdiction to a 
 Qusastic or Commission, which bore much the same 
 relation to the Assembly which a Committee of the 
 
CHAP, X. THE QUiESTIONES. 383 
 
 House of Commons bears to the House itself, except 
 that the Eoman Commissioners or Qusestores did ncrf; 
 merely report to the Comitia, but exercised all powers 
 which that body was itself in the habit of exercising, 
 even to the passing sentence on the accused. A 
 Quasstio of this sort was only appointed to try a par- 
 ticLilar offender, but there was nothing to prevent 
 two or three QusBstiones sitting at the same time; 
 and it is probable that several of them were ap- 
 pointed simultaneously, when several grave cases of 
 wrong to the community had occurred together. 
 There are also indications that now and then these 
 Quaestiones approached the character of our Standing 
 Committees, in that they were appointed periodi- 
 cally, and without waiting for occasion to arise in 
 the commission of some serious crime. The old 
 Quaestores Parricidii, who are mentioned in connec- 
 tion with transactions of very ancient date, as being 
 deputed to try (or, as some take it, to search out 
 and try) all cases of parricide and murder, seem to 
 have been appoiated regularly every year; and the 
 Duumviri Perduellionis, or Commission of Two for 
 trial of violent injury to the Commonwealth, are also 
 believed by most writers to have been named pe- 
 riodically. The delegations of power to these latter 
 functionaries bring us some way forwards. Instead 
 of being appointed whm and as state-offences were 
 committed, they had a general, though a temporary 
 
384 QUiESTIOIfES PEEPETUiE. chap. x. 
 
 jurisdiction over such as might be perpetrated. Our 
 proximity to a regular criminal jurisprudence is also 
 indicated by the general terms " Parricidium " and 
 " PerdueUio," which mark the approach to some- 
 thing like a classification of crimes. 
 vThe true criminal law did not however come iuto 
 existence till the year B.C. 149, when L. Calpurnius 
 Piso carried the statute known as the Lex Calpurnia 
 de Repetundis. The law applied to cases Repetun- 
 darum Pecuniarum, that is, claims by Provincials to 
 recover monies improperly received by a Governor- 
 General, but the great and permanent importance of 
 this statute arose from its establishing the first Qusestio 
 Perpetua. A Quaestio Perpetua was a Permanent 
 Commission as opposed to those which were occasional 
 and to those which were temporary. It was a re- 
 gular criminal tribunal, whose existence dated fi-om 
 the passing of the statute creating it and continued 
 till another statute should pass abolishing it. 7 Its 
 members were not specially nominated, as were the 
 members of the older Qusestiones, but provision was 
 made in the law constituting it for selecting from 
 particular classes the judges who were to offi- 
 ciate, and for renewing them in conformity with 
 definite rules. VThe offences of which it took cog- 
 nisance were also expressly named and defined in 
 this statute, and the new Qutestio had authority to 
 try and sentence all persons in future whose acta 
 
CHAP. X. HISTOKT OP CRIMINAL LAW. 38a 
 
 should fall under the definitions of crime supplied by 
 the law. It was therefore a regular criminal judica 
 ture, administering a true criminal jurisprudence. ^ 
 vThe primitive history of criminal law divides it- 
 seK therefore into four stages. Understanding that 
 the conception of Crime, as' distinguished from that 
 of Wrong or Tort, and from that of Sin, involves the 
 idea of injury to the State or collective community, 
 we first find that the commonwealth, in literal 
 conformity with the conception, itself interposed 
 directly, and by isolated acts, to avenge itself on the 
 author of the evil which it had suffered. This is the 
 point from which we start; each indictment is now a 
 bill of pains and penalties, a special law naming the 
 criminal and prescribing his punishment. A second 
 step is accomplished when the multiplicity of crimes 
 compels the legislature to delegate its powers to 
 particular Qusestiones or Commissions, each of which 
 is deputed to investigate a particular accusation, and, 
 if it be proved, to punish the particular offender. 
 Yet another movement is made when the legislature, 
 instead of waiting for the alleged commission of a 
 crime as the occasion of appointing a Qusestio, periodi- 
 cally nominates Commissioners like the Qusestores 
 Parricidii and the Duumviri Perduellionis, on the 
 chance of certain classes of crimes being committed, 
 and in the expectation that they will be perpetrated. 
 The last stage is reached when the Quaestionea 
 
 CO 
 
386 THE QUiESTlOiraiS VERPETVM. chap. x. 
 
 from being periodical or occasional become permanent 
 Benches or Chambers — ^when the judges, instead of 
 being named in the particular law nominating the 
 Commission, are directed to be chosen through all 
 future time in a particular way and from a particular 
 class — and when certain acts are described in general 
 language and declared to be crimes, to be visited, 
 in the event of their perpetration, with specified 
 penalties appropriated to each description.y 
 
 If the Quaestiones Perpetuse had had a longer his- 
 tory, they would doubtless have cdme to be regarded 
 as a distinct institution, and their relation to the 
 Comitia would have seemed no closer than the con- 
 nection of our own Courts of Law with the Sovereign,"^ 
 who is theoretically the fountain of justice. But the 
 Imperial despotism destroyed them' before their 
 origin had been completely forgotten, and so long 
 as they lasted, these Permanent Commissions were 
 looked upon by the Romans as the mere depositaries 
 of a delegated power. The cognisance of crimes 
 was considered a natural attribute of the legislature, 
 and the mind of the citizen never ceased to be carried 
 back from the Quasstiones to the Comitia which had 
 deputed them to put into exercise some of its own 
 inalienable functions. The view which regarded the 
 QusBstiones, even when they became permanent^ 
 as mere Committees of the Popular Assembly — as 
 bodies which only ministered to a higher authority 
 
CHAP. I. THEOET OF THE QU^ESTIOlfES. 087 
 
 — ^had some important legal consequences wHcli left 
 their mark on the criminal law to the very latest 
 period. One immediate result was that the Comitia 
 continued to exercise criminal jurisdiction by way of 
 bUls of pains and penalties, long after the Quaestiones 
 had been established. Though the legislature had 
 consented toddegate its powers for the sake of con- 
 venience to bodies external to itself, it did not follow 
 that it surrendered them. 7The Comitia and the 
 Quaestiones went on trying and punishing offenders 
 side by side ^and any unusual outburst of popular 
 indignation was sure, until the extinction of .the 
 Republic, to call down upon its obpect an indictment 
 before the Assembly of the Tribes. ■■ ■ 
 
 One of the most remarkable peculiarities of the 
 institutions of the Republic is also traceable toithis 
 dependence of the Quaestionesi on the Comitia. The 
 disappearance of the pimishment of death vfeom 
 the penal system of Republican Rome used to be 
 a very fevourite topic with .the writers of « the last 
 centuny, who were perpetually using- it to point some 
 theory of the Roman character or of modern social 
 economy. The reason which can be confidently as- 
 signed for it stamps it as purely, fortuitous.. ^ Of the 
 three forms which the Roman legislature successively 
 assumed, one, it is well, known — ^the Comitia Centuriata 
 —was exclusively taken to represent the State as em- 
 bodied for military operations. The Assembly of the 
 
 c c 2 
 
888 PDNISHMENT OF DEATH. chap. x. 
 
 Centuries, therefore, had all powers which may be 
 supposed to be properly lodged with a General com- 
 manding an army, and, among them, it had authority 
 to subject all offenders to the same correction to 
 which a soldier rendered himself liable by breaches 
 of discipline. The Comitia Centui-iata could there- 
 fore inflict capital punishment. Not so, however, 
 the Comitia Curiata or Comitia Tributa. They were 
 fettered on this point by the sacredness with which 
 the person of a Koman citizen, inside the walls of the 
 city, was invested by religion and law"; and, with 
 respect to the last of them, the Comitia Tributa, we 
 know for certain that it became a fixed principle that 
 the Assembly of the Tribes could at most impose a 
 fine. So long as criminal jurisdiction was confined 
 to the legislature, and so long as the assemblies of 
 the Centuries and of the Tribes continued to exercise 
 co-ordinate powers, it was easy to prefer indictments 
 for graver crimes before the legislative body which 
 dispensed the heavier penalties ; but then it happened 
 that She more democratic assembly, that of the Tribes, 
 almost entirely superseded the others, and became 
 the ordinary legislature of the later EepublicA Now 
 the decline of the Republic was exactly the period 
 during which the Qusestiones Perpetuas were esta- 
 blished, so that the statutes creating them were all 
 passed by a legislative assembly which itself could 
 not, at its ordinary sittings, punish a criminal with 
 
CHiP. X. PUNISHMENT OF DEATH. 389 
 
 death, v^t followed that the Permanent Judicial Com- 
 missions, holding a delegated authority, were cir-' 
 cumscribed in their attributes and capacities by the 
 limits of the powers residing with the body which 
 deputed them. They could do nothing which the 
 Assembly of the Tribes could not have done ; and, 
 as the Assembly could not sentence to death, the 
 Quaestiones were equally incompetent to award capi- 
 tal punishment. J The anomaly thus resulting was 
 not viewed in ancient times with anything like the 
 favour which it has attracted among the moderns, 
 and indeed, while it is questionable whether the 
 Roman character was at all the better for it, it is 
 certain that the Roman Constitution was a great deal 
 the worse. Like every other institution which has 
 accompanied the human race down the current of its 
 history, the pimishment of death is a necessity of 
 society, in certain stages of the civilising process. 
 There is a time when the attempt to dispense with it 
 baulks both of the two great instincts which lie at 
 the root of all penal law. Without it, the commu- 
 nity neither feels that it is sufficiently revenged 
 on the criminal, nor thinks that the example of 
 his punishment is adequate to deter others from 
 imitating him. ^The incompetence of the Roman 
 Tribunals to pass sentence of death led distinctly and 
 directly to those fidghtful Revolutionary intervals, 
 known as the Proscriptions, during which aU law was 
 
S90 KESIILTS TEACEABLB TO THE QU^STIONES. chap. x. 
 
 formally suspended simply because party violence 
 could find no other avenue to the vengeance for 
 which it was thirsting. No cause contributed so 
 powerfully to the' decay of political Capacity in the 
 Eoman people as this periodical abeyance of the 
 laws; and, when it had once been resorted to, we 
 need not hesitate to assert that the ruin of Roman 
 liberty became merely a question of time. K the 
 practice of the Tribunals had aflForded an adequate 
 vent for popular passion, ^the forms of judicial pro- 
 cedure would no doubt have been as flagrantly per- 
 verted as with us in the reigns of the later Stuarts,- 
 but national character would not have suffered as 
 deeply as it did, nor would the stability of Roman 
 institutions have been as seriously enfeebled. 
 
 I will mention two more singularities of the 
 Roman Criminal System which were produced by 
 the same theory of judicial authority. They are, 
 the extreme multiplicity of the Roman criminal tri- 
 bunals, and the capricious and anomalous classifica- 
 tion of crimes which characterised Roman penal 
 jurisprudence throughout its entire history Every 
 QucBstio, it has been said, whether Perpetual or 
 otherwise, had its origin in a distinct statute. From 
 the law which created it, it derived its authority; 
 it rigorously observed the limits which its charter 
 prescribed to it, anid touched no form of criminality 
 which that chartdp did not expressly define. As 
 
CHAP. I. RESULTS TEACEABLB TO THE QUiESTIONES. 391 
 
 then, the statutes which constituted the varioua 
 QuiBstiones were all called forth by particular emer . 
 gencies, each, of them being in fact passed to punish 
 a class of acts which the circumstances of the time 
 rendered particularly odious or particularly dan- 
 gerous, these enactments made not the slightest 
 reference to each other, and were connected by no 
 common principle. '^Twenty or thirty different cri- 
 minal laws were in existence together, with exactly 
 the same number of Quaestiones to administer them: 
 nor was any attempt made during the Republic to 
 fuse these distinct judicial bodies into one, or to give 
 symmetry to the provisions of the statutes which 
 appointed them and defined their duties. • The state 
 of the Koman criminal jurisdiction at this period., 
 exhibited some resemblances to the administration 
 of civU; remedies in England at the time when the 
 English Courts of Common Law had not as yet 
 introduced those fictitious averments into their writs 
 which enabled them to trespass on each other's 
 peculiar province. Like the Quaestiones, the Courts 
 of Queen's Bench, Common Pleas, and Exchequer, 
 were all theoretical emanations from a higher autho- 
 rity, and each entertained a special class of cases 
 supposed to be committed to it by the fountain of its 
 jurisdiction; but then the Koman Quaestiones were 
 many more than three in ntmiber, and it was infinitely 
 less easy to discriminate the acts which fell under 
 
302 TRIAL BY THE QU^STIONES. chat. X. 
 
 the cognisance of each Qusestio, ttan to distinguish 
 between the provinces of the three Courts in West- 
 minster Hall. The difficulty of drawing exact lines 
 between the spheres of the different Quaestiones made 
 the multiplicity of Eoman tribunals something more 
 than a mere inconvenience; for we read with astonish- 
 ment that when it was not immediately clear under 
 what general description a man's alleged offences 
 ranged themselves, he might be indicted at once or 
 successively befor? several different Commissions, on 
 the chance of some one of them declaring itself 
 competent to convict him; and, although conviction 
 by one Qu89stio ousted the jurisdiction of the rest, 
 acquittal by one of them could not be pleaded to an 
 accusation before another. This was directly con- 
 trary to the rule of the Eoman civU law; and we 
 may be sure that a people so sensitive as the Romans 
 to anomalies (or, as their significant phrase was, to 
 inelegancies) in jurisprudence, would not long have 
 tolerated it, had not the melancholy history of the 
 Quasstiones caused them to be regarded much more 
 as temporary weapons in the hands of factions than 
 as permanent institutions for the correction of crime. 
 The Emperors soon abolished this multiplicity and 
 conflict of jurisdiction; but it is remarkable that they 
 did not remove another singularity of the criminal 
 law which stands in close connection with the number 
 of the Courts, j The classifications of crimes wliich 
 
CHAP, X, CLASSIFICATIONS OP CRIMES. 893 
 
 are cojitained even in the Corpus Juris of Justinian 
 are remarkably capriciousi/ Each Quaestio had, in 
 fact, confined itself to the crimes committed to its 
 cognisance by its charter. These crimes, however, 
 ■were only classed together in the original statute 
 because they happened to call simultaneously for 
 castigation at the moment of passing it, /They had 
 not therefore anything necessarily in common ; but 
 the fact of their constituting the particular subject- 
 matter of trials before a particular Quaestio impressed 
 itself naturally on the public attention, and so in- 
 veterate did the association become between the 
 offences mentioned in the same statute that, even 
 when formal attempts were made by Sylla and by 
 the Emperor Augustus to consolidate the Eoman 
 criminal law, the legislator preserved the old group- 
 ing. v/The Statutes of Sylla and Augustus were the 
 foundation of the penal jurisprudence of the Empire, 
 and nothing can be more extraordinary than some of 
 the classifications which they bequeathed to it. I 
 need only give a single example in the fact that 
 perjury was always classed with cutting and wounding 
 and with poisoning^ no doubt because a law of Sylla, 
 the Lex Cornelia de Sicariis et Veneficis, had given 
 jurisdiction over all these three forms of crime to the 
 same Permanent Commission. It seems too that 
 this capricious grouping of crimes affected the ver- 
 nacular speech of the Komans. People naturally 
 
a04 LATEE LAW OF CRIMES. chap. x. 
 
 fell into the habit of designating all the offences enu- 
 merated in one law by the first name on the list, 
 which doubtless gave its style to the Law Court 
 deputed to try them aU. All the offences tried by 
 the QuEestio De Adulteriis would thus be called 
 Adultery. 
 
 I have dwelt on the history and characteristics of 
 the Eoman Qusestiones because the formation of a 
 crimiual jurisprudence is nowhere else so iustruc- 
 tively exemplified. The last Quaestiones were added 
 by the Emperor Augustus, and from that time the 
 Romans may be said to have had a tolerably com- 
 plete criminal law. Concurrently with its growth, 
 the analogous process had gone on, which I have 
 called the conversion of Wrongs into Crimes, for. 
 though the Roman legislature did not extinguish the 
 civil remedy for the more heinous offences, it offered 
 the sufferer a redress which he was sure to prefer. 
 x^StUl, even after Augustus had completed his legis- 
 lation, several offences continued to be regarded as 
 Wrongs, which modern societies look upon exclu- 
 sively as crimes ; nor did they become criminally 
 punishable till some late but uncertain date, at 
 which the law began to take notice of a new de- 
 scription of offences called in the Digest crimina 
 extraordinaria. J These were doubtless a class of acts 
 which the theory of Roman jurisprudence treated 
 merely as wrongs; but the growing sense of the 
 
OHAP, X. LATER LAW OF CBIMES. 395 
 
 majesty of society revolted from their entailing no- 
 thing worse on their perpetrator than the payrftent 
 of money damages, and accordingly the injured 
 person seems to have been permitted, if he pleased, 
 to pursue 'them as crimes extra ordinem, that is, by a 
 mode of redress departing in some respect or other 
 from the ordinary procedure. From the period at 
 which these crimina extraordinaria were first recog- 
 nised, the list of crimes in the Koman State must 
 have 'been as long as in any community of the 
 modern world. 
 
 It is unnecessary to describe with any minuteness 
 the mode of administering criminal justice under the 
 Koman Empire, but it is to be noted that both its 
 ■theory and practice have had powerful effect on 
 modern' society. The Emperors did not immediately 
 abolish the Quaestiones, and at first they committed 
 an extensive criminal jurisdiction to the Senate, in 
 which, however servile it might show itself in fact, 
 the Emperor was no more nominally than a Senator 
 like the rest. But some sort of collateral crimiUal 
 jurisdiction had been claimed by the Prince from the 
 first ; and this, as recollections of the free common- 
 wealth decayed, tended steadily to gain at the ex- 
 pense of the old tribunals, v Gradually the punish- 
 ment of crimes was transferred to magistrates 
 directly nominated by the Emperor, and the pri- 
 vileges of the Senate passed to the Imperial Privy 
 
896 SOVEREIGN THE FOUNTAIN OF JUSTICE. chap, X. 
 
 Council which also became a Court of ultimate 
 criminal appeal. Under these influences the doc- 
 trine, familiar to the moderns, insensibly shaped 
 itself that the Sovereign is the fountain of all Justice 
 and the depositary of aU Grace. It was not so much 
 the fruit of increasing adulation and servility as of 
 the centralisation of the Empire which had by this 
 time perfected itself. >/rhe theory of criminal justice 
 had, in fact, worked round almost to the point from 
 which it started. It had begun in the belief that it 
 was the business of the collective community to 
 avenge its own wrongs by its own hand ; and it 
 ended in the doctrine that the chastisement of crimes 
 belonged in an especial manner to the Sovereign as 
 representative and mandatory of his people. The 
 new view differed from the old one chiefly in the air 
 of awfuluess and majesty which the guardianship of 
 justice appeared to throw around the person of the 
 Sovereign, 
 
 This later Roman view of the Sovereign's relation 
 to justice certainly assisted in saving modem societies 
 from the necessity of travelling through the series 
 of changes which I have illustrated by the history of 
 the Qusestiones. ^In the primitive law of almost aU 
 the races which have peopled Western Europe there 
 are vestiges of the archaic notion that the punish- 
 ment of crimes belongs to the general assembly of 
 freemen] and there are some States — Scotland is 
 
CHAP. X. MODERN HISTORY OF CRIMES. 397 
 
 said to be one of them — in which the parentage of 
 the existing judicature can be traced up to a Com- 
 mittee of the legislative body. But the development 
 of the criminal law was universally hastened by two 
 causes, the memory of the Roman Empire and the 
 influence of the Church. On the one hand, traditions 
 of the majesty of the Cajsars, perpetuated by the 
 temporary ascendency of the House of Charlemagne, 
 were surrounding Sovereigns with a prestige which a 
 mere barbarous chieftain could never otherwise have 
 acquired, and were communicating to the pettiest 
 feudal potentate the character of guardian of so- 
 ciety and representative of the State. On the other 
 hand, the Church, in its anxiety to put a curb on 
 sanguinary ferocity, sought about for authority to 
 punish the graver misdeeds, and found it in those 
 passages of Scripture which speak with approval of 
 the powers of punishment committed to the civil 
 magistrate. The New Testament was appealed to 
 as proving that secular rulers exist for the terror of 
 evil-doers ; the Old Testament, as laying down that 
 " whoso sheddeth man's blood, by man shall his blood 
 be shed." There can be no doubt, I imagine, that 
 modern ideas on the subject of crime are based upon 
 two assumptions contended for by the Church in the 
 Dark Ages — first, that each feudal ruler, in his de- 
 gree, might be assimilated to the Roman Magistrates 
 spoken of by Saiat Paul ; and next, that the offences 
 
898 DOCTRINE OF THE CHUKCH AS TO CRIMES. chap.x. 
 
 wliich lie "was to chastise were those selected for 
 prohibition in the Mosaic Commandments, or rather 
 Buch of them as the Church did not reserve to her 
 own cognisance. Heresy, supposed to be included 
 in the First and Second Commandments, Adulteiy, 
 and Perjury were ecclesiastical offenCeSj and the 
 Church only admitted the co-operatiom of the secular 
 arm for the purpose of inflicting severer punishment 
 in cases of extraordinary aggravation. At the same 
 time, she taught tha,t murder and robbery, with their 
 various modifications, were under the jurifidictiOn of 
 civil rulers, not as an accident of their position, but 
 by the express ordinance of God; 
 
 There is a passage in the writingfe of King Alfi-ed 
 (Kemble, ii. 209) which brings out into remarkable 
 clearness the struggle of the various ideas thdt pre- 
 vailed in his day as to the origin of criminal juris- 
 diction. It will be seen that Alfred attributes^ it 
 partly to the authority of the Church and partly 
 to that of the Witan, while* he expressly claims for 
 treason' against the lord the same immunity from 
 ordinary rules which the Roman Law of Majestas 
 had assigned to treason against the Caesar. "After 
 this it happened," he writes, "that many nations 
 received the faith of Christ, and >there were many 
 synods assembled throughout the earth, and among 
 the English race also after they had received the faith 
 of Christ, both of holy bishops and of their exalted 
 
8HAP. X. KING ALFRED ON CRIMINAL JURISDICTION. 399 
 
 Witan. They then ordained that, out of that mercy 
 which Christ had taught, secular lords, with their 
 leave, might without sin take for every misdeed the 
 hot in money which they ordained ; except in cases 
 of treason against a lord, to which they dared not 
 assign any mercy because Almighty God adjudged 
 none to them that despised Him, nor did Christ 
 adjudge any to them which sold Him to death ; and 
 He commanded that a lord should be loved like 
 Hirasolf." 
 
INDEX. 
 
 D I> 
 
INDEX. 
 
 ADOPriON 
 
 ADOPTION, fiction of, 130 
 — influence of the sacra gentUma 
 on the law of, 6, 7, 27 
 
 — in Hindoo law, 193 
 Adprehensio; or assumption of sove- 
 
 relgn power in a newly discovered 
 country, 249 
 .Slquitas, the term, 58. See j^oity 
 ^quns, the word, 59 
 Agnatic and Oognatic relationship, dif- 
 ference between, 59, 146 
 Agnation described, 147, 148 
 Agreement, Boman analysis of, 322 
 Agri vectigales, Boman practice of let- 
 ting out, 300 
 
 — limitrophi of the Bomans on the 
 
 hanks of the Bhine and Danube, 
 602 
 Alexander the Sixth, Pope, his Bull, 
 
 249 
 Al&ed, King, his remarks on criminal 
 
 jurisdiction, quoted, 398 
 Alienation of property, ancient diffi- 
 culties of, 271 
 
 — archaic ceremonies of, 272 
 Allodial property, of the ancient Ger- 
 mans, 228, 281 
 
 America, tTnited States of. Declaration 
 of Independence of, 95 
 
 Anglo-Saxons, character of their King- 
 ship, 108 
 
 — their law of succession, 280 
 
 — their penal law, 370, 374, 379 
 Archon of Athens, the of&ce of the, 10 
 Aristocracies, origin of the rule of, 10 
 
 — those of Greece, Italy, and Asia 
 
 Mnor, 10 
 
 — difference between those of the East 
 
 and West, 11 
 
 — aristocracies the depositaries and ad- 
 
 jninistrators of the law, 11, 12 
 
 BUEQirNDtANS 
 
 Aristocracies, importance of judicial, be- 
 fore the invention of writing, 12 
 
 — foundation of aristocracies, 132 
 
 Aristotle, his "Treatise on Bhetoric," 
 referred to, 75 
 
 Assignees in Bankruptcy, succession of, 
 180 
 
 Athenian wills, 196 
 
 Athens, primitive penal law of, 382 
 
 Augustus, the Emperor, his alterations 
 in the Boman law, 41, 42 
 
 Austin's " Province of Jurisprudence 
 Determined " referred to, 7 
 
 BATLE referred to, 87 
 Benefices of the invading chiefs oi 
 the Boman Empire, 229 
 
 — transformation of the Benefice int(i 
 
 the hereditary Fief, 230 
 Bengalee Wills, 197 
 Bentham, his "Eragmeit on Govern- 
 ment," referred to, 7 
 
 — causes of his influence ii England, 78 
 
 — the Boman counterpart of Bentham- 
 
 ism, 79 
 
 — the theory of Jurisprudence, 117 
 
 — his eulogy of the Bull of Pope Alex- 
 
 ander the Sixth, 249 
 
 — Bentham and Austin's rules as to the 
 
 essentials of a contract, 323 
 Blackstone, Sir William, his theory of 
 the first principles of law, 114 
 
 — his justification for the exclusion ol 
 
 the half-blood, 152 
 
 — his theory of the origin of property 
 
 quoted, 251 
 
 — his theory criticised, 253 
 Bonorum Fossessio of the Bomans, 211 
 Bracton, his Plagiarisms, 82 
 Burgundians, the, referred to 104 
 
 D T> B 
 
404 
 
 INDEX 
 
 C^SAR 
 
 CONTEACT 
 
 O^SAK, Julius, his contemplated ad 
 ditions to the Boman Statute Law, 42 
 Capet, Hugh, character of his soTe- 
 
 reignt^, 108 
 Capture in War, sources of the modem 
 International Law of, 246 
 
 — ancient Law of, 247 
 
 Caracalla, effect of his constitution in 
 
 enlarging the Fatria Potestas, 144 
 Casuists, the, 3S0 
 
 — comparison of their system with that 
 
 of Grotius and his school, 351 
 
 — origin of Casuistry, S51 
 
 — hlow struck at Casuistry by Pascal, 
 
 352 
 
 Cessio in Jure of Property, in Boman 
 and in English Law, S89 
 
 Cestui que Trust, special proprietorship 
 created for the, 294 
 
 Chancellor, the Lord, compared with a 
 Boman Prsetor, 64, 65 
 
 Chancery, Court of, in England, re- 
 marks on the, 44 
 
 — origin of its system, 44, 45 
 Charlemagne, his claim to univeral do- 
 minion, 104 
 
 — his distribution of Benefices, 229 
 Children, disinherison of, under the 
 
 Bomans, 215 
 
 China, cause of the arrest of progress 
 in, 25 
 
 Churches, Eastern and Western, con- 
 clusion of the East on theological 
 subjects accepted by the West with- 
 out dispute or review, 356 
 
 — problems of the Western Church, 357 
 Cicero referred to, 61 
 
 — his allusions to the ancient Boman 
 
 Sacra, 193 
 Code Napolion, restraints imposed by it 
 
 on the testamentary power, 176 
 Codes, Ancient, 1 
 
 — sources of knowledge afforded by the 
 
 Greek Homeric poems, 2 
 
 — Themistes, 4 
 
 — Hindoo Laws of Menu, 6 
 
 — difference between Ca?e-law and 
 
 Code-law, 14 
 
 — era of Codes, 14 
 
 — the Twelve Tables, 1, 2, 14 
 
 — the Codes of Solon and Draco, 14 
 
 — importance of Codes to ancient so- 
 
 cieties, 16-19 
 Co-emption, or higher form of civil mar- 
 riage of the anc>e£t Bomans, 1S4 
 
 Cognatic relationship described, 146, 
 
 147 
 Co-heirs, rights and duties of, 181 
 
 — rights of, under the Boman Law, 227 
 Coloni of the Bomans, 231 
 
 — origin and situation of the, 800 
 Comitia Calata, ancient Boman execu- 
 tion of Wills in the, 199 
 
 ■,— end of the, 203 
 
 Comitia Centuriata, power of the, 387 
 
 — Curiata, powers of the, 318 
 
 — Tributa, powers of the, 388 
 Commentaries of the Boman lawyers, 3a 
 Common law of England, formerly an 
 
 unwritten law, 13 
 
 — difference between Case-law and 
 
 Code-law, 14 
 
 — Case-law and its anomalies, 31 
 
 — similarity between English Case-law 
 
 and the Besponsa Prudentum of the 
 Bomans, 33 
 Confarreation, or religions marriage of 
 
 the ancient Bomans, 154 
 Constantine, the Emperor, his improve- 
 ments in the Law, 42 
 
 — his modification of the Patria Po- 
 
 testas, 143 
 Contract, movement of societies irom 
 Status to, 170 
 
 — early history of, 304 
 
 — Contract and Political Economy, 305 
 
 — Bousseau's doctrine of an original 
 
 Social Contract, 308, 309 
 
 — Montesquieu's apologue of the Trog- 
 
 lodytes, 311 
 
 — early notions of Contract, 312 
 
 — Boman Contracts, 314 
 
 — specialising process in ancient law, 
 
 316 
 
 — historical stlliance between Contracts 
 
 and Conveyances, 317 
 
 — changes in the Nezum, 318 
 
 — Executory Contracts of Sale, 321 
 
 — primitive association of Conveyanoea 
 
 and Contracts, 321 
 
 — ancient and modem doctrine of Con- 
 
 tracts, 323 
 
 — the Boman Obligation, 323 
 
 — Boman classification of Contracts, 
 
 325 
 
 — the Verbal Contract, 327 
 
 — the Literal or Written Contract, 330 
 
 — the Beal Contract, 331 
 
 — Consensual Contracts, 332 
 
 — changes in Contract law, 337 
 
INDEX. 
 
 405 
 
 CONTBACT 
 
 Oontiact, history of the progress of Con- 
 tract law, 338 
 
 — Quasi-Contracts, 343 
 
 — Contract law and Kefs, 365 
 Conveyances, relation of Wills to, under 
 
 the Boman Law, 204 
 
 — consequence of this relation, 206 
 
 — remedies, 207 
 
 — historical alliance between Contracts 
 
 and Conveyances, 317 
 Uo-ownerehip of property, amongst the 
 Hindoos, 260, 261 
 
 — regarded by the Eoman Law as ex- 
 
 ceptional and momentary, 261 
 Corporations aggregate, 187 
 
 — sole, leading atmbute of, 187 
 
 " Corpus Juris Civilis " of Justinian, 68 
 
 — resorted to by English Chancery 
 
 judges, 44 
 Creation, Greek philosophical explana- 
 tion of the fabric of, 55 
 Creditors, cause of the extravagant 
 
 powers given to, by ancient laws, 
 
 321 
 Crimes and Wrongs. See Delict and 
 
 Crime 
 Croatia, co-ownership of the villagers of, 
 
 267 
 Curatores of male Orphans under the 
 
 Eoman Law, 161 
 Curse, inherited, Greek notion of an, 
 
 127 
 Customary Law, 5 
 
 — Homeric terms for customs, 5 
 
 — origin of customary law, 9 
 
 — epoch of customary law and its cus- 
 
 tody by a privileged order, 13 
 Cyclops, Homer's account of, quoted, 
 124 
 
 DEATH, disappearance of, from the 
 penal system of republican Eome, 
 387 
 
 — causes for this, 387, 388 
 
 — death punishment a necessity in cer- 
 
 tain stages of society, 389 
 Debtors, cause of the severity of ancient 
 
 laws against, 321 
 Decretals, forged, motives of the author 
 
 of the, 82 
 Delict and Crime, early history of, 367 
 
 — Penal law in ancient codes, 367 
 
 — Crimes and Wrongs, crimina and 
 
 delicia, 370 
 
 ELPHINSTONB 
 
 Delict and Crime, Furtum or Theft ol 
 the Eoman Law, 370, 379 
 
 — Wrongs and Sins both known 'to pri- 
 
 mitive jurisprudence, 371 
 
 — difference between the ancient and 
 
 modern conception of Crime, 373 
 
 — the Eoman Legis Actio Sacramenti, 
 
 375 
 
 — Homer's description of an ancient 
 
 law-suit, 377 
 
 — primitive penal law of Athens, 382 
 
 — old Eoman criminal jurisprudence, 
 
 382 
 
 — the Qusestiones, 382, 383 
 
 — Qusestores Parricidii, 383 
 
 — Duumviri Perduellionis, 383 
 
 — the first true Eoman Criminal Law, 
 
 384 _ 
 
 — the primitive history of criminal law, 
 
 385 
 
 — extreme multiplicity of Eoman cri- 
 
 minal tribunals, 390 
 
 — capricious classification of crimes, 
 
 392, 393 
 
 — statutes of Sylla and Augustus, 393 
 
 — later law of crimes, 394 
 
 — crimina extraordinaria, 394 
 
 — mode of administering criminal jus- 
 
 tice under the Eoman Empire, 395 
 
 — modern history of crimes, 397 
 
 — King Alfred on Criminal jurisdiction 
 
 quoted, 398 
 
 Discovery, considered as a mode of ac- 
 quiring dominion, 248 
 
 Dominion, its nature, limitation, and 
 mode of securing it, 102 
 
 — of the Eomans, 317 
 
 Dower, the principle of, engrafted on the 
 Customary Law of Western Europe, 
 224 
 
 Diaco, rudeness of the Code of, 16 
 
 — penal laws of, 367 
 Dumoulin referred to, 86 
 
 Dumont's " Sophismes Anarchiques," 
 
 remarks, 92 
 DuTunviri Perduellionis, the, 383 
 
 EDICT of the Eoman Prater, -it, 57, 
 63, 64, 66, 209, 293 
 Egypt, Modern, rule of succession to thd 
 
 throne of, 242 
 Eldon, Lord, his Chancellorship, 69 
 Elphinstone's "History of India" quoted, 
 263 
 
406 
 
 INDEX, 
 
 EMPHTTECSI3 
 
 FEAlfCE 
 
 Emphyteusis, system of, 299 ei seq. 
 — rights of the Emphyteuta, 301 
 
 Jimptor Familias. See Familia Emptor 
 
 England, the Land-law of, at the present 
 time, 226 
 
 English Common Law, formerly an un- 
 written law, 13 
 
 — law, hesitation of our Courts in de- 
 
 claring principles of, 40 
 Equality of men, doctrine of the, 92 
 
 — as understood by the Eoman juris- 
 
 consults, 93 
 
 — its meaning in its modern dress, 93 
 
 — ordinance of Louis Hutin quoted, 94 
 
 — declaration of American Indepen- 
 
 dence, 9S 
 
 — assumption of the Grrotian school, 
 
 101 
 Equity, early history of, 25 
 
 — equity considered as an agent by 
 
 which the adaptation of law to so- 
 cial wants is carried on, 28 
 
 — meaning of the term equity, 28 
 
 — difierence between equity and legal 
 
 fictions, 28 
 
 between equity and legislation, 
 
 28, 29 
 
 — remarks on the law of nature and 
 
 equity, 44 et seq. 
 
 — the English Court of Chancery, 44 
 
 — origin of its system, 44, 45 
 
 — the equity of Home, 45 
 
 — origin and history of the term 
 
 " Equity," 58 
 
 — the terms ^quitas and 'I(r^T»js, 58 
 
 — picture presented to the Boman mind 
 
 by the word " Equity," 60 
 
 — the English Chancellor compared 
 
 with t£e Boman Fraetor, 65 
 
 — exhaustion of the power of growth 
 
 in Eoman Equity, 68 
 
 — features common to English and 
 
 Eoman Equity, 68 et seq. 
 
 — distinction between Law and Equity 
 
 in their conceptions of proprietary 
 right, 293 
 Ethics, obligations of, to the Boman 
 Law, 347 
 
 — the Casuists', 350 
 
 — Grotius and his school, 350 
 
 I^AMILIA, meaning of, in the lan- 
 guage of the ancient Boman Law, 
 208 
 
 Eamilise Emptor, office of ttie, 205 
 
 — rights and duties of the, 206 
 
 — remarks on the expression Familias 
 
 Emptor, 208 
 Family, the, of Archaic society, 133 
 
 — disintegration of the Family, 169 
 
 — regarded as a corporation, 184 
 
 — (Organisations of elementary commtt- 
 nities, 234 
 
 — Highland chieftainship, 234 
 
 — Families, not Individuals, known to 
 
 ancient law. 258 
 
 — Indian, Eiissian, Croatian, and Scla- 
 
 Tonian laws respecting the property 
 of Families, 260, 269 
 Feudal view of the ownership of pro- 
 perty, 295 
 Feudal services, 303 
 Feudalism, its connection with territo- 
 rial sovereignty, 107 
 
 — feudal organisation, 107, 108 
 
 — the modern WiE an accidental fruit 
 
 of, 224, 225 
 
 — Feudalism and Contract law, 365 
 Fictions, legal, 21, 23 
 
 — early history of, 23 
 
 — meaning oifictio in old Boman Law, 
 
 25 
 
 — object of the j?cito)!es, 26 
 
 — instances cited from the English and 
 
 Eoman Law, 26 
 
 — their former importance and modern 
 
 uselessness, 27, 28 
 
 — difference between legal fictions and 
 
 equity, 28 
 
 — and between legal fictions and legis- 
 
 lation, 29 
 
 — instances of legal fictions, 31 
 
 — Case-law and its anomalies, 31 
 Fidei-Commissa, or Bequests in Trust, 
 
 of the Eoman Law, 223 
 Fiefs, hereditary, gradual transforma- 
 tion of Benefices into, 230 
 
 — original tenures, 230, 231 
 
 — laws of fiefs, 365 
 
 Foreigners, causes of immigration of, 
 into ancient Bome, 46, 47 
 
 — exclusion of, under the early Boman 
 
 republic, 48 
 France, lawyers and judicial science of, 
 . 80 et seq. 
 
 — effects of the alliance between the 
 
 lawyers and the kings, on the for- 
 tunes of, 80, 81 
 France, difference between the Pays da 
 
INDEX. 
 
 407 
 
 TBANOB 
 
 HINDOOS 
 
 Droit /joutumier and the Pays du 
 Droit Eerit, 84 
 France, pre-eminence given inlVance to 
 Katucal Law, 8S 
 
 — Eousseau, 87 
 
 — the BeTolution, 89 
 Franks, the, referred to, lOi 
 
 — Eoman institution of the Patna Po- 
 testas not known to the, 143 
 
 Freewill and Necessity, question of, un- 
 known to the Greeks, 304 
 Fui-tum, or Theft, of the Koman Law, 370 
 
 aAIUS referred to, 52 
 — his description of the institution 
 of Ihe Patria Fotestas, 133 
 
 — his information respecting the Per- 
 
 petual Tutelage of women, 153 
 
 — on the duplication of proprietary 
 
 right, referred to, 295 
 Galatee, the Patria Potestas of the, 136 
 Gens, or House, of the Komans compared 
 
 with the Village Community of India, 
 
 264 
 Gentiles, Eoman, their rights in cases of 
 
 Intestate Succession, 221 
 German law of Succession, 280 
 Germans, Wills of the ancient, 196, 198 
 
 — penal laws of the ancient, 367 
 
 — Patria Potestas of the, 143 
 
 — primitive property of, 198 
 
 — the ancient law of allodial property, 
 
 228 
 " Germany " of Tacitus, its value, 120 
 
 — suspicions as to its fidelity, 121 
 
 — allodial property of, 281 
 Greece, aristocracies of, 10 
 
 Greek theory of a Law of Nature, 52, 53 
 Greeks, equality of laws on which they 
 prided themselves, 58 
 
 — their tendency to confound law and 
 
 fict, 78 
 
 — their notion of an inherited curse, 127 
 
 — assistance afforded by, in the forma- 
 
 tion of the Boman codes, 15 
 
 — limited Patria Potestas of the, 136, 
 
 137 
 
 — metaphysics of the, 300 
 
 — their want of capacity for producing 
 
 a philosophy of law, 354 
 
 Grote, Mr, his "History of Greece," re- 
 ferred to, 5, 9 
 
 GrTotius, Hugo, and his successors, on 
 International law, 96 
 
 Qrotius, his doctrines, 100 
 
 — success of his treatise " De Jure Belli 
 
 _et Paris," 111 ^ 
 
 — his theory of a natural state and of 
 
 a system of principles congenial to 
 it, 114 
 
 — his moral philosophy and that of his 
 
 school, 350 
 
 — comparison of his system with that 
 
 of the Casuists, 351 
 Ghiardianship, Perpetual, of Women 
 under the Boman Law, 153 
 
 — amongst the Hindoos, 153 
 
 -^ amongst the Scandinavians, 153 
 
 HiEEEDITAS, or Inheritance, defini- 
 tion, 181 
 Hseres or Heir, his rights and duties, 
 
 181, 190, 227 
 Half-blood relationship, 151 
 
 — the rule according to tne customs of 
 
 Normandy, 151 
 Haus-Gesetze of Germany, 232 
 Heirs, rights of, under the Boman Law, 
 
 131, 190, 227 
 Highland chieftainship hereditary, 234 
 
 — form of Primogeniture, 240 
 Hindoo laws of Menu, 6, 17, 18 
 — ' Customary Law, 7 
 
 — law of Succession, 280 
 
 — difference between Inheritances and 
 
 Acquisitions, 281 
 
 — Perpetual Tutelage of Women 
 
 amongst the !ffindoos, 153 
 
 — right amongst the Hindoos, to 
 
 inherit a dead man's property, 191 
 
 — the Hindoo sacra, 192 
 
 — the Suttee, 193 
 
 — the place of Wills amoagst the Hin- 
 
 doos occupied by Adoptions, 193 
 
 — rights of the first-born son amongst 
 
 the Hindoos, 228 
 
 — primogeniture of the Hindoos in 
 
 public ofiee or political power, bul 
 
 not in property, 233 
 Hindoos, form of Ownership of Property 
 amongst the, — the Village Commu- 
 nity, 260 
 
 — Co-ownership, 261 
 
 — simplest form of the Village Commu> 
 
 nit;^, 262, 965 
 
 — Acquisitions of Property and Inhe- 
 
 xitances,Hindoo distinction between, 
 281 
 
408 
 
 IKBEX. 
 
 HOBBES 
 Hobbes, his theory of the origjn of law, 
 
 114 
 Homei, his account of the Cyclops, 
 
 quoted, 124 
 
 — his description of an ancient law-suit, 
 
 8" . ,-, 
 
 Homeric poems, rudimentary jural ideas 
 
 afforded by the, 2, 3 
 
 — Themis and Themistes, 4, 5 
 
 — Homericwords for Custom, 5 
 
 FDIA, heroic and aristocratic eras of 
 the races of, 10 
 
 — laws of Menu, 6, 17, 18 
 
 — Customary law of, 7 
 
 — stage beyond which India has not 
 
 passed, 23 
 Inheritance a form of universal succes- 
 sion, 177 
 
 — Roman definition of an Inheritance, 
 
 181 
 
 — old Eoman Law of, 189 
 
 — and Acquisition, Hindoo differences 
 
 between, 281 
 Injunction of the Court of Chancery, 
 
 293 
 Institutes of the Eoman lawyers, 35_ 
 International Law, modem confusion 
 
 between it and Jus Gentium, 53 
 
 — function of Uie Law of Nature in 
 
 giving birth to modern Interna- 
 tional Law, 96 
 
 — postulates forming the foundation of 
 
 International Law, 96 
 
 — Grotius and his successors, 96 
 
 — dominion, 102 
 
 — territorial sovereignty, 103 
 
 — the ante-Grotian system of the Law 
 
 of Nations, 109 
 
 — preparation of the public mind for 
 
 the reception of the Qrotian system, 
 110 
 
 — success of the treatise " De Jure 
 
 Belli et Paois," 111 
 
 — points of junction between modern 
 
 public law and territorial sove- 
 reignty, 112 
 
 — sources of the mode in case of Cap- 
 
 ture in "War, 46 
 Intestacy. See Succession, Intestate 
 'IffiJTijs, the Greek principle of, 58, 61 
 Italy, aristocracies of, 10 
 
 — codes of, 17 
 
 — instability of spciety in ancient, 47 
 
 JUS NATUBAll 
 
 Italy, territorial sovereignty of princee 
 of, 108 
 
 JEWS, Wills of the, 197 
 JuUanus, Salvius, the Praetor, his 
 Edict, 64 
 
 — effect of his measures on the Praeto- 
 
 rian Edicts, 66 
 Jurisconsults, early Soman, 37 — 39 
 
 — later, 41 
 
 — Natural Law of the, 76 
 Jurisprudence, golden age of Roman, 55 
 Jurists, Eoman, period of, 66, 68 
 
 Jus Gentium, origin of, 47 et seg. 
 
 — circumstances of the origin of, 50 
 
 — how regarded by a Eoman, 51 
 
 — and by a modern lawyer, 51 
 
 — difference between the Jus Gentium 
 
 and the Jus Naturale, 52, 53 
 
 — point of contact between the old Jus 
 
 Gentium and the Jus Naturale, 58 
 
 — difference between the Jus Gentium 
 
 and the Quiritarian Law, 59 
 
 — influence of the, on modem civilisa- 
 
 tion, 103 
 Jus Feciale, or International Law of the 
 
 Romans, 53 
 Jus Naturale, or Law of Nature, 52 
 
 — difference between the Jus Naturale 
 
 and the Jus Gentium, 53 
 
 — Greek conceptions of Nature and her 
 
 law, 53 
 
 — point of contact between the old Jus 
 
 Gentium and the Law of Nature, 58 
 
 — modem history of the Law of Na- 
 
 ture, 73 
 
 — Natural law of the Roman Juris- 
 
 consults, 76 
 
 — ancient counterpart of Benthamism, 
 
 79 
 
 — vastness of the influence of the Law 
 
 of Nature on modem society, 80 
 
 — history of the Law of Nature, 80 et 
 
 seq. 
 
 — pre-eminence given to Natural law in 
 
 Prance, 85 
 
 — its condition at the middle of the 
 
 18th century, 86 
 
 — Rousseau, 87 
 
 — the Preneh Revolution, 89 
 
 — equality of men, 92 
 
 — function of the Law of Nature in 
 
 ^ving Mrth to modern Intema- 
 I tional Law, 96 
 
INDEX. 
 
 409 
 
 JUS NATHSALB 
 
 Tua Natuiale, sources of the Modem In- ] 
 
 temationalLaw of Capture in War, 246 
 Justinian's " Institutes" quoted, 46 
 
 — referred to, 67 
 
 — "Pandects" of, 67 
 
 — " Corpus Juris Civilis" of, 68 
 
 — his modifications of the Fatria Po- 
 
 testas, 143 
 
 — his scale of Intestate Succession, 219 
 
 T71NGS, origin of the doctrine of the 
 JV divine right of, 346 
 Kingship, heroic, origin of, 9 
 
 LACEDEMONIAN kings, authority 
 of the, 10 
 
 Land-law of England at the present 
 day, 226 
 
 Land and goods, English distinction 
 between, 283 
 
 Latifundia, Boman mode of cultivating 
 the, 299 
 
 Law, social necessities and opinions al- 
 ways in advance of, 24 
 
 — agencies by which law is brought 
 
 into harmony with society, 25 
 
 — ancient, 113 
 
 — theories of a natural state and of a 
 
 system congenial to it, 118 
 
 — Grotius, Blackstone, Locke, and 
 
 Hobbes, 114 
 
 — theoiy of Montesquieu, 115 
 
 — Bentham, 117 
 
 — dissatisfaction with existing theories, 
 
 118 
 
 — proper mode of inquiry, 119 
 
 — the Patriarchical theory, 122 
 
 — fiction of Adoption, .130 
 
 — the archaic Family, 133 
 
 — the Fatria Fotestas of the Eomans, 
 
 138 
 
 — agnatic and cognatic relationships, 
 
 146 
 
 — Guardianship of Women, 153 
 
 — ancient Boman Marriage, 154 
 
 — Master and Slave, 162 
 Leges Earbarorum, 297 
 Leges Comelise of Sylla, 41, 42 
 Leges Juliae of Augustus, 41, 42 
 Legis Actio Sacramenti of the Bomans 
 
 described, 376 
 Legislation, era of, 26 
 
 — considered as an agent by which the 
 
 NATIONS 
 
 adaptation of law to the social 
 wants is carried on, 29 
 
 Legislation, di£ference between it and 
 legal fictions, 28, 29 
 
 Les Galpumia de Bepetundis, the first 
 true Boman Criminal Law, 384 
 
 Lex Plsetoria, purport of the, 161 
 
 Lidi of the Germans, 231 
 
 Local Contiguity as the condition of 
 community in political functions, 132 
 
 Locke, John, referred to, 87 
 
 — his theory of the origin of law, 114 
 
 Lombards, referred to, 1 14 
 
 Louis Hutin, King of France, his ordi- 
 nance quoted, 94 
 
 TITAHOMETAN Law of Succession, 
 
 Majority and Minority, meaning of the 
 
 terms in Boman Law, 162 
 Mancipation, Boman, 60, 204, 27S, 
 
 317 
 
 — mode of giving the effect of Manci- 
 
 pation to a Tradition, 279 
 Manus of the Bomans, 317 
 Marriage, ancient Boman, 154 
 
 — later Boman, 155 
 Master and Slave, 162 
 
 — under the Bomans, 163 
 
 — in the United States, 163 
 Menu, Hindoo Laws of, 6, 17, 18 
 Merovingian kings of the Franks, 104 
 Metayers, the, of the south of Europe, 
 
 301 
 
 "Moniteur," the, during the period of 
 the French Bevolution, 92 
 
 Montesquieu's "Esprit des Lois," re- 
 marks on, 86 
 
 — his Theory of Jurisprudence, 116 
 
 — Apologue of Montesquieu concerning 
 
 the Troglodytes, in the "Lettres 
 Persanes," 311 
 Moral doctrines, early, 127 
 Mortgagor, special proprietorship cre- 
 atKl by the Court of Chancery for 
 the, 294 
 Moses, testamentary power not provided 
 for by the Laws of, 197 
 
 "VTAFLES, territorial sovereignty of 
 i\ the monarchs of, 108 
 Nations, Law of, 96 et seq. See Inter- 
 national Law and Jus Gentium 
 
410 
 
 INDEX. 
 
 NATURE 
 
 Niture and her La-w, Greek conceptions 
 of, 53 
 
 JS'cxum of the ancient Eomans, 48, 315 
 
 — changes in the, 318 
 
 Nonnandy, cuistoms of, referred to, 151 
 
 No'uoj, the word not known to the Ho- 
 meric poems, 6 
 
 Nuncupatio, of the Eomans, 205 
 
 OBLIGATIONS of the Eoman Law, 
 323 
 
 — rights and duties of, 324: 
 Ocoupatio, or Occupancy, of the Eoman 
 
 Law, a " natural mode of acquiring 
 property," 245, 250 
 
 — things which never had an owner, 245 
 
 — things which have not an owner, 245 
 
 — Capture in war, 246 
 
 — Discovery, 248 
 
 — objections to the popular theory of 
 
 Occupancy, 256 
 Ordinance of Louis Hutin, quoted, 94 
 Orphans, Guardianship of male, under 
 the Soman Law, 160 
 
 PACTES de Pamille of France, 232 
 Pascal, his ' Lettres Provinciales," 
 352 
 Paterfamilias in elementary communi- 
 ties, 234, 235 
 Patria Potestas, the, of the Eomans, 133 
 
 — of the Galatffl, 136 
 
 — of the Greeks, 136, 137 
 
 — causes which helped to mitigate the 
 
 stringency of the father's power 
 over the persons of his children, 141 
 
 — liabilities of the Paterfamilias, 145 
 
 — unity of person between the Pater- 
 
 familias and the Filiusfamilias, 145 
 
 — rights and duties of the Paterfami- 
 
 lias, 145, 146, 234, 235 
 
 — the Patria Potestas not a durable 
 
 institution, 146 
 Patriarchal theory of primeval juris- 
 prudence, 122 
 
 — chief points from Scriptural accounts, 
 
 123 
 
 — Hornet's account of the Cyclops, 124 
 Pays du Droit Ecrit and Pays du Droit 
 
 Coutumier, difference between the, 84 
 Peonlium, the, of the Ecmans, 142 
 
 — Castrense Peculinm, 142 
 
 — Quasi-oastrense Peculium, 142 
 
 PEIMOOENITUEB 
 
 Penal law in ancient codes, 367 
 Perjury, how punished by the andent 
 
 Eomans, 893 
 Persian monarchy, heroic and aristo- 
 cratic eras of the races composing 
 the, 11 
 Persians, the ancient, their veracity, 308 
 ^itris of the Greeks, meaning of the, 
 
 53 
 Plebeian Wills of the Eomans, 201 
 
 — legalised by, at the Twelve Tables, 
 
 202 
 
 — their influence on the civilisation of 
 
 the modem world, 203 
 Political ideas, early, 128 
 
 — foundation of aristocracies, 132 
 Political Economy and Contract, 305 
 Polygamy, its influence on Primogeni 
 
 ture, 243 
 Possessory interdicts of the Eoman Law, 
 
 291 
 Prsetor, origin of the office of, 62 
 
 — Edict of the, 41, 57, 63, 66 
 
 — the Eoman, compared with an Eng- 
 
 lish Chancellor, 64, 65 
 
 — restraints on the Praetor, 65 
 
 — the Praetor the chief equity judge as 
 
 well as the great common law ma- 
 gistrate, 67 
 Praetor Peregrinus, ofBce of the, 63 
 Praetorian Edict of the Eomans, 41, 57, 
 65,66 
 
 — the Edictum Perpetuum, 63 
 
 — that of Salvius Juliauus, 64, 66 
 
 — remedies given by the, 293 
 Praetorian Will, the, 209 
 
 — described, 210 
 
 Prescription of Property, history of, 
 
 284 et seq. 
 Primogeniture, changes in the Law of 
 
 Succession, caused by, 225 
 
 — almost destroyed by the authors of 
 
 the Erench code, 225, 226 
 
 — results of the French system, 226 
 
 — rights of the first-born son amongst 
 
 the Hindoos, 228 
 
 — early history of Primogeniture, 229 
 
 — Benefices, 229 
 
 — gradual transformation of Benefices 
 
 into hereditary Fiefs, 230 
 
 — the Pactes de Famille of France and 
 
 the Hauz-Gesetze of Germanj, 
 232 
 
 — causes of the flifiusion of Primogeni- 
 
 ture, 232 
 
INDEX. 
 
 411 
 
 IKIMOGENITOEB 
 
 Primogeniture in pubUe offices or poli- 
 tical power amongst the Hindoos, but 
 not in property, 233 
 
 ' — ancient forms of Primogeniture, 235 
 
 — why did Primogeniture gradually 
 
 supersede every other principle of 
 Succession? 235 
 
 — earlier and later Primogeniture, 257 
 
 — Hindoo rule of the eldest son and of 
 
 the eldest line also, 239 
 
 — Celtic form of Primogeniture, 240 
 
 — Mahometan form, 242 
 
 • — influence of polygamy on Primogeni- 
 ture, 243 
 Progress, causes of tne arrest of, of the 
 
 greater part of mankind, 77 
 Property, early history of, 244 
 ■>- " natural modes" of acquisition, 244 
 
 — Occupancy, 245 
 
 — Capture in War, 246 
 
 — rule of Discovery, 248 
 
 — history of the ori^n of property, 250 
 
 — Blackstone on the theory of Occu- 
 
 pancy as the origin of property, 261 
 
 — aphorism of Savigny on the origin of 
 
 property, 254 
 
 — objections to the popular theory of 
 
 Occupancy, 256 
 
 — Co-ownership amongst the Hindoos, 
 
 260 
 
 — the Gens, or House, of the Romans 
 
 compared with the Village Com- 
 munity of India, 264 
 
 — Russian village co-ownership, 266 
 
 — Croatian and Sclavonian Laws re- 
 
 specting the property of Families, 
 269 
 
 — ancient difficulties of Alienation, 271 
 
 — natural classification of property, 273 
 
 — ancient modes of transfer of pro- 
 
 perty, 276 
 
 — definition of the Ees Mancipi, 277 
 
 — tradition of property, 278 
 
 — distinction between Ees Mancipi, and 
 
 Bes nee Mancipi, 279 
 
 — Hindoo Law of Inheritances and 
 
 Acquisitions, 281, 282 
 
 — law of moveables and law of land, 
 
 according to the French codes, 
 283 
 
 — and in England, 283 
 
 — Usucapion, or Prescription, 284 
 
 — Cessio in Jure, or recovery, in a 
 
 Court of Law, of property sought 
 to be conveyed, 289 
 
 EI!S MANCIPI 
 
 Property, influence of Courts c f Law and 
 of their procedure upon Property, 290 
 
 — distinction between Propeifty and 
 
 Possession, 290 
 
 — and between Law and Equity in their 
 
 conceptions of proprietary right, 
 under the Eoman and English 
 Law, 293 
 
 — feudal view of Ownership, 295 
 
 — Eoman and barbarian law of Owner- 
 
 ship, 296 
 
 — Eoman system of Tenancy, 299 
 
 — the Coloni of the Eomans and the 
 
 Metayers of the South of Europe, 
 300, 301 
 
 — rights of the Emphyteuta, 301 
 
 — the Agri Limitrophi of the Ehine 
 
 and the Danube, 802 
 Proscriptions, Eoman, origin of the, 389 
 Pupilage or Wardship in modem juris- 
 prudence, 162 
 
 — compared with the Guardianship of 
 
 Orphajis under the Eoman Law, 
 162 
 
 QUASI-CONTEAOT, 343 
 — meaning of, in Eoman Law, 344 
 Quasi, meaning of the word, in Eoman 
 
 Law, 344 
 Qusestiones Perpetuse of the Eomans, 
 384 
 
 — theory of the Quaestioues, 386 
 
 — results traceable to the Qusestiones, 
 
 391 
 
 Qusestores Parricidii of the ancient Eo- 
 mans, 883 
 
 Querela Inofficiosi Testamenti of the old 
 Eoman Law, 215 
 
 Quiritarian Law, the, 48 
 
 — principles of the, 59 
 
 — difference between it and the Jus 
 
 Gentium, 59 
 
 EECOVEEIES, collusive, of property 
 in the Eoman and English Law, 
 289 
 Eegency, ftarm of, according to the 
 French custom regulating l£e succes- 
 sion to the throne, 240 
 Beipus, the, of Germany, 281 
 Ees Mancipi and Ees nee Mancipi 274, 
 
 279 
 — definition of the Ees Mancipi, 277 
 
412 
 
 iNDmz. 
 
 EES NULIIUS 
 
 Ees aallius of the Eoman Law, 246 
 Eesponsa Prudentium of the Eomans 
 descrihed, 33 
 
 — Bimilarity between them and English 
 
 Case-law, 33 
 
 — decline and extinction of the Re- 
 
 sponses, 40, 41 
 Esvolntion, French, effects of the theory 
 
 of the state of Nature on the, 91 
 Eex Sacrorum, or Eex Sacrifictilus, office 
 
 of the, 10, 62 
 Roman Law, 1 
 / — the Twelve Tables, 1, 2, 14, S3 
 
 — influence of the sacra on the Law of 
 
 Adoption and of Wills, 6, 7 
 
 — class of codes to which the Roman 
 
 code belongs, IS 
 ^ — probable assistance afforded by 
 the Greeks, Id 
 , — meaning of fictio, 25 
 
 — instances otfictiones cited, 26 
 
 ^ — the Responsa Prudentium described, 
 
 33 _ 
 . — judicial functions of the Magistrates 
 of Republican Rome, 36 
 ^ — reasons why the Roman Law was not 
 popularised, 36 
 
 — sources of the characteristic eicel- 
 
 lence of the Roman Law, 38 
 . — decline and extinction of the Re- 
 "^ spouses. 40, 41 
 
 '' — the Praetorian Edict, 41, 57, 63, 66 
 / — the Leges Cornelise, 41, 42 
 y — later jurisconsults, 41 
 / — remarks on the Statute Law of the 
 Romans, 41-43 
 /■ — and on the Equity of the Romans, 
 44, 43 
 
 — golden age of Eomaa jurisprudence, 
 
 55 
 /■ — Roman Equity, 58, 67 
 
 •— features common to both English and 
 
 Roman Equity, 68 et seq. 
 / — International Law largely indebted 
 
 to Roman Law, 97 
 
 — the Patria Potestas of the Roman 
 
 Law, 137 ei »«J. 
 
 — Agnatic and Cognatie Relationship, 
 
 146 
 
 — Perpetual Tutelage of Women, 153 
 
 — Roman Marriage, 154, 155 
 
 — Guardianship of male Orphans, 160 
 
 — Law of Persons — Master and Slave, 
 
 162 
 
 — Testamentary Law. 1 72 et seq. 
 
 EOMANS 
 
 Roman Law, WiUs anciently ezaented 
 in the Comitia Calata, 199, 201 
 
 — ancient Roman Law of Intestate Suc- 
 cession, 199 
 
 — Roman Wills described, 201 
 ^ — the Mancipation, 204 
 
 — the Nuncupatio, 205 
 .^~- the Praetorian Will, 209 
 
 — first appearance of Sealing in the 
 ^ history of jurisprudence as a mode 
 
 of autiientication, 210 
 
 — Querela Inofficiosi Testamenti, 216 
 /■^- Disinherison of Cihildren under, 215 
 
 — Intestate Succession under, 218 
 
 ^ — Fidei-Commissa,or bequests in trusts, 
 223 
 
 — rights of Co-heirs, 227 
 
 — Occupancy, 245 
 
 — Roman distinction between the Law 
 ^ of Persons and the Law of Things, 
 
 258 
 ^ — influence of Roman classifications, 
 259 
 
 — Co-ownership of property regarded 
 
 by the mature Roman Law as ex- 
 ceptional and momentary, 261 
 
 — the Gens of the Romans compared 
 / with an Indian Village Commu- 
 nity, 264 
 
 /<— Res Mancipi, and Res nee Maneipi, 
 
 274, 277 
 /■ — Mancipation, 278 
 
 — Usucapion, or Prescription, 284 
 y — the Cessio in Jure, 289 
 
 - distinction between Property and 
 Possession, 290 
 
 "t — Roman and Barbarian Law, 296 
 
 — Roman Contracts, 314 e< seq. 
 . / — the Four Contracts, 325 
 
 — connection between Theology and 
 
 Roman Law, 355 
 ■p- causes of improvement in Eoman 
 
 Law, 361 
 ■^- Eoman Law in the Eastern Empire, 
 
 363 
 ^— Civil Wrongs of the Roman Law, 370 
 
 — the Legis Actio Sacramenti, 375 
 
 — old Roman Criminal Jurisprudence, 
 
 382 
 
 — extreme multiplicity of Roman cri- 
 
 minal tribunals, 390 
 
 — results traceable to the Quffistiones, 
 
 391 
 Romans, causes of the rapid progress of 
 the Stoical philosophy amongst the, 55 
 
INDEX. 
 
 41S 
 
 BOHAKS 
 
 ^Jlomans, their progress in legal improve- 
 ment, 57 
 ^£ome, immigration of foreigners into, 
 46, 47 
 
 — exclusion of, under the early Kepub- 
 
 lic, 46 
 
 — See of, origin of the tendency to 
 
 attribute secular superiority to the, 
 108 
 
 — decline of ecclesiastical influence in 
 
 international questions, 110 
 
 — early political ideas of, 130 
 Kousseau, J. J., influence of his writings, 
 
 87 _ 
 
 — his doctrine of an original Social 
 
 Compact, 308, 309 
 Russian villages. Co-ownership of the 
 occupiers of, 266 
 
 SACEA, or Family Kites, of the 
 Bomans, 6, 7, 27, 191, 192 
 
 — of the Hindoos, 192 
 Sacramental Action of the Ancient Bo- 
 mans, 48 
 
 Salic Law, origin of the, 157 
 Savigny, on Possession and Property, 
 290, 291 
 
 — his aphorism on the Origin of Pro- 
 
 perty, 254 
 
 Scsvola, Q. Mucins, his Manual of the 
 Civil Law, 40, 41 
 
 Scandinavian nations, their laws respect- 
 ing the Perpetual Tutelage of Women, 
 153, 159 
 
 Sclavonian laws respecting the property 
 of families, 268 
 
 Sealing, first appearance of, in jurispru- 
 dence, as a mode of authentication, 
 210 
 
 Sin, mortal and venial, casuistical dis- 
 tinction between, 351 
 
 Sins known to primitive jurisprudence, 
 371 
 
 Slavery, ancient, 162 
 
 — under the Bomans, 163 
 
 — in the United States of America, 163 
 Socage, English law of, 232 
 
 Social Compact, Bousseau's doctrine of 
 an original, 308, 309, 345 
 
 — Dr. Whewell quoted, 347 
 Societies, stationary and progressive, 22 
 
 — difference between stationary and 
 
 progressive societies, 23 
 
 — agencies by which Law is brought 
 
 STOIC PHILOSOPHT 
 
 into harmony withProgressive So- 
 cieties, 25 
 Societies, perils of early, 75 
 
 — primitive, 128 
 
 — early moral doctrines, 127 
 
 — early political ideas, 1 28 
 
 — fiction of Adoption, 130 
 
 — foundation of aristocracies, 132 
 — ; principle of Local Contiguity, 132 
 
 — the ancient Family, 133 
 
 — the Patria Potestas, 133 
 
 — agnatic and cognatic relationships, 
 
 146 
 
 — Guardianship of Women, 153 
 
 — ancient Boman Marriage, 154 
 
 — Master and Slave, 162 
 
 — uniformity of movement of the pro- 
 
 gressive societies , 168 
 
 — disintegration of the Family, 169 
 
 — movement of societies from status to 
 
 contract, 170 
 
 — Universal Succession, 177, 179, 181 
 — primitive society and universal suc- 
 cession, 183 
 
 — the ancient family a corporation, 184 
 Society in primitive limes not a collec- 
 tion ofindividual3,butanaggregation 
 of families, 126 
 
 Solon, Attic code of, 16 
 
 " Sophismes Anarchiques " of Bumont, 
 
 remarks on, 92 
 Sovereign, origin of the doctrine that 
 
 the monarch is the fountain of justice, 
 
 396 
 Sovereignty, territorial, proposition of 
 
 International Law on, 102, 103 
 
 — Tribe-sovereignty, 104 
 
 — Charlemagne and universal domi- 
 
 nion, 106 
 
 — Territorial sovereignty an offshoot 
 
 of feudalism, 107 
 
 — the See of Bome, 108 
 
 — Hugh Capet, 108 
 
 — the Anglo-Saxon princes, 108 
 
 — Naples, Spain, and Italy, 108 
 
 — Venice, 109 
 
 — points of junction between territorial 
 
 sovereignty and modem public law, 
 112 
 Spain, territorial sovereignty of the mo> 
 
 narchs of, 108 
 Status, movement of societies from, to 
 
 contract, 170 
 Statute Law of the Bomans, 41, 45 
 Stoic philosophy, principles of the, 54 
 
414 
 
 INDEX. 
 
 STOIC PHILOSOPHY 
 
 Stoic philosophy, its rapid progress in 
 Boman society, 55 
 
 — alliance of the Eoman lawyers ■with 
 
 the Stoics, 55 
 Succession, rules of, according to the 
 Hindoo Customary law, 7 
 
 — - Testamentary, 171 
 
 — early history, 171 
 
 — influence of the Church in enforcing 
 
 the sanctity of Wills, 173 
 
 — English law of, 173 
 
 — qualities necessarily attached to 
 
 Wills, 174 
 
 — natural rights of testation, 175 
 
 — restraints imposed by the CodeNapo- 
 
 Uon, 176 
 
 — nature of a Will, 177 
 
 — rights and duties of universal suc- 
 
 cessor, 177 
 
 — usual Boman definition of an In- 
 
 heritance, 181 
 
 — difference between modern testa- 
 
 mentary jurisprudence and the an- 
 cient law of Rome, 182 
 
 — the Family regarded as a Corpora- 
 
 tion, 184 
 
 — old Boman Law of Inheritance and 
 
 its notion of a Will, 189 
 
 — ancient objects of Wills, 190 
 
 — Sacra, or Family Bites, of the Bo- 
 
 mans, 191 
 
 — and of the Hindoos, 191, 192 
 
 — the invention of Wills due to the 
 
 Bomans, 194 
 
 — Eoman ideas of Succession, 195 
 
 — Testamentary Succession less ancient 
 
 than Intestate Succession, 195 
 
 — primitive operation of Wills, 196 
 
 — Wills of the ancient Germans, 196 
 
 — Jewish and Sengalee Wills, 197 
 
 — mode of execution of ancient Eo- 
 
 man Wills, 199 
 
 — description of ancient Boman Wills, 
 
 201 
 
 — ! nfluence of ancient Plebeian Wills on 
 
 thecivilisatiou of the modem world, 
 203 
 ^ the Mancipation, 204 
 
 — relation of Wilis to conveyances, 
 
 204 
 
 — the Testament per as et Ubram, 204, 
 
 213, 214 
 
 — consequence of this relation of TiSsta- 
 
 ments to Conveyances, 206 
 
 — remsdies, 207 
 
 TESTAMENTS 
 
 Succession, ancient Wills not written, 207 
 
 — remarks on the expression Emptor 
 
 Familiae, 208 
 
 — the Praetorian Will, 209 
 
 — the Bonorum Possessio, and the Bo- 
 
 norum Possessor, 211 
 
 — improvements in the old Will, 212, 
 
 213 
 
 — ancient and modem ideas respecting 
 
 Wills and Successors, 215 
 
 — Disinherison of Children, 216 
 
 — the age of Wills coeval with that, 
 
 of Feudalism, 224 
 
 — introduction ofthe principle of Dower, 
 
 224 
 
 — rights of Heirs and Co-heirs under 
 
 the Eoman Law, 227 
 
 — intestate, 195 
 
 — ancient Eoman law of, 199, 218 
 
 — the Justinian scale of Intestate 
 
 Succession, 219 
 
 — order of Intestate Succession among 
 
 the Bomans, 220 
 
 — horror of intestacy felt by the Eo- 
 
 mans, 232, 323 
 
 — rights of all the children of the de- 
 
 ceased under the Eoman Law, 227 
 
 — Universal, 177, 189 
 
 — in what it consists, 179 
 
 — the universal successor, 181 
 
 — formula of old Boman investiture 
 
 referred to, 190 
 Suttee of the Hindoos, 193 
 SyUa, L. Cornelius, his improvements in 
 the Boman Law, 41, 42 
 
 TABLES, the Twelve Decemviral, 1, 
 2, 14, 33 
 
 — collections of opinions interpretative 
 
 of the, 33 
 
 — their legalisation of Plebeian Wills, 
 
 202 
 
 — Law of the Twelve Tables respecting 
 
 Testamentary Dispositions, 216 
 Tablets, laws engraven on, 14 
 Tacitus, value of his " Germany " as a 
 record of primitive history, 120 
 
 — suspicions as to its fidelity, 121 
 Tarquins, change in the administration 
 
 of the law after the expulsion of the, 
 61,62 
 Tenancy, Eoman system of, 229 
 Testaments. See Succession , Testamen- 
 tary. 
 
INDEX. 
 
 415 
 
 THEFT 
 
 Thsft, ancient Eoman Law of, 307, 308 
 
 379 
 — modern breaches of trust, 307 
 Themis and Themistes of the Greek 
 
 Homeric poems, 4, 5, 125 
 Theology, connection between it and 
 
 Eoman Law, 355 
 Thirty Years' War, influence of the 
 
 horrors of the, on the success of the 
 
 treatise " De Jure Belli et Pacis " of 
 
 Grotius, 111 
 Torts, law of, 370 
 Tradition of property amongst the Eo- 
 
 mans, 278 
 — practical effect of a Mancipation 
 
 given to a Tradition, 278 
 Transfer of property, ancient modes of, 
 
 276 
 Troglodytes, the, 311 
 Turkey, rule of succession to the throne 
 
 of, 242 
 
 TTLPtAN, his attempt to distinguish 
 U between the Jus Naturale and the 
 
 Jus Gentium, 52 
 Universitatis juris, in what it consists, 
 
 178 
 Usucapion, principle of Eoman Law 
 
 known as, 212 
 — history of, 284 
 Usus, or lower form of civil marriage of 
 
 the ancient Eomans, 154 
 
 VANDALS, the, referred to, 104 
 Venetians, tieii lapse fiom tribe 
 sovereignty to territorial sovereignty, 
 109 
 
 ZEUS 
 
 Village Communities of India, 260, 262 
 
 et seq. 
 Visigoths, the, referred to, 104 
 Voltaire, referred to, 87 
 
 WAEFAEE, ancient forms of, 247 
 Wehrgeid, the, of Germany, 281 
 ■WheweU, Dr., on original Social Com- 
 pact, quoted, 347 
 
 — his view of Moral Philosophy, 348 
 Widow's share of her husband's estate, 
 
 224 
 
 — the reipus, or fine leviable on the re- 
 
 marriage of a widow in Germany, 
 281 
 Wills, influence of the Sacra GentUicia 
 on the law of, 6, 7 
 
 — See Succession, Testamentary 
 Women, laws respecting the status of, 
 
 152 
 
 — Eoman law of the Perpetual Tu- 
 
 telage of, 153 
 
 — amongst the Hindoos, 153 
 
 — and amongst the Scandinavians, 155 
 
 — Guardianship of Women undep,the 
 
 Eoman Law, 153 ! 
 
 — tutelage c^,' amongst the Hindoos, 
 
 153 ' • 
 
 — tutelage of j amongst the Scandina- 
 ' vians, 153 '■ 
 
 — ancient Eoman Marriage, 1 54 
 
 — later Eoman Marriage, 155 
 
 — special Proprietorship created by 
 
 the Court of Chancery for, 295 
 
 r7EUS, not a lawmaker, but a judge, 
 
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