ANCIENT LAWV.




BY THE SAiME AUTHOR.
VILLAGE COMMUNITIES IN THE EAST AND
W~EST. Six Lectures delivered at Oxford. 8vo.
THE EARLY HISTORY OF INSTITUTIONS,
in continuation of the Work on' Ancient Law.' Svo. 12s.




ANCIENT LAW:
ITS CONNECTION WITH THE EARLY HISTORY
OF SOCIETY, AND ITS RELATION
TO MODERN IDEAS.
BY SIR HENRY      SUMNER MAINE,
K.C.S.I., LL.D.
CORPUS PROFESSOR OF JURISPRUDENCE IN THE UNIVERSITY OF OXFORD),
FORMERLY READER ON JURISPRUDENCE AND THE CIVIL LAW AT THE MIDDLE1 TEMPLE,
LONDON:
JOHN MURRAY, ALBEMARLE STREEET.
18, 6.
The right'of itrans"tioR   is  reseLred.




IONDON: PRINTEDI) i Y
POTTISNWOODE AN) CO., NTEW-STEIIE,;T SQUAIB
AND PAR IIAIJIENT STREET




PREFACE
TO
THE    FIFTH      EDITION.
WHILE further reflection and research have not led
the Author of this work to alter his views on most of
the matters of-which it treats, he has convinced himself that the opinions expressed in the First Chapter
on the difficult and still obscure subject of the origin
of Customary Law require correction and modification. 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.
LONDON: December 1873.








PREFACE
TO
THE    THIRD      EDITION.
THE Second and Third Editions of this work have
been substantially reprints of the First.  Some few
errors have, however, been corrected.
It is necessary to remind the reader that 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 village-communities, and of negro-slavery
in the United States. It may perhaps be interesting
to the reader to observe the bearing of the changes
which have taken place on the argument of that
part of the work.
H. S. M
CALTcUTTA': ovember 1865.








PREFACE
TO
THE    FIRST     EDITION.
THE CHIEF OBJECT of the following pages is to indicate
some of the earliest ideas of mankind, as they are
reflected in Ancient Law, and to point out the relation of those ideas to modern thought. Much of the
inquiry attempted could not have been prosecuted
with the slightest hope of a useful result if there had
not existed a body of law, like that of the Romans,
bearing in its earlier portions the traces of the most
remote antiquity and supplying from its later rules
the staple of the civil institutions by which modern
society is even now controlled. The necessity of
taking the Roman law as a typical system, has compelled the Author to draw from it what may appear
a disproportionate number of his illustrations; but
it has not been his intention to write a treatise on.
a




Viii       PREFACE TO THE FIRST EDITION.
Roman jurisprudence, and he has as much as possible
avoided all discussions which might give that appearance to his work. The space allotted in the Third
and Fourth Chapters to certain philosophical theories
of the Roman Jurisconsults, has been appropriated
to them for two reasons. In the first place, those
theories appear to the Author to have had a much
wider and more permanent influence on the thought
and action of the world than is usually supposed.
Secondly, they are believed to be the ultimate source
of most of the views which have been prevalent,
till quite recently, on the subjects treated of in
this volume. It was impossible for the Author to
proceed far with his undertaking, without stating his
opinion on the origin, meaning, and value of those
speculations.
H. S. M.
LONDON: January 1861.




CONTENTS.
CHAPTER                                                 PAGE
I. ANCIENT CODES...                           1
II. LEGAL FICTIONS.                                21
III. LAW OF NATURE AND EQUITY..,        44
IV. THE IMODERN HISTORY OF THE LAW OF NATURE            73
V. PRIMITIVE SOCIETY AND ANCIENT LAW..  113
VI. THE EARLY HISTORY OF TESTAMENTARY JSUCCESSION.       171
VII. ANCIENT AND MODERN IDEAS RESPECTING WILLS AND
SUCCESSIONS... 215
VIII. THE EARLY HISTORY OF PROPERTY.... 244
IX. THE EARLY HISTORY OF CONTRACT... 304
X. THE EARLY HISTORY OF DELICT AND CRIME      o       367
INDEX...           O.. 401








ANCIENT LAW.
CHAPTER I.
ANCIENT CODES.
THE most celebrated system of jurisprudence known
to the world begins, as it ends, with a Code. From
the commencement to the close of its history, the
expositors of Roman Law consistently employed language which implied that the body of their system
rested on the Twelve Decemviral Tables, and 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                ANCIENT CODES.          CHAP. Ia
Neither theory corresponded exactly with the facts,
but each produced consequences of the utmost importance.
I need hardly say that the publication of the
Twelve Tables is not the 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 concerned, 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 conceptions which were not yet the subjects of conscious




CIAP. I.    RUDIMENTARY JURAL IDEAS.           3
observation; and in this respect the Homeric literature is far more trustworthy than those relatively
later documents which pretend to give an account
of times similarly early, but which were compiled
under philosophical or theological influences. If by
any means we can determine the early forms of jural
conceptions, they will be invaluable to us. These
rudimentary ideas are to the jurist what the primary
crusts of the earth are to the geologist. They contain, potentially, all the forms in which law has subsequently 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
which, when once entertained and believed in, they
are enabled to exercise on the later stages of jurisprudence.
B 2




4                ANCIENT CODES.           CHAP. 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 " Themis " and
" Themistes."  " Themis," it is well known, appears
in the later Greek pantheon as the Goddess of Justice,
but this is a modern and much developed idea, and
it is in a very different sense that Themis is described in the Iliad as the assessor of Zeus. It is
now clearly seen by all trustworthy observers of the
primitive condition of mankind that, in the infancy
of the race, men could only account for sustained or
periodically recurring action by supposing a personal
agent. Thus, the wind blowing was a person and of
course a divine person; the sun rising, culminating,
and setting was a person and a divine person; the
earth yielding her increase was a person and divine.
As, then, in the physical world, so in the moral.
When a king decided a dispute by a sentence, the
judgment was assumed to be the result of direct
inspiration. The divine agent, suggesting judicial
awards to kings or to gods, the greatest of kings,
was Themis.   The peculiarity of the conception is
brought out by the use of the plural.  Thiemistes,
Themises, the plural of Themis, are the awards themselves, divinely'dictated to the judge. Kings are
spoken of as if they had a store of " Themistes " ready
to hand for use; but it must be distinctly understood
that they are not laws, but judgments, or, to take the




CHAP. I.           THEMISTES,                 5
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." lHe is provided with Themistes, but, consistently 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 ancient society than they are now, and in the succession of similar cases awards are likely to follow and
resemble each other.  Here we have the germ or
rudiment of a custom, a conception posterior to that
of Themistes or judgments.  However strongly we,
with our modern associations, may be inclined to lay
down a priori that the notion of a Custom must precede that of a judicial sentence, and that a judgment
must affirm a custom or 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 "judgment" and a " custom" or " usage.' Noytog, a Law,
so great and famous a term in the political vocabulary
of the later Greek society, does not occur in Homer.
This notion of a divine agency, suggesting the




6                ANCIENT CODES.           CHAP. I.
Themistes, and itself impersonated in Themis, must
be kept apart from other primitive beliefs with which
a superficial inquirer might confound it.  The conception of the Deity dictating an entire code or body
of law, as in the case of the Hindoo laws of Manu,
seems to belong to a range of ideas more recent and
more advanced.   " Themis " and " Themistes" are
much less remotely linked with that persuasion which
clung so long and so tenaciously to the human mind,
of a divine influence underlying and supporting
every relation of life, every social institution. In
early law, and amid the rudiments of political
thought% symptoms of this belief meet us on all
sides. A supernatural presidency is supposed to
consecrate and keep together all the cardinal institutions of those times, the State, the Race, and the
Family. Men, grouped together in the different
relations which those institutions imply, are bound
to celebrate periodically common rites and to offer
common sacrifices; and every now and then the
same duty is even more significantly 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 all the rules of
succession hinge on the due solemnisation of fixed
ceremonies at the dead man's funeral, that is, at
every point where a breach occurs in the continuity
of the family.
Before we quit this stage of jurisprudence, a
caution may be usefully given to the English student. Bentham, in his " Fragment on Government,"
and Austin, in his " Province of Jurisprudence Determined," 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 generality is even now
quite in conformity with this dissection; and it is
curious that, the farther we penetrate into the primitive history of thought, the farther we find ourselves
from a conception of law which at all resembles a




8                 ANCIENT CODES.           CHAP. I.
compound of the elements which Bentham determined. It is certain that, in the infancy of mankind, no sort of legislature, nor even a distinct
author of law, is contemplated   or conceived of.
Law has scarcely reached the footing of custom;
it is rather a habit.  It is, 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 inconsistent theories which prevail concerning the character of English jurisprudence, the most popular,
or at all events the one which most affects practice,
is certainly a theory which assumes that adjudged
cases and precedents exist antecedently to rules,




CHAP. 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 adjudications 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 jurisprudence is strongly marked and surrounded by the
utmost interest. Mr. Grote, in the second part and
second chapter of his History, has fully described
the mode in which society gradually clothed itself
with a different character from that delineated by
Homer. Heroic kingship depended partly on divinely
given prerogative, and partly on the possession of
supereminent strength, courage, and wisdom. Gradually, as the impression of the monarch's sacredness
became weakened, and feeble members occurred in




10               ANCIENT CODES.           CHAP. I.
the series of hereditary kings, the royal power decayed, 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 everywhere in Europe to an era of oligarchies; and even
where the name of the monarchical functions does
not absolutely disappear, the authority of the king
is reduced to a mere shadow. He becomes a mere
hereditary general, as in Lacedaemon, a mere functionary, as the King Archon at Athens, or a mere
formal hierophant, like the Rex Sacrificuzts at Rome.
In Greece, Italy, and Asia Minor, the dominant
orders seem to have universally consisted of a
number of families united by an assumed relationship 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 all ultimately approached very closely to what we should
now   understand by a political aristocracy.  The
changes which society underwent in the communities of the further Asia occurred of course at
periods long anterior in point of time to these revolutions of the Italian and Hellenic worlds; but their




CHAP. I.       ARISTOCRATIC PERIOD.            11
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,
the religious element in the East tended to get the
better of the military and political. Military and
civil aristocracies disappear, annihilated or crushed
into insignificance between the kings and the sacerdotal order; and the ultimate result at which we
arrive is, a monarch enjoying great power, but circumscribed by the privileges of a caste of priests.
With these differences, however, that in the East
aristocracies became religious, in the West civil or
political, the proposition that a historical era of
aristocracies succeeded a historical era of heroic
kings may be considered as true, if not of all mankind, at all events of all branches of the Indo-European family of nations.
The important point for the jurist is that these
aristocracies were universally the depositaries and
administrators of law. They seem to have succeeded
to the prerogatives of the king, with the important




12               ANCIENT CODES.            CHAP. T.
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 il 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 all approximated to.  Their genuineness was, so far as possible,
insured by confiding them to the recollection of a
limited portion of the community.




CHAP. i.           CUSTOMARY LAW.             13
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 exclusively 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 caselaw 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
English common law might reasonably have been
termed unwritten.  The elder English judges did
really pretend to knowledge of rules, principles, and
distinctions which were not 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 applied to the circumstances of the case for adjudication. But at no stage of this process has it
any characteristic which distinguishes it from written
law. It is written case-law, and only different
from  code-law because it is written in a different
way.
From the period of Customary Law we come to
another sharply defined epoch in the history of jurisprudence. We arrive at the era of Codes, those
ancient codes of which the Twelve Tables of Rome
were the most famous specimen. In Greece, in Italy,
on the Hellenised sea-board of Western Asia, these
codes all made their 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 oligarchy. It must not for a moment be supposed that
the refined considerations now urged in favour of
what is called codification had any part or place in




CHAP. I.        ANCIENT CODES.                15
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 popularity, the codes were certainly in the main a direct
result of the invention of writing. Inscribed tablets
were seen to be a better depository of law, and a
better security for its accurate preservation, than the
memory of a number of persons however strengthened
by habitual exercise.
The Roman code belongs to the class of codes I
have been describing.  Their value did not consist
in any approach to symmetrical classification, or to
terseness and clearness of expression, but in their
publicity, and in the knowledge which they furnished to everybody, as to what he was to do, and
what not to do. It is, indeed, true that the Twelve
Tables of Rome do exhibit some traces of systematic
arrangement, but this is probably explained by the
tradition that the framers of that body of law
called in the assistance 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.            CHAP. 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,
civil, and merely moral ordinances, without any
regard to differences in their essential character; and
this is consistent with all we know of early thought
from other sources, the severance of law from morality, and of religion from  law, belonging very
distinctly to the later stages of mental progress.
But, whatever to a modern eye are the singularities of these codes, their importance to ancient
societies was unspeakable.  The question-and it
was one which affected the whole future of each coinmunity-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 ofjurisprudence
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 which
turned the history of the race was, at what period,
at what stage of their social progress, they should
have their laws put into writing. In the Western
world the plebeian or popular element in each State
successfully assailed the oligarchical monopoly, and
a code was nearly universally obtained early in the
history of the Commonwealth. But, in the East, as I




CoAP. I.         LAWS OF 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 individual communities larger and. more numerous
than in the West; and it is a known social law that
the larger the space over which a particular set of
institutions is diffused, the greater is its tenacity
and vitality.  From  whatever cause, the codes
obtained by Eastern societies were obtained, relatively, much later than by Western, and wore
a very different character. The religious oligarchies
of Asia, either for their own guidance, or for the
relief of their memory, or for the instruction of their
disciples, seem in all cases to have ultimately embodied
their legal learning in a code; but the opportunity of
increasing and consolidating their influence was probably too tempting to be resisted. Their complete
monopoly of legal knowledge appears to have enabled
them to put off on the world collections, not so much
of the rules actually observed as of the rules which
the priestly order considered proper to be observed.
The Hindoo Code, called the Laws of Manu, which
is certainly a Brahmin compilation, undoubtedly enshrines many genuine observances of the Hindoo race,
but the opinion of the best contemporary orientalists
is, that it does not, as a whole, represent a set of rules
C




t8               ANCIENT 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 emanation from the supreme God; but the compilation
which bears his name, though its exact date is not
easily discovered, is, in point of the relative progress
of Hindoo jurisprudence, a recent 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 oligarchy and also against the spontaneous depravation
and debasement of the national institutions. The
Roman Code was merely an enunciation in words of
the existing customs of the Roman people. Relatively 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 obligation and religious duty are inevitably confounded.
Now a barbarous society practising a body of customs, is exposed to some especial dangers which may
be absolutely fatal to its progress in civilisation. The
usages which a particular community is found to




CEAP. 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 superstitious reasons for their permanence. A process
then commences which may be shortly described
by saying that usage which is reasonable generates
usage which is unreasonable. Analogy, the most
valuable of instruments in the maturity of jurisprudence, is the most dangerous of snares in its infancy.
Prohibitions and ordinances, originally confined, for
good reasons, to a single description of acts; are made
to apply to all acts of the same class, because a man
menaced with the anger of the gods for doing one
thing, feels a natural terror in doing any other thing
which is remotely like it. After one kind of food
has been interdicted for sanitary reasons, the prohibition is extended to all food 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 is necessary for the maintenance of the national existence degenerates into the most disastrous
and blighting of all human institutions-Caste. The
fate of the Hindoo law is, in fact, the measure of the
value of the Roman Code. Ethnology shows us that
the Romans and the Hindoos sprang from the same
original stock, and there is indeed a striking resemblance between what appear to have been their
original customs. Even now, Hindoo jurisprudence
has a substratum of forethought and sound judgment, but irrational imitation has engrafted in it an
immense apparatus of cruel absurdities. From these
corruptions the Romans were protected by their code.
It was compiled while usage was still wholesome, and
a hundred years afterwards it might have been too
late. The Hindoo law has been to a great extent
embodied in writing, but, ancient as in one sense are
the compendia which still exist in Sanskrit, they
contain ample evidence that they were drawn up
after the mischief had been done. We are not of
course entitled to say that if the Twelve Tables had
not been published the Romans would have been condemned to a civilisation as feeble and perverted as
that of the Hindoos, but thus much at least is certain,
that with their code they were exempt from the very
chance of so unhappy a destiny.




ClAP. II.         LEGAL FICTTONS.             91
CHAPTER II.
LEGAL FICTIONS.
WHEN primitive law has once been embodied in a
Code, there is an end to what may be called its spontaneous development.   Henceforward the changes
effected in it, if effected at all, are effected deliberately
and from without. It is impossible to suppose that
the customs of any race or tribe remained unaltered
during the whole of the long-in some instances
the  immense-interval between their declaration
by a patriarchal monarch and their publication in
writing. It would be unsafe too to affirm that no
part of the alteration was effected deliberately. But
from the little we know of the progress of law during
this period, we are justified in assuming that set
purpose had the very smallest share in producing
change.  Such innovations on the earliest usages as
disclose themselves appear to have been dictated by
feelings and modes of thought which, under our present
mental conditions, we are unable to comprehend. A
new era begins, however, with the Codes. Wherever,
after this epoch, we trace the course of legal modification, we are able to attribute it to the conscious desire
of improvement, or at all events of compassing objects




22                LEGAL FICTIONS.         CHAP. Il.
other than those which were aimed at in the primitive
times.
It may seem at first sight that no general propositions worth trusting can be elicited from the history
of legal systems subsequent to the codes.  The field
is too vast. We cannot be sure that we have included
a sufficient number of phenomena in our observations,
or that we 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 progressive societies begins to make itself felt.  It is
only with the progressive societies that we are concerned, and nothing is more remarkable than their
extreme fewness. In spite of overwhelming evidence,
it is most difficult for a citizen of Western Europe to
bring thoroughly home to himself the truth that the
civilisation which surrounds him is a rare exception
in the history of the world.  The tone of thought
common among us, all our hopes, fears, and speculations, would be materially affected, if we had vividly
before us the relation of the progressive races to the
totality of human life. It is indisputable that much
the greatest part of mankind has never shown a
particle of desire that its civil institutions should be
improved since the moment when external completeness was first given to them by their embodiment in
some permanent record. One set of usages has occa



CHAP. IT. STATIONARY AND PROGRESSIVE 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 of
the civilisation expanding the law, the law has limited
the civilisation.  The study of races in their primitive condition affords us some clue to the point at
which the development of certain societies has
stopped. We can see that Brahminical 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 religion. The members of such a society consider that
the transgression of a religious ordinance should be
punished by civil penalties, and that the violation of
a civil duty exposes the delinquent to divine correction. In China this point has been passed, but progress 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 penetrate. Among partial explanations of it I venture to
place the considerations urged at the end of the last




24               LEGAL FICTIONS.          CHAP. 11.
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 improvement was continued through periods at which all the
rest of human thought and action materially slackened
its pace, and repeatedly threatened to settle down
into 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
more or less in advance of Law. We may come indefinitely near to the closing of the gap between them,
but it has a perpetual tendency to reopen. Law is
stable; the societies we are speaking of are progressive.  The greater or less happiness of a people
depends on the degree of promptitude with which
the gulf is narrowed.
A general proposition of some value may be ad



CHAP. II.  FICTIONS, EQUITY, AND LEGISLATION.  25
vanced with respect to the agencies by which Law is
brought into harmony with society.  These instrumentalities seem to me to be three in number, Legal
Fictions, Equity, and Legislation. Their historical
order is that in which I have placed them. Sometimes two of them will be seen operating together,
and there are legal systems which have escaped the
influence of one or other of them. But I know of no
instance in which the order of their appearance has
been changed or inverted. The early history of one
of them, Equity, is universally obscure, and hence
it may be thought by some that certain isolated
statutes, reformatory of the civil law, are older than
any equitable jurisdiction. My own belief is that
remedial Equity is everywhere older than remedial
Legislation; but, should this be not strictly true, it
would only be necessary to limit the proposition
respecting their order of sequence to the periods at
which they exercised a sustained and substantial influence in transforming the original law.
I employ the word " fiction " in a sense considerably 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 Roman
"fictiones."  Fictio, in old Roman law, is properly a
term of pleading, and signifies a false averment on
the part of the plaintiff which the defendant was not
allowed to traverse; such, for example, as an aver



26               LEGAL FICTIONS.           CHAP. II.
ment that the plaintiff was a Roman citizen, when in
truth he was a foreigner. The object of these " fictiones " was, of course, to give jurisdiction, and they
therefore strongly resembled the allegations in the
writs of the English Queen's Bench and Exchequer,
by which those Courts contrived to usurp the jurisdiction of the Common Pleas:-the allegation that
the defendant was in custody of the king's marshal,
or that the plaintiff was the king's debtor, and could
not pay his debt by reason of the defendant's default.
But now I employ the expression "Legal Fiction " to
signify aly assumption which conceals, or affects to
conceal, the fact that a rule of law has undergone
alteration, its letter remaining unchanged, its operation being modified. The words, therefore, include
the instances of fictions which I have cited from the
English and Roman law, but they embrace much
more, for I should speak both of the English Case law
and of the Roman Responsa Prudentum as resting
on fictions. Both these examples will be examined
presently. The fact is in both cases that the law has
been wholly changed; the fiction is that it remains
what it always was. It is not difficult to understand
why fictions in all their forms are particularly congenial to the infancy of society.  They satisfy the
desire for improvement, which is not quite wanting,
at the same time that they do not offend the superstitious disrelish for change which is always present.




CHAP. II.         LEGAL FICTIONS.               27
At a particular stage of social progress they are
invaluable expedients for overcoming the rigidity of
law, and, indeed, without one of them, the Fiction of
Adoption which permits the family tie to be artificially created, it is difficult to understand how society
would ever have escaped from its swaddling-clothes,
and taken its first steps towards civilisation. We
must, therefore, not suffer ourselves to be affected by
the ridicule which Bentham pours on legal fictions
wherever he meets them. To revile them as merely
fraudulent is to betray ignorance of their 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 Fictions 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 unworthy of us to effect an admittedly beneficial object
by so rude a device as a legal fiction. I cannot
admit any anomaly to be innocent, which makes the
law either more difficult to understand or harder to
arrange in harmonious order. Now, among other
disadvantages, legal fictions are the greatest of obstacles to symmetrical classification. The rule of




28                    EQUITY.              CHA. II.
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 will
differ as to the branch of the alternative which ought
to 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,
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 principles.  The Equity whether of the Roman
Praetors or of the English Chancellors, differs from
the Fictions which in each case preceded it, in that
the 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
its claim to authority is grounded, not on the prerogative of any external person or body, not even on
that of the magistrate who enunciates it, but on the
special nature of its principles, to which it is alleged
that all law ought to conform. The very conception




CHAP. xI.          LEGISLATION.               29
of a set of principles, invested with a higher sacredness than those of the original law and demanding
application independently of the consent of any external body, belongs to a much more advanced stage
of thought than that to which legal fictions originally
suggested themselves.
Legislation, the enactments of a legislature which,
whether it take the form of an autocratic prince or
of a parliamentary assembly, is the assumed organ of
the entire society, is the last of the ameliorating instrumentalities. It differs from Legal Fictions just
as Equity differs from them, and it is also distinguished
from Equity, as deriving its authority from an external
body or person. Its obligatory force is independent
of its principles. The legislature, whatever be the
actual restraints imposed on it by 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 legislature and not to that of the principles on which the
legislature acted; and thus they differ from rules of
Equity, in the technical sense of the word, which
pretend to a paramount sacredness entitling them at




30               LEGAL FICTIONS.          CHAP. II.
once to the recognition of the courts even without
the concurrence of prince or parliamentary assembly.
It is the more necessary to note these differences,
because a student of Bentham would be apt to confound Fictions, Equity, and Statute Law under the
single head of Legislation. They all, he would say,
involve law-maJking; they differ only in respect of
the machinery by which the new law is produced.
That is perfectly true, and we must never forget it;
but it furnishes no reason why we should deprive
ourselves of so convenient a term as Legislation in the
special sense. Legislation and Equity are disjoined
in the popular mind and in the minds of most lawyers; and it will never do to neglect the distinction
between them, however conventional, when important
practical consequences follow from it.
It would be easy to select from almost any regularly developed body of rules examples of legal fictions,
which at once betray their true character to the
modern observer. In the two instances which I
proceed to consider, the nature of the expedient employed is not so readily 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. II.            CASE-LAW.                31
trate the wide diffusion of legal fictions, and the efficiency with which they perform their twofold office
of transforming a system of laws ard of concealing
the transformation.
We in England are well accustomed to the extension, modification, and improvement of law by a
machinery which, in theory, is incapable of altering
one jot or one line of existing jurisprudence. The
process by which this virtual legislation is effected is
not so much insensible as unacknowledged. With
respect to that great portion of our legal system
which is enshrined in cases and recorded in law
reports, we habitually employ a double language, and
entertain, as it would appear, a double and inconsistent set of ideas. WVhen a group of facts comes
before an English Court for adjudication, the whole
course of the discussion between the judge and the
advocates assumes that no question is, or can be,
raised which will call for the application of any
principles but old ones, or of any distinctions but
such as have long since been allowed. It is taken
absolutely for granted that there is somewhere a rule
of known law which will cover the facts of the
dispute now 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. II.
into a new language and a new train of thought.
We now admit that the new decision has modified
the law. The rules applicable have, to use the very
inaccurate expression sometimes employed, become
more elastic. In fact they have been changed. A
clear addition has been made to the precedents, and
the canon of law elicited by comparing the precedents is not the same with that which would have
been obtained if the series of cases had been curtailed
by a single example. The fact that the old rule has
been repealed, and that a new one has replaced it,
eludes us, because we are not in the habit of throwing
into precise language the legal formulas which we
derive from the precedents, so that a change in their
tenor is not easily detected unless it is violent and
glaring. I shall not now pause to consider at length
the causes which have led English lawyers to acquiesce in these curious anomalies. Probably it will
be found that originally it was the received doctrine
that somewhere, in nubibuzs or in gremio magistratuum,
there existed a complete, coherent, symmetrical body
of English law, of an amplitude sufficient 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 foundation. The judges of the thirteenth century may
have really had at their command a mine of law




CHAP. II.   ANSWERS OF 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 practitioners have so expressed themselves as to convey
the paradoxical proposition that, except by Equity
and Statute law, nothing has been added to the basis
since it was first constituted. We do not admit that
our tribunals legislate; we imply that they have
never legislated; and yet we maintain that the rules
of the English common law, with some assistance
from the Court of Chancery and from Parliament,
are coextensive with the complicated interests of
modern society.
A body of law bearing a very close and very instructive resemblance to our case-law in those particulars which I have noticed, was known to the
Romans under the name of the Responsa Prudentum,
the " answers of the learned in the law."  The form
of these Responses varied a good deal at different periods of the Roman jurisprudence, but throughout its
whole course they consisted of explanatory glosses on
authoritative written documents, and at first they
were exclusively collections of opinions interpretative
D




34               LEGAL FICTIONS.           CHAP. nI
of the Twelve Tables. As with us, all legal language
adjusted itself to the assumption that the text of the
old Code remained unchanged.   There was the express rule. It overrode all glosses and comments,
and no one openly admitted that any interpretation
of it, however eminent the interpreter, was safe from
revision on appeal to the venerable texts. Yet in
point of fact, Books of Responses bearing the names of
leading jurisconsults obtained an authority at least
equal to that of our reported cases, and constantly
modified, extended, limited, or practically 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 application 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 LEARNED.         35
the reputation of the particular jurisconsults who
gave them  to the world.   Any name of universally 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 foundation on which a further body of jurisprudence
might rest. The responses of the early lawyers were
not however published, in the modern sense, by
their author.  They were 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 Commentaries, 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
D 2




36               LEGAL FICTIONS.           CHAP. II.
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 judicature than to a cycle of offices briskly circulating among
the leaders of the bar. Much might be said on the
origin of a condition of things which looks to us like
a startling anomaly, but which was in fact much more
congenial than our own system to the spirit of ancient societies, tending, as they always did, to split
into distinct orders which, however exclusive themselves, 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. II.   ANSWERS OF THE LEARNED.           f7
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 clients from the country flocking 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 wellknown oration of Cicero, "Pro Murxna," that the
reverence of the commons for forensic success was
apt to be excessive rather than deficient.




88               LEGAL FICTIONS.          CHAP. IH.
We cannot doubt that the peculiarities which have
been noted in the instrumentality by which the development of the Roman law was first effected, were
the source of its characteristic excellence, its early
wealth in principles.  The growth and exuberance of
principle was fostered, in part, by the competition
among the expositors of the law, an influence wholly
unknown where there exists a Bench, the depositaries
intrusted by king or commonwealth with the prerogative of justice. But the chief agency, no doubt,
was the uncontrolled multiplication of cases for legal
decision. The state of facts which caused genuine
perplexity to a country client was not a whit more
entitled to form the basis of the jurisconsult's Response, or legal decision, than a set of hypothetical
circumstances propounded by an ingenious pupil.
All combinations of fact were on precisely the same
footing, whether they were real or imaginary. It
was nothing to the jurisconsult that his opinion was
overruled for the moment by the magistrate who adjudicated on his client's case, unless that magistrate
happened to rank above him in legal knowledge or
the esteem of his profession. I do not, indeed, mean
it to be inferred that he would wholly omit to consider his client's advantage, for the client was in
earlier times the great lawyer's constituent and at a
later period his paymaster, but the main road to the
rewards of ambition lay through the good opinion of




CHAP. II.    ANSWERS OF THE LEARNED.          39
his order, and it is obvious that under such a system
as I have been describing this was much more likely
to be secured by viewing each case as an illustration
of a great principle, or an exemplification of a broad
rule, than by merely shaping it for an insulated
forensic triumph. It is evident that powerful influence must have been exercised by the want of any
distinct check on the suggestion or invention of possible questions. Where the data can be multiplied
at pleasure, the facilities for evolving a general rule
are immensely increased. As the law is administered among ourselves, the judge cannot travel out
of the sets of facts exhibited before him or before
his predecessors. Accordingly each group of circumstances which is adjudicated upon receives, to employ
a Gallicism, a sort of consecration.  It acquires certain qualities which distinguish it from every other
case genuine or hypothetical. But at Rome, as I
have attempted to explain, there was nothing resemnbling a Bench or Chamber of judges; and therefore no combination of facts possessed any particular
value more than another. When a difficulty came
for opinion before the jurisconsult, there was nothing
to prevent a person endowed with a nice perception
of analogy from at once proceeding to adduce and
consider an entire class of supposed questions with
which a particular feature connected it. Whatever
were the practical advice given to the client, the




40               LEGAL FICTIONS.         CHAP. IT.
responsum treasured up in the note-books of listening pupils would doubtless contemplate the circumstances as governed by a great principle, or included
in a sweeping rule. Nothing like this has ever been
possible among ourselves, and it should be acknowledged that in many criticisms passed on the English
law the manner in which it has been enunciated
seems to have been lost sight of. The hesitation of
our courts in declaring principles may be much more
reasonably attributed to the comparative scantiness
of our precedents, voluminous as they appear to him
who is 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 Roman jurisprudence for
the foundation of their civil institutions.  They
built the debris of the Roman law into their walls;
but in the materials and workmanship of the residue
there is not much which distinguishes it favourably
from the structure erected by the English judicature.
The period of Roman freedom was the period during
which the stamp of a distinctive character was impressed on the Roman jurisprudence; and through
all the earlier part of it, it was by the Responses of
the jurisconsults that the development of the law was
mainly carried on. But as we approach the fall of
the republic there are signs that the Responses are




CHAP. II.      LATER JURISCONSULTS.           41
assuming a form which must have been fatal to their
farther expansion. They are becoming systematised
and reduced into compendia. Q. Mucius 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 the more active instruments of legal
innovation. Other agencies had in fact by this time
been brought to bear on the law. The Edict, or
annual proclamation of the Prator, had risen into
credit as the principal engine of law reform, and
L. Cornelius Sylla, by causing to be enacted the
great group of statutes called the Leges Cornelice, had
shown what rapid and speedy improvements can be
effected by direct legislation.  The final blow to the
Responses was dealt by Augustus, who limited to a
few leading jurisconsults the right of giving binding
opinions on cases submitted to them, a change which,
though it brings us nearer the ideas of the modern
world, must obviously have altered fundamentally
the characteristics of the legal 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, Gaius and Papinian, were not authors
of Responses.  Their works were regular treatises on
particular departments of the law, more especially on
the Prator's Edict.




42               LEGAL FICTIONS.          CHA?. I.
The Equity of the Romans 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 in the laws, which are
usually valued above their real worth, but solely for
their pure, complete, and easy administration; and
recourse to the legislative body is generally directed
to the removal of some great abuse, or the decision of
some incurable quarrel between classes or dynasties.
There seems in the minds of the Romans to have
been some association between the enactment of a
large body of statutes and the settlement of society
after a great civil commotion. Sylla signalised his
reconstitution of the republic by the Leges Corneiiae;
Julius Cesar contemplated vast additions to the
Statute Law; Augustus caused to be passed the allimportant group of Leges Julia3; and among later
emperors the most active promulgators of constitutions are princes who, like Constantine, have the
concerns of the world to readjust. The true period
of Roman Statute Law does not begin till the establishment of the empire. The enactments of the
emperors, clothed at first in the pretence of popular




CHAP. IT.       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.             CHAP. III.
CHAPTER III.
LAW OF NATURE AND EQUITY.
THE theory of a set of legal principles entitled by
their intrinsic superiority to supersede the older law,
very early obtained currency both in the Roman
State and in England. Such a body of principles,
existing in any system, has in the foregoing chapters
been denominated Equity, a term which, as will presently be seen, was one (though only one) of the
designations by which this agent of legal change was
known to the Roman jurisconsults.   The jurisprudence of the Court of Chancery, which bears the
name of Equity in England, could only be adequately
discussed in a separate treatise.  It is extremely
complex in its texture, and derives its materials from
several heterogeneous sources. The early ecclesiastical chancellors contributed to it, from  the Canon
Law, many of the principles which 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




CoAP. III.           EQUITY.                 45
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 jurisprudence and morals constructed by the publicists of
the Low Countries appear to have been much studied
by English lawyers, and from the chancellorship of
Lord Talbot to the commencement of Lord Eldon's
chancellorship these works had considerable effect on
the rulings of the Court of Chancery. The system,
which obtained its ingredients from these various
quarters, was greatly controlled in its growth by the
necessity imposed on it of conforming itself to the
analogies of the common law, but it has always answered the description of a body of comparatively
novel legal principles claiming to override the older
jurisprudence of the country on the strength of an
intrinsic ethical superiority.
The Equity of Rome was a much simpler structure,
and its development from its first appearance can
be much more easily traced. Both its character and
its history deserve attentive examination. It is the
root of several 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 consisting of two ingredients. " All nations," says the




46       LAW OF NATIONS AND OF NATURE.   CHA. III.
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 all nations use it."  The part of the
law'L which natural reason appoints for all mankind"
was the element which the Edict of the Pretor was
supposed to have worked into Roman jurisprudence.
Elsewhere it is styled more simply Jus Naturale, or
the Law of Nature; and its ordinances are said to
be dictated by Natural Equity (naturalis cequitas)
as well as by natural reason. I shall attempt to
discover the origin of these famous phrases, Law of
Nations, Law of Nature, Equity, and to determine
how the conceptions which they indicate are related
to one another.
The most superficial student of Roman history
must be struck by the extraordinary degree in which
the fortunes of the republic were affected by the
presence of foreigners, under different names, on her
soil. The causes of this immigration are discernible
enough at a later period, for we can readily understand 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




CHAP. III.  LAW OP NATIONS AND OF NATURE.     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 themselves in the territory of any community strong
enough to protect itself and them from external
attack, even though protection should be purchased at
the cost of heavy taxation, 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,
Rome appears certainly to have had with Carthage
and with the interior of Italy in pre-historic times.
Whatever were the circumstances to which it was
attributable, the foreign element in the commonwealth
determined the whole course of its history, which,
at all its stages, is little more than a narrative of
conflicts between a stubborn nationality and an alien
population.  Nothing like this has been seen in
modern times; on the one hand, because modern
European communities have seldom or never received
any accession of foreign immigrants which was large
enough to make itself felt by the bulk of the native
citizens, and on the other, because 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. IlI.
settlers 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 exclusion 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.  It was therefore probably half as a measure of police and half in
furtherance of commerce that jurisdiction was first




CHAP. III.       LAW OF NATIONS.             49
assumed in disputes to which the parties were either
foreigners or a native and a foreigner. The assumption of such a jurisdiction brought with it the
immediate necessity of discovering some principles
on which the questions to be adjudicated upon could
be settled, and the principles applied to this object
by the Roman lawyers were eminently characteristic
of the time. They refused, as I have said before, to
decide the new cases by pure Roman Civil Law.
They refused, no doubt because it seemed to involve
some kind of degradation, to apply the law of the particular State from which the foreign litigant came.
The expedient to which they resorted was that of selecting the rules of law common to Rome and to the
different Italian communities in which the immigrants
were born. In other words, they set themselves to form
a system answering to the primitive and literal meaning
of Jus Gentium, that is, Law common to all Nations.
Jus Gentium was, in fact, the sum 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
E




50               LAW OF NATIONS.          CHAP. III.
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
Gentiumr, or rule of the Law common to all Nations.
A vast number of. other observances were scrutinised
with the same result.  Some common characteristic
was discovered in all of them, which had a common
object, and this characteristic was classed in the Jus
Gentium.   The Jus Gentium was accordingly a collection of rules and principles, determined by observation to be common to the institutions which
prevailed among the various Italian tribes.
The circumstances of the origin of the Jus Gentium
are probably a sufficient safeguard against the mistake of supposing that the Roman lawyers had
any special respect for it. It was the fruit in part
of their disdain for all foreign law, and in part of
their disinclination to give the foreigner the advantage of their own indigenous Jus Civile. It is true
that we, at the present day, should probably take a
very different view of the Jus Gentium, if we were
performing the operation which was effected by the




CHAP. IlI.      LAW OF NATIONS.               51
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. Perhaps we should speak of the common ingredient as
being of the essence of the transaction into which it
entered, and should stigmatise the remaining apparatus of ceremony, which varied in different communities, as adventitious and accidental.  Or it may
be, we should infer that the races which we were
comparing once obeyed a great system of common
institutions of which the Jus Gentium was the reproduction, and that the complicated usages of separate
commonwealths were only corruptions and depravations of the simpler ordinances which had once
regulated their primitive state. But the results
to which modern ideas conduct the observer are,
as nearly as possible, the reverse of those which
were instinctively brought home to the primitive
Roman. What we respect or admire, he disliked
or regarded with jealous dread.    The parts of
jurisprudence which he looked upon with affection
were exactly those which a modern theorist leaves
out of 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
E 2




52               LAW OF NATURE.          CHAP. III.
procedure. The Jus Gentium was merely a system
forced on his attention by a political necessity. IHe
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 modern jurisprudence and
modern philosophy have inherited the matured views
of the later jurisconsults on this subject. There did
come a time when, from an ignoble appendage of the
Jus Civile, the Jus Gentium came to be considered
a great though as yet imperfectly developed model
to which all law ought as far as possible to conform.
This crisis arrived when the Greek theory of a Law of
Nature was applied to the practical Roman administration of the Law common to all Nations.
The Jus Naturale, or Law of Nature, is simply the
Jus Gentium or Law of Nations seen in the light of
a peculiar theory. An unfortunate attempt to discriminate them was made by the jurisconsult Ulpian,
with the propensity to distinguish 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 expressions were practically convertible. The difference be



CHAP. II.            NATURE.                  53
tween them was entirely historical, and no distinction
in essence could ever be established between them.
It is almost unnecessary to add that the confusion
between Jus Gentium, or Law common to all Nations,
and international lawt is entirely modern.  The classical 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
of independent states are governed by the Law of
Nature.
It becomes necessary to investigate the Greek
conceptions of Nature and her law. The word ~vnis
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 signified 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 movement, fire, moisture, or generation.  In its simplest
and most ancient sense, Nature is precisely the
physical universe looked upon in this way as the




54                   NATURE.             CHAP. III.
manifestation of a principle. Afterwards, the later
Greek sects, returning to a path fiom which the
greatest intellects of Greece had meanwhile strayed,
added the moral to the physical world in the conception of Nature. They extended the term till it
embraced not merely the visible creation, but the
thoughts, observances, and aspirations of mankind.
Still, as before, it was not solely the moral phenomena of human society which they understood by
7iature, but these phenomena considered as resolvable 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 accident the human race would have conformed itself
to simpler rules of conduct and a less tempestuous
life. To live according to nature came to be considered as the end for which man was created, and
which the best men were bound to compass. To
live according to nature was to rise above the disorderly habits and gross indulgences of the vulgar
to higher laws of action which nothing but selfdenial and self-command would enable the aspirant
to observe. It is notorious that this propositionlive according to nature-was the sum of the tenets
of the famous Stoic philosophy. Now on the subju



CHAP. III.         THE STOICS.               55
gation of Greece that philosophy made instantaneous
progress in Roman society. It possessed natural
fascinations for the powerful class who, in theory at
least, adhered to the simple habits of the ancient
Italian race, and disdained to surrender themselves
to the innovations of foreign fashions. Such persons
began immediately to affect the Stoic precepts of
life according to nature-an affectation all the more
grateful, and, I may add, all the more noble, from its
contrast with the 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 republic, the military men were generally identified
with the party of movement, but the lawyers were
universally at the head of the party of resistance.
The alliance of the lawyers with the Stoic philosophers lasted through many centuries. Some of
the earliest names in the series of renowned jurisconsults are associated with Stoicism, and ultimately
we have the golden age of Roman jurisprudence
fixed by general consent at the era of the Antonine
Cesars, the most famous disciples to whom  that
philosophy has given a rule of life. The long




56               LAW OF NATURE.          CHAP. tir.
diffusion of these doctrines among the members of a
particular profession was sure to affect the art which
they practised and influenced. Several positions
which we find in the remains of the Roman jurisconsults are scarcely intelligible, unless we use the
Stoic tenets as our key; but at the same time it is
a serious, though a very common, error to measure
the influence of Stoicism on Roman law by counting
up the number of legal rules which can be confidently affiliated on Stoical dogmas. It has often
been observed that the strength of Stoicism resided
not in its canons of conduct, which were often repulsive or ridiculous, but in the great though vague
principle which it inculcated of resistance to passion.
Just in the same way the influence on jurisprudence
of the Greek theories, which had their most distinct
expression in Stoicism, consisted not in the number of specific positions which they contributed to
Roman law, but in the single fundamental assumption which they lent to it. After Nature had
become a household word in the mouths of the
Romans, the 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 principles of the Jus Gentium was gradually restoring a
type from which law had only departed to deteriorate.
The inference from this belief was immediate that it




CHAP. III.          EQUITY.                  57
was the Praetor's duty to supersede the Civil Law as
much as possible by the Edict, to revive as far as
might be the institutions by which Nature had governed man in the primitive state. Of course there
were many impediments to the amelioration of law by
this agency. There may have been prejudices to overcome even in the legal profession itself, and Roman
habits were far too tenacious to give way at once
to mere philosophical theory. The indirect methods
by which the Edict combated certain technical anomalies, show the caution which its authors were compelled
to observe, and down to the very days of Justinian
there was some part of the old law which had obstinately resisted its influence. But on the whole,
the progress of the Romans in legal improvement
was astonishingly rapid as soon as stimulus was
applied to it by the theory of Natural Law. The
ideas of simplification and generalisation had always
been associated with the conception of Nature; simplicity, symmetry, and intelligibility came therefore
to be regarded as the characteristics of a good legal
system, and the taste for involved language, multiplied ceremonials, and useless difficulties disappeared altogether. The strong will and unusual
opportunities of Justinian were needed to bring the
Roman law to its existing shape, but the groundplan of the system had been sketched long before
the imperial reforms were effected.




58                   EQUITY.             CHAP. IT.
WVhat was the exact point of contact between the
old Jus Gentium and the Law of Nature?   I think
that they touch and blend through JEquitas, or
Equity in its original sense; and here we seem to
come to the first appearance in, jurisprudence of this
famous term Equity. In examining an expression
which has so remote an origin and so long a history
as this, it is always safest to penetrate, if possible,
to the simple metaphor or figure which at first
shadowed forth the conception. It has generally
been supposed that IEquitas is the equivalent of the
Greek Iorors, i. e. the principle of equal or proportionate distribution. The equal division of numbers
or physical magnitudes is doubtless closely entwined
with our perceptions of justice; there are few associations which keep their ground in the mind so
stubbornly or are dismissed from it with such difficulty by the deepest thinkers. Yet in tracing the
history of this association, it certainly does not seem
to have suggested   itself to very  early thought,
but is rather the offspring of a 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 Aristogiton are said to have given to Athens-had
little in common with the " equity " of the Romans.
The first was an equal administration of civil laws




CHAP. In.            EQUITY.                  59
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."  The Latin word " aequus"
carries with it more distinctly than the Greek "'log"
the sense of levelling. Now its levelling tendency
was exactly the characteristic of the Jus Gentium,
which would be most striking to a primitive Roman.
The pure Quiritarian law recognised a multitude
of arbitrary distinctions between classes of men and
kinds of property: the Jus Gentium, generalised
from  a comparison of various customs, neglected
the Quiritarian divisions. The old Roman law
established, for example, a fundamental difference
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 modern 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 a' and Things "' nec Mancipi." The
neglect of demarcations and boundaries seems to




60               LAW OF NATURE.          CHAP. III.
me, therefore, the feature of the Jus Gentiumn which
was depicted in IEquitas. I imagine that the word
was at first a mere description of that constant
levelling or removal of irregularities which went on
wherever the praetorian system was 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 unconsciously before the mind's eye, whether it strove to
form the outlines of the supposed natural state, or
whether it took in at a glance the actual administration of the " law common to all nations; " and all we
know of primitive thought would lead us to conclude
that this ideal similarity would do much to encourage
the belief in an identity of the two conceptions. But
then, while the Jus Gentium had little or no antecedent
credit at Rome, the theory of a Law of Nature came




CHAP. IlI.         THE EDICT.                61
in 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 difference in the
point of view would affect the dignity of the term
which at once described the operation of the old
principles and the results of the new theory. Even
to modern ears it is not at all the same thing to
describe a process as one of " levelling " and to call
it the " correction of anomalies," though the metaphor is precisely the same. Nor do I doubt that,
when once JEquitas was understood to convey an
allusion to the Greek theory, associations which grew
out of the Greek notion of IaTor-g began to cluster
round it.  The language of Cicero renders it more
than likely that this was so, and it was the first
stage of a transmutation of the conception of
Equity, which almost every ethical system which has
appeared since those days has more or less helped to
carry on.
Something must be said of the formal instrumentality by which the principles and distinctions associated, first with the Law common to all nations, and
afterwards with the Law of Nature, were gradually
incorporated with the Roman law. At the crisis of
primitive Roman history which is marked by the
expulsion of the Tarquins, a change occurred which
has its parallel in the early annals of many ancient




62                THE PRETOR.           CHAP. II.
states, but which had little in common with those
passages of political affairs which we now term revolutions. It may best be described by saying that
the monarchy was put into commission. The powers
heretofore accumulated in the hands of a single person were parcelled out among a number of elective
functionaries, the very name of the kingly office
being retained and imposed on a personage known
subsequently as the Rex Sacrorum or Rex Sacrificulus. As part of the change, the settled duties of
the supreme judicial office devolved on the Proetor,
at the time the first functionary in the commonwealth,
and together with these duties was transferred the
undefined supremacy over law and legislation which
always attached to ancient sovereigns, and which is
not obscurely related to the patriarchal and heroic
authority they had once enjoyed. The circumstances
of Rome gave great importance to the more indefinite
portion of the functions thus transferred. as with the
establishment of the republic began that series of
recurrent trials which overtook the state, in the difficulty of dealing with a multitude of persons who,
not coming within the technical description of indigenous Romans, were nevertheless permanently located
within Roman jurisdiction.  Controversies between
such persons, or between such persons and native-born
citizens, would have remained without the pale of the
remedies provided by Roman ]aw, if the Praetorhad




CHAP. III.          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
Praotor Peregrinus, who gave them his undivided
attention. Meantime, one precaution of the Roman
people against the revival of oppression, had consisted in obliging every magistrate whose duties had
any tendency to expand their sphere, to publish,
on commencing his year of office, an Edict or
proclamation in which he declared the manner in
which he intended to administer his department.
The Praetor fell under the rule with other magistrates; but as it was necessarily impossible to construct each year a separate system of principles, he
seems to have regularly republished his predecessor's Edict with such additions and changes as the
exigency of the moment or his own views of the law
compelled him to introduce. The Praetor's proclamation, thus lengthened by a new portion every year,
obtained the name of the Edictum Perpetuum, that
is the continuous or unbroken edict. The immense
length to which it extended, together perhaps with
some distaste for its necessarily disorderly texture,
caused the practice of increasing it to be stopped in




64                 THE PRLETOR.          CHAP. III.
the year of Salvius Julianus, who occupied the magistracy in the reign of the Emperor Hadrian. The
edict of that Praotor embraced therefore the whole
body of equity jurisprudence, which it probably disposed in new and symmetrical order, and the perpetual edict is therefore often cited in Roman law
merely as the Edict of Julianus.
Perhaps the first inquiry which occurs to an
Englishman who considers the peculiar mechanism of
the Edict is, what were the limitations by which these
extensive powers of the Proetor were restrained?
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 Prator, it should be recollected,
was a jurisconsult himself, or a person entirely in the
hands of advisers who were jurisconsults, and it is
probable that every Roman lawyer waited impatiently
for the time when he should fill or control the great
judicial magistracy. In the interval, his tastes, feelings, prejudices, and degree of enlightenment were
inevitably those of his own order, and the qualifications 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 woolsack the same qualifications. It is certain when he




CHAP. III.  RESTRAINTS ON THE PROETOR.        65
assumes office that he will have, to some extent, modified the law before he leaves it; but until he has
quitted his seat, and the series of his decisions in the
Law Reports has been completed, we cannot discover
how far he has elucidated or added to the principles
which his predecessors bequeathed to him. The influence of the Praetor on Roman jurisprudence differed
only in respect of the period at which its amount was
ascertained. As was before stated, he was in office
but for a year, and his decisions rendered during his
year, though of course irreversible as regarded the
litigants, were of no ulterior value. The most natural moment for declaring the changes he proposed to
effect, occurred therefore at his entrance on the praetorship; and hence, when commencing his duties, he
did openly and avowedly that which in the end his
English representative does insensibly and sometimes
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 Prator, no less than the English Chancellor,
was kept within the narrowest bounds by the prepossessions imbibed from early training, and by the
strong restraints of professional opinion, restraints
of which the stringency can only be appreciated by
those who have personally experienced them. It
may be added that the lines within which movement is
F




66                   EQUITY.              CHAP. III.
permitted, and beyond which there is to be no travelling, were chalked with as much distinctness in the
one case as in the other. In England the judge follows the analogies of reported decisions on insulated
groups of facts. At Rome, as the intervention of the
Praetor was at first dictated by simple concern for the
safety of the state, it is likely that in the earliest
times it was proportioned to the difficulty which it
attempted to get rid of. Afterwards, when the taste
for principle had been diffused by the Responses, he no
doubt used the Edict as the means of giving a wider
application to those fundamental principles which he
and the other practising jurisconsults, his contemporaries, believed themselves to have detected underlying the law. Latterly he acted wholly under the
influence of Greek philosophical theories, which at
once tempted him to advance and confined him to a
particular course of progress.
The nature of the measures attributed to Salvius
Julianus has been much disputed. 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 wonderful system which they built up survives in the




CHAP. III.        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 subject of a jurisconsult of this epoch, he may always
be called an expositor of Equity. The principles
of the Edict had, before the epoch of its cessation,
made their way into every part of Roman jurisprudence. The Equity of Rome, it should be understood,
even when most distinct from the Civil Law, was
always administered by the same tribunals.   The
Praotor 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 Prator's court began to
apply it in place of or by the side of the old rule of
the Civil Law, which was thus directly or indirectly
repealed without any express enactment of the legislature.  The result, of course, fell considerably short
of a complete fusion of law and equity, which was not
carried out till the reforms of Justinian.  The technical severance of the two elements of jurisprudence
entailed some confusion and some inconvenience,
and there were certain of the stubborner doctrines
of the Civil Law with which neither the authors
nor the expositors of the Edict had ventured to interfere. But at the same time there was no corner
of the field of jurisprudence which was not more or
less swept over by the influence of Equity. It supF 2




68                    EQUITY.             CHAP. II.
plied the jurist with all his materials for generalisation, with all his methods of interpretation, with
his elucidations of first principles, and with that
great mass of limiting rules which are rarely interfered with by the legislator, but which seriously
control the application of every legislative act.
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 commentaries and partly by direct legislation. But in
the reign of Alexander Severus the power of growth
in Roman Equity seems to be exhausted, and the succession of jurisconsults comes to a close.  The remaining history of the Roman law is the history of the
imperial constitutions, and, at the last, of attempts to
codify what had now become the unwieldy body of
Roman jurisprudence. We have the latest and most
celebrated experiment of this kind in the Corpus Juris
of Justinian.
It would be wearisome to enter on a detailed comparison or contrast of English and Roman Equity;
but it may be worth while to mention two features
which they have in common.      The first may be
stated as follows. Each of them   tended, and all
such systems tend, to exactly the same state in
which the old common law was when Equity first
interfered with it. A time always comes at which




CHAP. nI.   ENGLISH AND ROMAN EQUITY.         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 Rome in the reign
of Alexander Severus; after which, though the
whole Roman world was undergoing a moral revolution, the Equity of Rome ceased to expand.  The
same point of legal history was attained in England under the chancellorship of Lord Eldon, the
first of our equity judges who, instead of enlarging the jurisprudence of his court by indirect
legislation, devoted himself through life to explaining and harmonising it.  If the philosophy of legal
history were better understood in England, Lord
Eldon's services would be less exaggerated on the
one hand and better appreciated on the other than
they appear to be among contemporary lawyers.
Other misapprehensions, too, which bear some practical fruit, would perhaps be avoided. It is easily
seen by English lawyers that English Equity is' a
system founded on moral rules; but it is forgotten
that these rules are the morality of past centuriesnot of the present-that they have received nearly
as much application as they are capable of, and that,
though of course they do not differ largely from the
ethical creed of our own day, they are not necessarily




70                    EQUITY.             CHAP. 1IT.
on a level with it. The imperfect theories of the
subject which are commonly adopted have generated
errors of opposite sorts. Many writers of treatises
on Equity, struck with the completeness of the system
in its present state, commit themselves expressly
or implicitly to the paradoxical assertion that the
founders of the chancery jurisprudence contemplated its present fixity of. form when they were
settling its first basis. Others, again, complainand 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 common law by the fathers of English equity.  But this
is to invert the order of the agencies by which the
improvement of the law is carried on.  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.
Another remarkable characteristic of both Englislt
and Roman Equity is the falsehood of the assumptions upon which the claim of the equitable to superiority over the legal rule is originally defended.
Nothing is more distasteful to men, either as individuals or as masses, than the admission of their




CHAP. III.  ENGLISH AND ROMAN EQUITY.        71
moral progress as a substantive reality. This unwillingness shows itself, as regards individuals, in the
exaggerated respect which is ordinarily paid to the
doubtful virtue of 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 disinclination to accept it as a primary phenomenon, and
it is commonly explained as the recovery of a lost
perfection-the gradual return to a state from which
the race has lapsed. This tendency to look backward instead of forward for the goal of moral progress produced anciently, as we have seen, on Roman
jurisprudence effects the most serious and permanent. The Roman jurisconsults, in order to account
for the improvement of their jurisprudence by the
Praetor, borrowed from Greece the doctrine of a
Natural state of man-a Natural society-anterior
to the 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.             CHAP. III.
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 English constitution
rendered such a theory unpalatable after a time;
but as the jurisdiction of the Chancery was then
firmly established, it was not worth while to devise
any formal substitute for it.  The theories found
in modern 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.




CHAP. IV.       LAW OF NATURE.               73
CHAPTER IV.
THE MODERN HISTORY OF THE LAW OF NATURE.
It will be inferred from  what has been said that
the theory which transformed the Roman jurisprudence had no claim to philosophical precision. It
involved in fact, one of those "mixed modes of
thought" which are now    acknowledged to have
characterized all but the highest minds during the
infancy of speculation, and which are far from undiscoverable even in the mental efforts of our own
day. The Law of Nature confused the Past and the
Present. Logically, it implied a state of Nature
which had once been regulated by natural law; yet
the jurisconsults do not speak clearly or confidently
of the existence of such a state, which indeed is little
noticed by the ancients except where it finds a
poetical expression in the fancy of a golden age.
Natural law, for all practical purposes, was something 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




7IF      MODERN HISTORY OF NATURAL LAW. CHAP. IV,
from the gross ingredients with which they were mingled was a sense of simplicity and harmony; yet it
was not on account of their simplicity and harmony
that these finer elements were primarily respected, but
on the score of their descent from the aboriginal reign
of Nature. This confusion has not been successfully
explained away by the modern disciples of the jurisconsults, and in truth modern speculations on the
Law of Nature betray much more indistinctness of
perception and are vitiated by much more hopeless
ambiguity of language than the Roman lawyers can
be justly charged with. There are some writers on
the subject who attempt to evade the fundamental
difficulty by contending that the code of Nature
exists in the future and is the goal to which all civil
Laws are moving, but this is to reverse the assumptions on which the old theory rested, or rather
perhaps to mix together two inconsistent theories.
The tendency to look not to the past but to the future
for types of perfection was brought into the world
by Christianity. Ancient literature gives few or
no hints of a belief that the progress of society is
necessarily from worse to better.
But the importance of this theory to mankind has
been very much greater than its philosophical deficiencies 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




CHAP. IV.    PERILS OF EARLY SOCIETY.         75
belief in a law natural had not become universal in
the ancient world.
There are two special dangers to which law, and
society which is held together by law, appear to be
liable in their infancy. One of them is that law
may be too rapidly developed. This occurred with
the codes of the more progressive Greek communities,
which disembarrassed themselves with astonishing
facility from cumbrous forms of procedure and
needless terms of art, and soon ceased to attach any
superstitious value to rigid rules and prescriptions.
It was not for the ultimate advantage of mankind
that they did so, though the immediate benefit conferred on their citizens may have been considerable.
One of the rarest qualities of national character is
the capacity for applying and working out the law,
as such, at the cost of constant miscarriages of
abstract justice, without at the same time losing
the hope or the wish that law may be conformed
to a higher ideal. The Greek intellect, with all
its 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, the Greek tribunals exhibited the strongest
tendency to confound law and fact. The remains
of the Orators and the forensic commonplaces preserved by Aristotle in his Treatise on Rhetoric, show




76      NATURAL LAW OF THE JURISCONSULTS. ciAP. 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 on the facts of particular
cases, would only, if it bequeathed any body of
judicial principles to posterity, bequeath one consisting of the ideas of right and wrong which happened to be prevalent at the time. Such a jurisprudence would contain no framework to which the
more advanced conceptions of subsequent ages could
be fitted. It would amount at best to a philosophy,
marked with the imperfections of the civilisation
under which it grew up.
Few national societies have had their jurisprudence menaced by this peculiar danger of precocious
maturity and untimely disintegration. It is certainly doubtful whether the Romans were ever
seriously threatened by it, but at any rate they had
adequate protection in their theory of Natural Law.
For the Natural Law of the jurisconsults was distinctly conceived by them as a system which ought
gradually to absorb civil laws, without superseding
them so long as they remained unrepealed. There
was no such impression of its sanctity abroad, that
an appeal to it would be likely to overpower the




CHAP. IV.       LAW OF NATURE.               77
mind of a judge who was charged with the superintendence 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.
The notion was that it underlay existing law and
must be looked for through it. Its functions were
in short remedial, not revolutionary or anarchical.
And this, unfortunately, is the exact point at which
the modern view of a Law of Nature has often ceased
to resemble the ancient.
The other liability to which the infancy of society
is exposed has prevented or arrested the progress of
far the greater part of mankind. The rigidity of
primitive law, arising chiefly from its early association and identification with religion, has chained
down the mass of the human race to those views
of life and conduct which they entertained at the
time when their usages were first consolidated into
a systematic form. There were one or two races




78          HISTORY OF LAW OF NATURE.     CHAP. IV.
exempted by a marvellous fate from this calamity,
and grafts from these stocks have fertilised a few
modern societies; but it is still true that, over the
larger part of the world, the perfection of law has
always been considered as consisting in adherence to
the 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 conclusions it could build on ancient texts, without discoverable departure from their literal tenour. I know
no reason why the law of the Romans should be superior to the laws of the Hindoos, unless the theory
of Natural Law  had given it a type of excellence
different from the usual one. In this one exceptional
instance, simplicity and symmetry were kept before
the eyes of a society whose influence on mankind was
destined to be prodigious from other causes, as the
characteristics of an ideal and absolutely perfect law.
It is impossible to overrate the importance to a nation
or profession of having a 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. IV          BENTHAMISM.                 79
human reason, but they acted as if they believed it
for want of any other principle to proceed upon.
Bentham  made the good of the community take
precedence of every other object, and thus gave
escape to a current which had long been trying to
find its way outwards.
It is not an altogether fanciful comparison if we
call the assumptions we have been describing the
ancient counterpart of Benthamism. The Roman
theory guided men's efforts in the same direction
as the theory put into shape by the Englishman; its
practical results were not widely different from those
which would have been attained by a sect of lawreformers who maintained a steady pursuit of the
general good of the community. It would be a
mistake, however, to suppose it a conscious anticipation of Bentharn'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 " elegance "-that the Roman jurisconsults freely surrendered themselves. The coincidence of their labours




80          HISTORY OF LAW OF NATURE.      CHaE. Iv.
with those which a more precise philosophy would
have counselled has been part of the good fortune
of mankind.
Turning to the modern history of the law of nature,
we find it easier to convince ourselves of the vastness of its influence than to pronounce confidently
whether that influence has been exerted for good or
for evil. The doctrines and institutions which may
be attributed to it are the material of some of the
most violent controversies debated in our time, as
will be seen when it is stated that the theory of
Natural Law is the source of almost all the special
ideas as to law, politics, and society which France
during the last hundred years has been the instrument of diffusing over the western world. The part
played by jurists in French history, and the sphere
of jural conceptions in French thought, have always
been remarkably large. It was not indeed in France,
but in Italy, that the juridical science of modern
Europe took its rise, but of the schools founded by
emissaries of the Italian universities in all parts of
the Continent, and attempted (though vainly) to be
set up in our island, that established in France produced the greatest effect on the fortunes of the country.
The lawyers of France immediately formed a strict
alliance with the kings of the houses of Capet and
Valois, and it was as much through their assertions of
royal prerogative, and through their interpretations of
the rules of feudal succession, as by the power of the




CHAP. Iv.    THE FRENCH LAWYERS.            81
sword that the French monarchy at last grew together out of the agglomeration of provinces and
dependencies. The enormous advantage which their
understanding with the lawyers conferred on the
French kings in the prosecution of their struggle
with the great feudatories, the aristocracy and the
Church, can only be appreciated if we take into
account the ideas which prevailed in Europe far down
into the middle ages. There was, in the first place,
a great enthusiasm for generalisation and a curious
admiration for all general propositions, and consequently, in the field of law, an involuntary reverence
for every general formula which seemed to embrace
and sum up a number of the insulated rules which
were practised as usages in various localities. Such
general formulas it was, of course, not difficult for
practitioners familiar with the Corpus Juris or the
Glosses to supply in almost any quantity. There was,
however, another cause which added yet more considerably to the lawyers' power. At the period of
which we are speaking, there was universal vagueness
of ideas as to the degree and nature of the authority
residing in written texts of law. For the most part
the peremptory preface, Ita scriptum est, seems to
have been sufficient to silence all 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        HISTORY OF LAW OF NATURE.      CHAP. IV.
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 counterproposition from the Pandects or the Canon Law. It
is extremely necessary to bear in mind the uncertainty of men's notions on this most important side
of juridical controversies, not only because it helps to
explain the weight which the lawyers threw into the
monarchical scale, but on account of the light which
it sheds on several curious historical problems. The
motives of the author of the Forged Decretals and
his extraordinary success are rendered more intelligible by it. And to take a phenomenon of smaller
interest, it assists us, though only partially, to understand the plagiarisms of Bracton. That an English
writer of the time of Henry III. should have been
able to put off on his countrymen as a compendium
of pure English law a treatise of which the entire
form and a third of the contents were directly borrowed from the Corpus Juris, and that he should have
ventured on this experiment in a country where the
systematic study of the Roman Law was formally
proscribed, will always be among the most hopeless
enigmas in the history of jurisprudence; but still it
is something to lessen our surprise when we comprehend the state of opinion at the period as to the
obligatory force of written texts, apart from all consideration of the source whence they were derived.




CHAP. IV.     THE FRENCH LAWYERS.             83
When the kings of France had brought their long
struggle for supremacy to a successful close, an epoch
which may be placed roughly at the accession of the
branch of Valois-Angouleme to the throne, the situation of the French jurists was peculiar, and continued
to be so down to the outbreak of the 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 all 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 opposite poles of Cujas and Montesquieu, of D'Aguesseau
and Dumoulin. But, on the other hand, the system
of laws which they had to administer stood in striking
contrast with the habits of mind which they had cultivated. The France which had been in great part
constituted by their efforts was smitten with the
G 2




84        HISTORY OF LAW OF NATURE,      CHAP. IV.
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 Coutunier, 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 expression, 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
municipality, in the nature of its customs. In the
Pays de Droit Ecrit the stratum  of feudal rules
which overlay the Roman law was of the most miscellaneous 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. IV.     THE FRENCH LAWYERS.              85
which it produced on the minds of the French
lawyers.  Their speculative opinions and their intellectual bias were in the strongest opposition to their
interests and professional habits. With the keenest
sense and the fullest recognition of those perfections
of jurisprudence which consist in simplicity and
uniformity, they 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 improvement, and did not
directly threaten any venerable or lucrative technicality. Natural law may be said to have become the
common law of France, or, at all events, the admission of its dignity and claims was the one tenet which
all French practitioners alike subscribed to. The language of the pre 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 of the pure Roman law,




86          HISTORY OF LAW OF NATURE.    CHAP. IV.
speak even more fervidly of Nature and her rules
than the civilians who professed an exclusive respect
for the Digest and the Code. Dumoulin, the highest
of all authorities on old French Customary Law, has
some extravagant passages on the Law of Nature;
and his panegyrics have a peculiar rhetorical turn
which indicates a considerable departure from the
caution of the 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 transformation 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 possibly have been an abatement of the respect which it
commanded; for by this time the Esprit des Lois had
appeared. Bearing in some exaggerations the marks
of the excessive violence with which its author's
mind had recoiled from assumptions usually suffered
to pass without scrutiny, yet showing in some ambiguities the traces of a desire to compromise with
existing prejudice, the book of Montesquieu, with all
its defects, still proceeded on that Historical Method




CHAP. IV.           ROUSSEAU.                 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 popularity; but, in fact, it was never allowed time to
put it forth, for the counter-hypothesis which it
seemed destined to destroy passed suddenly from
the forum to the street, and became the key-note
of controversies far more exciting than are ever
agitated in the courts or the schools. The person
who launched it on its new career was that remarkable man who, without learning, with few virtues,
and with no strength of character, has nevertheless
stamped himself ineffaceably on history by the force
of a vivid imagination, and by the help of a genuine
and burning love for his fellow-men, for which much
will always have to be forgiven him. We have
never seen in our own generation-indeed the world
has not seen more than once or twice in all the
course of history-a literature which has exercised
such prodigious influence over the minds of men,
over every cast and shade of intellect, as that which
emanated from  Rousseau between 1749 and 1762.
It was the first attempt to re-erect the edifice of
human belief after the purely iconoclastic efforts
commenced by Bayle, and in part by our own Locke,
and consummated by Voltaire; and besides the superiority which every constructive effort will always
enjoy over one that is merely destructive, it possessed




88         HISTORY OF LAW OF NATURE.     CHAP. IV.
the immense advantage of appearing amid an all
but universal scepticism as to the soundness of all
foregone knowledge in matters speculative. Now, in
all the speculations of Rousseau, the central figure,
whether arrayed in an English dress as the signatary of a social compact, or simply stripped naked of
all historical qualities, is uniformly Man, in a supposed state of nature. Every law   or institution
which would misbeseem this imaginary being under
these ideal 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 phantasmagoria with which the Natural Condition is
peopled, every feature and characteristic eludes the
mind except the simplicity and harmony which possessed such charms for 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. TY.     THEORIES OF ROUSSEAU.           89
affirmed. Rousseau's belief was that a perfect social
order could be evolved from the unassisted consideration of the natural state, a social order wholly irrespective of the actual condition of the world and
wholly unlike it. The great difference between the
views is that one bitterly and broadly condemns the
present for its 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 particularity that philosophy of politics, art, education,
ethics, and social relations which was constructed on
the basis of a state of nature. It still possesses
singular fascination for the looser thinkers of every
country, and is no doubt the parent, more or less
remote, of almost all the prepossessions which impede the employment of the Historical Method of inquiry, but its discredit with the higher minds of our
day is deep enough to astonish those who are familiar
with the extraordinary vitality of speculative error.
Perhaps the question most frequently asked nowadays is not what is the value of these opinions, but
what were the causes which gave them such overshadowing prominence a hundred years ago.   The
answer is, I conceive, a simple one. The study which
in the last century would best have corrected the
misapprehensions into which an exclusive attention to legal antiquities is apt to betray was the




90          HISTORY OF LAW OF NATURE.     CHAP. IV.
study of religion. But Greek religion, as then understood, was dissipated in imaginative myths.  The
Oriental religions, if noticed at all, appeared to be
lost in vain 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
all, of those of the Hebrew race. It is well known
that it was a point of honour with the reasoners of
that day to assume not merely that the institutions
called after Moses were not divinely dictated, nor
even that they were codified at a later date than that
attributed to them, but that they and the entire
Pentateuch were a gratuitous forgery, executed after
the return from the Captivity.  Debarred, therefore,
from one chief security against 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 founded on the hypothesis of a state of nature has fallen low in general
esteem, in so far as it is looked upon under its coarser
and more palpable aspect, it does not follow that in
its subtler disguises it has lost plausibility, popu



CHAP. IV.    THE FRENCH REVOLUTION.          91
larity, or power. I believe, as I have said, that it is
still the great antagonist of the Historical Method;
and whenever (religious objections apart) any mind
is seen to resist or contemn that mode of investigation, it will generally be found under the influence
of a prejudice or vicious bias traceable to a conscious
or unconscious reliance on a non-historic, naturalcondition of society or the individual.  It is chiefly,
however, by allying themselves with political and
social tendencies that the doctrines of Nature and
her law have preserved their energy. Some of these
tendencies they have stimulated, others they have
actually created, to a great number they have given
expression and form.   They visibly enter largely
into the ideas which constantly radiate from France
over the civilised world, and thus become part of the
general body of thought by which its civilisation is
modified. The value of the influence which they
thus exercise over the fortunes of the race is of course
one of the points which our age debates most warmly,
and it is beside the purpose of this treatise to discuss
it. Looking back, however, to the period at which
the theory of the state of nature acquired the maximum of political importance, there are few who will
deny that it helped most powerfully to bring about
the grosser disappointments of which the first
French Revolution was fertile. It gave birth, or
intense stimulus, to the vices of mental habit all but




92         HISTORY OF LAW OF NATURE.      CHAP. Iv,
universal at the time, disdain of positive law, impatience 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
thought less than others and fortified themselves with
smaller observation, its tendency is to become distinctly anarchical. It is surprising to note how
many of the Sophzismes 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 transformation, and are unintelligible unless referred to it.
On this point too it is a curious exercise to consult
the Moniteur during the principal eras of the Revolution.  The appeals to the Law and State of Nature
become thicker as the times grow darker.
There is a single example which very strikingly
illustrates the effects of the theory of natural law on
modern society, and indicates how very far are those
effects from being exhausted.  There cannot, I conceive, be any question that to the assumption of a
Law Natural we owe the doctrine of the fundamental
equality of human beings. That " all men are equal"
is one of a large number of legal propositions which
in progress of time have become political. The Roman jurisconsults of the Antonine era lay down that
" omnes homines natura oequales sunt," but in their
eyes this is a strictly juridical axiom.  They intend




CHAP. rT.       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 Cognate. The jurisconsults who thus expressed themselves
most certainly never intended to censure the social
arrangements under which civil law fell somewhat
short of its speculative type; nor did they apparently
believe that the world would ever see human society
completely assimilated to the economy of nature.
But when the doctrine of human equality makes its
appearance in a modern dress it has evidently clothed
itself with a new shade of meaning. Where the Roman jurisconsult had written " mquales sunt," meaning exactly what he said, the modern civilian wrote
" all men are equal" in the sense of " all men ought
to be equal." The peculiar Roman idea that natural law coexisted with civil law and gradually absorbed it, had evidently been lost sight of, or had
become unintelligible, and the words which had at
most conveyed a theory concerning the origin, com



04         HISTORY OF LAW OF NATURE.     CHAP. IV.
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 fourtee  nth century, the current language concerning the birth-state of men, though visibly intended
to be identical with that of Ulpian and his contemporaries, has assumed an altogether different form and
meaning. The preamble to the celebrated ordinance
of King Louis Hutin, enfranchising the serfs of the
royal domains, would have sounded strangely to
Roman ears. " Whereas, according to 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 peradventure by reason of the misdeeds of their predecessors, many persons of our common people have
fallen into servitude, therefore, We," &c. This is the
enunciation not of a legal rule but of a political
dogma; and from this time the equality of men is
spoken of by the French lawyers just as if it were a
political truth which happened to have been preserved
among the archives of their science. Like all other
deductions from the hypothesis of a Law Natural, and
like the belief itself in a Law of Nature, it was languidly assented to and suffered to have little influence
on opinion and practice until 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 INDEPENDENCE.      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
chiefly from that of their English contemporaries in
including much which could only have been derived
from the legal literature of continental Europe. A
very few glances at the writings of Jefferson will show
how strongly his mind was affected by the semi-juridical, semi-popular opinions which were fashionable in
France, and we cannot doubt that it was sympathy
with the peculiar ideas of the French jurists which
led him and the other colonial lawyers who guided
the course of events in America to join the specially
French assumption that " all men are born equal"
with the assumption, more familiar to Englishmen,
that all men are born free, in the very first lines
of their Declaration of Independence. The passage
was one of great importance to the history of the
doctrine before us. The American lawyers, in thus
prominently and emphatically affirming the fundamental equality of human beings, gave an impulse to political movements in their own country,




96          HISTORY OF LAW OF NATURE.     CHAP. IV.
and in a less degree in Great Britain, which is far
from having yet spent itself; but besides this they
returned the dogma they had adopted to its home in
France, endowed with vastly greater energy and enjoying much greater claims on general reception and
respect. Even the more cautious politicians of the first
Constituent Assembly repeated Ulpian's proposition
as if it at once commended itself to the instincts and
intuitions of mankind; and of all the "principles of
1789 " it is the one which has been least strenuously
assailed, which has most thoroughly leavened modern
opinion, and which promises to modify most deeply
the constitution of societies and the politics of states.
The greatest function of the Law of Nature was
discharged in giving birth to modern International
Law and to the modern Law of War, but this part
of its effects must here be dismissed with consideration very unequal to its importance.
Among the postulates which form the foundation
of International Law, or of so much of it as retains
the figure which it received from its original architects, there are two or three of pre-eminent importance. The first of all is expressed in the position
that there is a determinable Law of Nature. Grotius and his successors took the assumption directly
from the Romans, but they differed widely from
the Roman jurisconsults and from each other in
their ideas as to the mode of determination. The




CHAP. 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 law, 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, consisting of fragments of ideas derived from nearly
every theory of ethics which has in its turn taken
possession of the schools. Yet it is a remarkable
proof of the essentially historical character of the
conception that, after all the efforts which have been
made to evolve the code of Nature from the necessary
characteristics of the natural state, so much of the
result is just what it would have been if men had
been satisfied to adopt the dicta of the Roman
lawyers without questioning or reviewing them.
Setting aside the Conventional or Treaty Law  of
Nations, it is surprising how large a part of the
system is made up of pure Roman law. Wherever
there is a doctrine of the jurisconsults affirmed by
them to be in harmony with the Jus Gentium, the
Publicists have found a reason for borrowing it,
however plainly it may bear the marks of a distinctively Roman origin. We may observe too that the
derivative theories are afflicted 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




98         HISTORY OF LAW OF NATURE.     CHAP. IV.
always to discover whether they are discussing law
or morality-whether the state of international relations they describe is actual or ideal-whether
they lay down that which is, or that which, in their
opinion, ought to be.
The assumption that Natural Law is binding on
states inter se is the next in rank of those which
underlie International Law. A series of assertions or
admissions of this principle may be traced up to the
very infancy of modern juridical science, and at first
sight it seems a direct inference from the teaching of
the Romans. The civil condition of society being
distinguished from the natural by the fact that in the
first there is a distinct author of law, while in the
last there is none, it appears as if the moment a
number of units were acknowledged to obey no common sovereign or political superior they were thrown
back on the ulterior behests of the Law Natural.
States are such units; the hypothesis of their independence excludes the notion of a common lawgiver,
and draws with it, therefore, according to a certain
range of ideas, the notion of subjection to the primeval
order of nature. The alternative is to consider independent communities as not related to each other
by any law, but this condition of lawlessness is exactly the vacuum which the Nature of the jurisconsuits abhorred. There is certainly apparent reason
for thinking that if the mind of a Roman lawyer
rested on any sphere from   which civil law  was




CHAP. IV.     INTERNATIONAL LAW.             99
banished, it would instantly fill the void with the
ordinances of Nature. It is never safe, however, to
assume that conclusions, however certain and immediate in our own eyes, were actually drawn at
any period of history. No passage has ever been adduced from the remains of Roman law which, in my
judgment, proves the jurisconsults to have believed
natural law to have obligatory force between independent commonwealths; and we cannot but see that
to citizens of the Roman empire, who regarded their
sovereign's dominions as conterminous with civilisation, 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 modern International Law,
undoubted as is its descent from Roman law, is only
connected with it by an irregular filiation. The early
modern interpreters of the jurisprudence of Rome,
misconceiving the meaning of Jus Gentium, assumed
without 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 competitors to strive with, and the condition of Europe
was long such as to preclude its universal reception.
Gradually, however, the western world arranged itself
in a form more favourable to the theory of the
civilians; circumstances destroyed the credit of rival
H 2




100         HISTORY OF LAW OF NATURE.   CHAP, IV.
doctrines; and at last, at a peculiarly felicitous conjuncture, Ayala and Grotius were able to obtain for it
the enthusiastic assent of Europe, an assent which has
been over and over again renewed in every variety of
solemn 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 unquestionable that in the course of this displacement
they altered much of its structure, though far less
of it than is commonly supposed. Having adopted
from the Antonine jurisconsults the position that the
Jus Gentium and the Jus Naturoe were identical,
Grotius, with his immediate predecessors and his immediate successors, attributed to the Law of Nature
an authority which would never perhaps have been
claimed for it, if " Law of Nations " had not in that
age been an ambiguous expression.  They laid down
unreservedly that Natural Law is the code of states,
and thus put in operation a process which has continued almost down to our own day, the process of
engrafting on the international system rules which
are supposed to have been evolved from the unassisted contemplation of the conception of Nature.
There is, too, one consequence of immense practical
importance to mankind which, though not unknown
during the early modern history of Europe, was
never clearly or universally acknowledged till the
doctrines of the Grotian school had prevailed. If




CHAP. IV.      INTERNATIONAL LAW.            101
the society of nations is governed by Natural Law,
the atoms which compose it must be absolutely equal.
Men under the sceptre of Nature are all equal, and
accordingly commonwealths are equal if the international state be one of nature.  The proposition
that independent communities, however different in
size and power, are all equal in the 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 all if International Law
had not been entirely derived from  the majestic
claims of Nature by the Publicists who wrote after
the revival of letters.
On the whole, however, it is astonishing, as 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 moderate the wars in which it too frequently results, are
merely transcribed from the part of the Roman Law
which treats of the modes of acquiring property jure
gentium. These modes of acquisition were obtained
by the elder jurisconsults, as I have attempted to




102         HISTORY OF LAW OF NATURE.     CHAP. IV.
explain, by abstracting a common ingredient from
the usages observed to prevail among the various
tribes surrounding Rome; and, having been classed
on account of their origin in the "law common to
all nations," they were thought by the later lawyers
to fit in, on the score of their simplicity, with the
more recent conception of a Law Natural.  They thus
made their way into the modern Law of Nations, and
the result is that those parts of the international
system which refer to dominion, its nature, its limitations, the modes of acquiring and securing it, are
pure Roman Property Law-so much, that is to say,
of the Roman Law of Property as the Antonine jurisconsults 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 each
other like the members of a group of Roman proprietors. 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 subscribed to during the first centuries of modern
European history.   It 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 " sovereigns infer se are to be deemed not paramount, but
absolute, owners of the state's territory."




CHAP. Iv.      INTERNATIONAL LAW.            103
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 international theory, is altogether untenable so far as
regards a large part of modern history. It is not
true that the authority of the Jus Gentium in the
concerns of nations was always uncontradicted; on
the contrary, it had to struggle long against the
claims of several competing systems. It is again
not true that the territorial character of sovereignty
was always recognised, for long after the dissolution
of the Roman dominion the minds of men were
under the empire of ideas irreconcileable with such
a conception. An old order of things, and of views
founded on it, had to decay-a new Europe, and
an apparatus of new notions congenial to it, had to
spring up-before two of the chiefest postulates
of International Law could be universally conceded.
It is a consideration well worthy to be kept in
view, that during a large part of what we usually
term modern history no such conception was entertained as that of " territorial sovereignty."  Sovereignty was not associated with dominion over a
portion or subdivision of the earth. The world had




104        HISTORY OF LAW OF NATURE.     CHAP. TV.
lain for so many centuries under the shadow of
Imperial Rome as to have forgotten that distribution of the vast spaces comprised in the Empire
which had once parcelled them out into a number of
independent commonwealths, claiming immunity from
extrinsic interference, and pretending to equality of
national rights. After the subsidence of the barbarian irruptions, the notion of sovereignty that
prevailed seems to have been twofold. On the one
hand it assumed the form of what may be called
" tribe-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. They
appear to have retained the traditions which they
brought with them from the forest and the steppe,
and to have still been in their own view a patriarchal
society, a nomad horde, merely encamped for the time
upon the soil which afforded them sustenance. Part
of Transalpine Gaul, with part of Germany, had now
become the country de facto occupied by the Franks
-it was France; but the Merovingian line of chieftains, the descendants of Clovis, were not Kings of
France, they were Kings of the Franks. Territorial
titles were not unknown, but they seem at first to




CHPI. v.    TERRITORIAL SOVEREIGNTY.        105
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. The alternative to this peculiar notion of sovereignty appears
to have been-and this is the important point-the
idea of universal dominion. When a monarch departed from the special relation of chief to clansmen, and became solicitous, for purposes of his own,
to invest himself with a novel form of sovereignty,
the precedent which suggested itself for his adoption
was the domination of the Emperors of Rome. To
parody a common quotation, he became " aut Ycesar
ant nullus."  Either he pretended to the full prerogative of the Byzantine Emperor, or he had no
political status. In our own age, when a new dynasty
is desirous of obliterating the prescriptive title of a
deposed line of sovereigns, it takes its designation
from the people, instead of the territory. Thus we
have Emperors and Kings of the French, and a King
of the Belgians. At the period of which we have
been speaking, under similar circumstances, a different alternative presented itself. The Chieftain who
would no longer call himself King of the tribe
must claim to be Emperor of the world. Thus,
when the hereditary Mayors of the Palace had
ceased to compromise with the monarchs they had
long since virtually dethroned, they soon became




106        HISTORY OF LAW OF NATURE.     CHAP. IV.
unwilling to call themselves merely Kings of the
Franks, a title which belonged to the displaced
Merovings; but they could not style themselves
Kings of France, for such a designation, though apparently not unknown, was not a title of dignity.
Accordingly they came forward as aspirants to
universal empire. Their motive has been greatly
misapprehended.  It has been taken for granted by
recent French writers that 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 offshoot, though a tardy
one, of feudalism. This might have been expected a
priori, for it was feudalism which for the first time




CHAP. IV.    TERRITORIAL 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, till
we approximate to the apex of the system. Where
that summit exactly was during the later portion
of the dark ages it is not easy to decide. Probably,
wherever the conception of tribe sovereignty had
really decayed, the topmost point was always assigned
to the supposed successor of the Caesars of the West.
But before long, when the actual sphere of Imperial
authority had immensely contracted, and when the
emperors had concentrated the scanty remains of
their power upon Germany and North Italy, the
highest feudal superiors in all the outlying portions
of the former Carlovingian empire found themselves
practically without a supreme head. Gradually they
habituated themselves to the new situation, and the
fact of immunity put at last out of sight the theory
of dependence; but there are many 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        HISTORY OF LAW OF NATURE.      CHAP. IV.
tendency to attribute secular superiority to the See of
Rome. The completion of the first stage in the revolution of opinion is marked, of course, by the accession
of the Capetian dynasty in France. Before that
epoch arrived, several of the holders of the great
territorial fiefs into which the Carlovingian empire
was now split up, had begun to call themselves
Kings, instead of Dukes or Counts; but the important change occurred when the feudal prince of a
limited territory surrounding Paris, usurped from the
earlier house their dynastic title of Kings of the French.
Hugues Capet and his descendants were kings in
quite a new sense, sovereigns standing in the same
relation to the soil of France as the baron to his
estate, the tenant to his freehold; and the old tribal
appellation, though long retained in the official Latin
style of the reigning house, passed rapidly, in the
vernacular, into Kings of France.  The form of the
monarchy in France had visible effects in hastening
changes which were elsewhere proceeding in the same
direction.  The kingship of our Anglo-Saxon regal
houses was midway between the chieftainship of a
tribe and a territorial supremacy; but the superiority
of the Norman monarchs, imitated from that of the
King of France, was distinctly a territorial sovereignty.
Every subsequent dominion which was established
or consolidated was formed on the later model.
Spain, Naples, and the principalities founded on the




C1,P. 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 commonwealth, governing a number of subject provinces.
Move a century onwards, and you find that it wishes
to be looked upon as a corporate sovereign, claiming
the rights of a feudal suzerain over its possessions in
Italy and the iEgean.
During the period through which the popular ideas
on the subject of sovereignty were undergoing this
remarkable change, the system which stood in the
place of what we now call International Law was
heterogeneous in form and inconsistent in the principles to which it appealed. Over so much of Europe
as was comprised in the Romano-German empire, the
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 jurisprudence of which Camsar was still the centre. This
doctrine was less confidently repudiated in the outlying countries than we might have supposed antece



110        HISTORY OF LAW OF NATURE.      CHAP. IY.
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 decaying during the fifteenth and even the fourteenth
century; and if we closely examine the current pretexts of wars, and the avowed motives of alliances
it will be seen that, step by step with the displacement of the old principles, the views afterwards harmonised and consolidatedby Ayala and Grotius were
making considerable progress, though it was silent
and but slow. Whether the fusion of all the sources
of authority would ultimately have evolved a system
of international relations, and whether that system
would have exhibited material differences from  the
fabric of Grotius, is not now possible to decide, for
as a matter of fact the Reformation annihilated all
its potential elements except one. Beginning in
Germany, it divided the princes of the empire by a
gulf too broad to be bridged over by the Imperial
supremacy, even if the Imperial superior had stood
neutral.  He, however, was forced to take colour
with the Church against the reformers; the Pope was,
as a matter of course, in the same predicament; and
thus the two authorities to whom belonged the office




CHAP. IV.            GROTIUS.                 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 jurisconsults were supposed to have given their sanction
alone remained standing. The shape, the symmetry,
and the prominence which they assumed in the hands
of Grotius are known to every educated man; but
the great marvel of the Treatise " De Jure 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




112        HISTORY OF LAW OF NATURE.    CHAP. IV.
conception of territorial sovereignty which we have
been discussing. The theory of International Law
assumes that commonwealths are, relatively to each
other, in a state of nature; but the component atoms
of a natural society must, by the fundamental assumption, be insulated and independent of each
other. If there be a higher power connecting them,
however slightly and occasionally, by the claim of
common supremacy, the very conception of a common superior introduces the notion of positive Law,
and excludes the idea of a law natural. It follows,
therefore, that if the universal suzerainty of an Imperial head had been admitted even in bare theory,
the labours of Grotius would have been idle. Nor
is this the only point of junction between modern
public law and those views of sovereignty of which
I have endeavoured to describe the development. I
have said that there are entire departments of international jurisprudence which consist of the Roman
Law of Property. What then is the inference? It
is, that if there had been no such change as I have
described in the estimate of sovereignty-if sovereignty had not been associated with the proprietorship 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 application.




cHAP. v. PRIMITIVE SOCIETY AND ANCIENT LAW.  113
CHAPTER V.
PRIMITIVE SOCIETY AND ANCIENT LAW.
THE necessity of submitting the subject of jurisprudence to scientific treatment has never been entirely
lost sight of in modern times, and the essays which
the consciousness of this necessity has produced
have proceeded from minds of very various calibre,
but there is not much presumption, I think, in asserting that what has hitherto stood in the place of
a science has for the most part been a set of guesses,
those very guesses of the Roman lawyers which were
examined in the two preceding chapters. A series
of explicit statements, recognising and adopting
these conjectural theories of a natural state, and of a
system of principles congenial to it, has been continued with but brief interruption from the days of
their inventors'to our own. They appear in the
annotations of the Glossators who founded modern
jurisprudence, and in the writings of the scholastic
jurists who succeeded them. They are visible in
the dogmas of the canonists.  They are thrust into
prominence by those civilians of marvellous erudition, who flourished at the revival of ancient letters
I




114    PRIMITIVE SOCIETY AND, ANCIENT LAW. CHAP. T.
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 guidance of the student or the practitioner begin with
any discussion of the first principles of law, it
always resolves itself into a restatement of the
Roman hypothesis. It is however from the disguises
with which these conjectures sometimes clothe themselves, quite as much as from their native form, that
we gain an adequate idea of the subtlety with which
they mix themselves in human thought. The Lockeian
theory of the origin of Law in a Social Compact
scarcely conceals its Roman derivation, and indeed is
only the dress by which the ancient views were rendered more attractive to a particular generation of
the moderns; but on the other hand the theory of
Hobbes on the same subject was purposely devised
to repudiate the reality of a law of nature as conceived by the Romans and their disciples.   Yet
these two theories, which long divided the reflecting
politicians of England into hostile camps, resemble
each other strictly in their fundamental assumption
of a non-historic, unverifiable, condition of the race.
Their authors differed as to the characteristics of the
prse-social state, and as to the nature of the abnormal




CnAP. v.          MONTESQUIEU.               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 Romans. If indeed the phenomena of law be regarded in the way in which these theorists regarded
them-that is, as one vast complex whole-it is not
surprising that the mind should often evade the task
it has set to itself by falling back on some ingenious
conjecture which (plausibly interpreted) will seem to
reconcile everything, or else that it should sometimes
abjure in despair the Ibhour of systematization.
From  the theories of jurisprudence which have
the same speculative basis as the Roman doctrine
two of much celebrity must be excepted. The first
of them is that associated with the great name of
Montesquieu.   Though there are some ambiguous
expressions in the early part of the Esprit des Lois,
which seem to show its writer's unwillingness to
break quite openly with the views hitherto popular,
the general drift of the book is certainly to indicate
a very different conception of its subject from any
which had been entertained before. It has often
been noticed that, amidst the vast variety of examples which, in its immense width of survey, it
sweeps together from  supposed systems of jurisi2




116     PRIMITIVE SOCIETY AND ANCIENT LAW. cirar. v.
prudence, there is an   evident anxiety to thrust
into especial prominence those manners and institutions which astonish the civilised reader by their
uncouthness, strangeness, or indecency.   The inference constantly suggested is, that laws are the
creatures of climate, local situation, accident, or imposture-the fruit of any causes except those which
appear to operate with tolerable constancy.  Montesquieu seems, in fact, to have looked on the nature of
man as entirely plastic, as passively reproducing the
impressions, and submitting implicitly to the impulses,
which it receives from without. And here no doubt
lies the error which vitiates his system as a system.
He greatly underrates the stability of human nature.
He pays little or no regard to the inherited qualities
of the race, those qualities which each generation
receives from its predecessors, and transmits but
slightly altered to the generation which follows it.
It is quite true, indeed, that no complete account can
be given of social phenomena, and consequently of
laws, till due allowance has been made for those
modifying causes which are 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 construction, and of those which remain not a few prove the
permanence rather than the variableness of man's




CAlP. v.    MONTESQUIEU AND BENTHAM.         117
nature, 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 resistance it opposes to change is such that, though the
variations of human society in a portion of the world
are plain enough, they are neither so rapid nor so
extensive that their amount, character, and general
direction cannot be ascertained. An approximation
to truth may be all that is attainable with our
present knowledge, but there is no reason for thinking that it is so remote, or (what is the same thing)
that it requires so much future correction, as to be
entirely useless and uninstructive.
The other theory which has been adverted to is,
the historical theory  of Bentham.  This theory
which is obscurely (and, it might even be said,
timidly) propounded in several parts of Bentham's
works is quite distinct from that analysis of the conception of law which he commenced in the " Fragment on Government," and which was more recently
completed by Mr. John Austin. The resolution of a
law into a command of a particular nature, imposed
under special conditions, does not affect to do more
than protect us against a difficulty-a most formidable one certainly-of language. The whole question remains open as to the motives of societies in




118     PRIMITIVE SOCIETY AND ANCIENT LAW. cHAP. v.
imposing these commands on themselves, as to the
connexion of these commands with each other, and
the nature of their dependence on those which preceded them, and which they have superseded. Bentham suggests the answer that societies modify, and
have always modified, their laws according to modifications of their views of general expediency. It is
difficult to say that this proposition is false, but it
certainly appears to be unfruitful. For that which
seems expedient to a society, or rather to the governing part of it, when it alters a rule of law, is
surely the same thing as the object, whatever it may
be, which it has in view when it makes the change.
Expediency and the greatest good are nothing more
than different names for the impulse which prompts
the modification; and when we lay down expediency
as the rule of change in law or opinion, all we get
by the proposition is the 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 all these specula



CHAP. V.     PROPER MODE OF INQUIRY.         119
tions are chargeable, except perhaps those of Montesquieu. They take no account of what law has
actually been at epochs remote from the particular
period at which they mad'e their appearance. Their
originators carefully observed the institutions of their
own age and civilisation, and those of other ages and
civilisations with which they had some degree of
intellectual sympathy, but, when they turned their
attention to archaic states of society which exhibited
much superficial difference from their own, they uniformly ceased to observe and began guessing. The
mistake which they committed is therefore analogous
to the error of one who, in investigating the laws of
the material universe, should commence by contemplating the existing physical world as a whole, instead of beginning with the particles which are its
simplest ingredients.  One does not certainly see
why such a scientific solecism should be more defensible in jurisprudence than in any other region of
thought. It would seem antecedently that we ought
to commence with the simplest social forms in a
state as near as possible to their rudimentary condition. In other words, if we followed the course
usual in such inquiries, we should penetrate as far
up as we could in the history of primitive societies.
The phenomena which early societies present us with
are not easy at first to understand, but the difficulty
of grappling with them bears no proportion to the




120    PRIMITIVE SOCIETY AND ANCIENT LAW. CHAP. V.
perplexities which beset us in considering the baffling
entanglement of modern social organisation.  It is a
difficulty arising from their strangeness and uncouthness, not from 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 rudiments of the social state, so far as they are
known to us at all, are known through testimony of
three sorts-accounts by contemporary observers of
civilisations less advanced than their own, the records which particular races have preserved concerning their primitive history, and ancient law. The first
kind of evidence is the best we could have expected.
As societies do not advance concurrently, but at different rates of progress, there have been epochs at
which men trained to habits of methodical observation have really been in a position to watch and describe the infancy of mankind. Tacitus made the most
of such an opportunity; but the Germany, unlike
most celebrated classical books, has not induced others
to follow the excellent example set by its author, and




CHAP. v.    THE GERMANY OF TACITUS.          121
the amount of this sort of testimony which we possess is exceedingly small. The lofty contempt which
a civilised people entertains for barbarous neighbours
has caused a remarkable negligence in observing
them, and this carelessness has been aggravated at
times by fear, by religious prejudice, and even by
the use of these very terms-civilisation and barbarism-which convey to most persons the impression of a difference not merely in degree but in kind.
Even the Germany has been suspected by some
critics of sacrificing fidelity to poignancy of contrast
and 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, whether groundless or rational, do not attach to a great
deal of archaic law. Much of the old law which has
descended to us was preserved merely because it was
old. Those who practised and obeyed it did not
pretend to understand it; and in some cases they
even ridiculed and despised it. They offered no
account of it except that it had come down to them
-from their ancestors. If we confine our attention,
then, to those fragments of ancient institutions which
cannot reasonably be supposed to have been tampered
with, we are able to gain a clear conception of certain




122    PRIMITIVE SOCIETY AND ANCIENT LAW.  CHAP. V.
great characteristics of the society to which they
originally belonged. Advancing a step further, we
can apply our knowledge to systems of law which,
like the Code of 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 affectcd 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 comparative philology.
The effect of the evidence derived from comparative jurisprudence is to establish that view of the
primmeval 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 connexion with Scripture rather militated than otherwise against its reception as a complete theory, since
the majority of the inquirers who till recently addressed themselves with most earnestness to the colligation of social phenomena, were either influenced
by the strongest prejudice against Hebrew antiquities
or by the strongest desire to construct their system




CHAP. v.       SCRIPTURAL ACCOUNTS.          123
without the assistance of religious records. Even now
there is perhaps a disposition to undervalue these
accounts, or rather to decline generalising from them,
as forming part of the traditions of a Semitic people.
It is to be noted, however, that the legal testimony
comes nearly exclusively from the institutions of
societies belonging to the Indo-European stock, the
Romans, 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 Filmer, they fill a whole chapter,
though not a very profitable one, in English literature.  The points which lie on the surface of the
history are these:-The eldest male parent-the
eldest ascendant-is absolutely supreme in his household.  His dominion extends to life and death, and
is as unqualified over his children and their houses as
over his slaves; indeed, the relations of sonship and
serfdom appear to differ in little beyond the higher




124    PRIMITIVE SOCIETY AND ANCIENT LAW.   CHAP. v.
capacity which the child in blood possesses of becoming one day the head of a family himself.   The
flocks and herds of the children are the flocks and
herds of the father, and the possessions of the parent,
which he holds in a representative rather than in
a proprietary character, are equally divided at his
death among his descendants in the first degree, the
eldest 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 fiom the Scriptural 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 commonwealth, 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 characteristics of the situation in which mankind disclose
themselves at the dawn of their history, I should be
satisfied to quote a few verses from the Odyssey of
Homer:
rolatLV a' oJrT' ayopat FpOVX7l00potL O)VTE OiptuoLTE
O Ef.  ClTr t JE EKICaTro
til,, "S-J' &t"Xcl', ouW' aX\\X)lJX' a\XEyo0Vt'.




(CIiP. v.       PRIMITIVE SOCIETY.            125
They have neither assemblies for consultation nor
tlemnistes, but every one exercises jurisdiction over
his wives and his children, and they pay no regard to
one another." These lines are applied to the Cyclops,
and it may not perhaps be an altogether fanciful
idea when I suggest that the Cyclops is Homer's
type of an alien and less advanced civilisation; for
the almost physical loathing which a primitive community feels for men of widely different manners
from its own usually expresses itself by describing
them as monsters, such as giants, or even (which is
almost always the case in Oriental mythology) as
demons.   However that may be, the verses condense
in themselves the sum of the hints which are given
us by legal antiquities. Men are first seen distributed
in perfectly insulated groups, held together by obedience to the parent. Law is the parent's word, but
it is not yet in the condition of those themnistes 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 characterise a despotic father's commands, but that at the
same time, inasmuch as they proceed from a sovereign,
they presuppose a union of family groups in some
wider organisation. The next question is, what is the
nature of this union and the degree of intimacy which




126    PRIMITIVE SOCIETY AND ANCIENT LAW.  CrAP. 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 conjecture.  It is full, in all its provinces, of the clearest
indications that society in primitive times was not
what it is assumed to be at present, a collection of
individuals.  In fact, and in the view of the men
who composed it, it was an aggregation of families.
The contrast may be most forcibly expressed by
saying that the unit of an ancient society was the
Family, of a modern society the individual.   We
must be prepared to find in ancient law all the consequences of this difference.  It is so framed as to
be adjusted to a system  of small independent corporations.  It is therefore scanty, because it is supplemented by the despotic commands of the heads
of households. It is ceremonious, because the transactions to which it pays regard resemble international concerns much more than the quick play of
intetcourse 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 inextinguishable. This view is closely allied to the peculiar aspect under which, in very ancient times, moral




CHAP. v.     EARLY MORAL 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
offences of the group to which the individual belongs.
If the community sins, its guilt is much more than
the sum of the offences committed by its members;
the crime is a corporate act, and extends in its consequences to many more persons than have shared in
its actual perpetration. If, on the other hand, the
individual is conspicuously guilty, it is his children,
his kinsfolk, his tribesmen, or his fellow-citizens who
suffer with him, and sometimes for him. It thus
happens that the ideas of moral responsibility and
retribution often seem to be more clearly realised at
very ancient than at more advanced periods, for, as
the family group is immortal, and its liability to
punishment indefinite, the primitive mind is not perplexed by the questions which become troublesome
as soon as the individual is conceived as altogether
separate from the group. One step in the transition
from 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 punishment, but a liability to the commission of fresh
offences which drew with them a condign retribution;
and thus the responsibility of the family was reconciled




128    PRIMITIVE SOCIETY AND ANCIENT LAW.  CHAP. V.
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 began to exist wherever a family held together instead
of separating at the death of its patriarchal chieftain.
In most of the Greek states and in Rome there
long remained the vestiges of an ascending series of
groups out of which the State was at first constituted.
The Family, House, and Tribe of the Romans may be
taken as tie 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
follow 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 proceeded from one original stock, and even laboured




CHAP. v.       EARLY POLITICAL IDEAS.         129
under an incapacity for comprehending any reason
except this for their holding together in political
union.  The history of political ideas begins, in fact,
with the assumption that kinship in blood is the sole
possible ground of community in political functions;
nor is there any of those subversions of feeling, which
we term emphatically revolutions, so startling and so
complete as the change which is accomplished when
some other principle-such as that, for instance, of
local contiguity-establishes itself for the first time
as the basis of common political action. It may be
affirmed, then, of early commonwealths that their citizens considered all the groups in which they claimed
membership to be founded on common lineage.
What was obviously true of the Family was believed
to be true first of the House, next of 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
K




130    PRIMITIVE SOCIETY AND ANCIENT LAW.  CRAP. v.
adtnitted to, and amalgamated with, the original
brotherhood. Adverting to Rome singly, we perceive
that the primary group, the Family, was being constantly adulterated by the practice of adoption, while
stories seem to have been always current respecting
the exotic extraction of one of the original Tribes, and
concerning a large addition to the Houses made by
one of the early kings. The composition of the state
uniformly assumed to be natural was nevertheless
known to be in great measure artificial.  This conflict between 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 absorbed another, or on what terms any two of them
could, have combined, except those of absolute superiority on one side and absolute subjection on the other.
No doubt, when with our modern ideas we contemplate the union of independent communities, we can
suggest a hundred modes of carrying it out, the
simplest of all being that the individuals comprised
in the coalescing groups shall vote or act together




CHIA. V.       FICTION 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
the same topographical limits was utterly strange and
monstrous to primitive antiquity. The expedient
which in those times commanded favour was that the
incoming population should feign themselves to be
descended from the same stock as the people on
whom they were engrafted; and it is precisely the
good faith of this fiction, and the closeness with
which it seemed to imitate reality, that we cannot
now hope to understand.   One circumstances however, which it is important to recollect, is that the
men who formed the various political groups were
certainly in the habit of meeting together periodically
for the purpose of acknowledging and consecrating
their association by common sacrifices.  Strangers
amalgamated with the brotherhood were doubtless
admitted to these sacrifices; and when that was once
done, we can believe that it seemed equally easy, or
not more difficult, to conceive them as sharing in the
common lineage. The conclusion, then, which is suggested by the evidence is, not that all early societies
were formed by descent from the same ancestor, but
that 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
x 2




132    PRIMITIVE SOCIETY AND ANCIENT LAW.  CHsP. v.
ingredients recombined, it was on the model or principle of an association of kindred. Whatever were the
fact, all thought, language, and law adjusted themselves to the assumption. But though all this seems
to me to be established with reference to the communities with whose records we are acquainted, the
remainder of their history sustains the position before
laid down as to the essentially transient and terminable influence of the most powerful Legal Fictions.
At some point of time-probably as soon as they felt
themselves strong enough to resist extrinsic pressure-all these states ceased to recruit themselves
by factitious extensions of consanguinity. They necessarily, therefore, became Aristocracies, in all cases
where a fresh population from any cause collected
around them which could put in no claim to community of origin.  Their sternness in maintaining the
central principle of a system under which political
rights were attainable on no terms whatever except
connexion in blood, real or artificial, taught their
inferiors another principle, which proved to be endowed with a far higher measure of vitality. This
was the principle of local contiguity, now recognised
everywhere as the condition of community in political 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
tlheory which they vanquished and dethroned.




CHAP. v.       THE ANCIENT FAMILY.            133
The family, then, is the type of an archaic society
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 modern. In
order to reach the ancient conception we must give
to our modern 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 the 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 theoretically amalgamated into a family by their common
descent are practically held together by common obedience to their highest living ascendant, the father,
grandfather, or great-grandfather.  The patriarchal
authority of a chieftain is as necessary an ingredient
in the notion of the family group as the fact (or assumed fact) of its having sprung from his loins; and
hence we must understand that if there be any persons who, however truly included in the brotherhood
by virtue of their blood-relationship, have 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 modern family thus cut
down on one side and extended on the other-which




134     PRIMITIVE SOCIETY AND ANCIENT LAW. CHAP. V.
meets us on the threshold of primitive jurisprudence.
Older, probably, than the State, the Tribe, and the
House, it left traces of itself on private law long after
the House and the Tribe had been forgotten, and long
after consanguinity had ceased to be associated with
the composition of States.  It will be found to have
stamped itself on all the great departments of jurisprudence, and may be detected, I think, as the true
source of many of their most important and most
durable characteristics. At the outset, the peculiarities of law  in its most ancient state lead us
irresistibly to the conclusion that it took- precisely
the same view of the family group which is taken of
individual men by the systems of rights and duties
now prevalent throughout Europe.   There are societies open to our observation at this very moment
whose laws and usages can scarcely be explained
unless they 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 affected by the primitive conception
of the family. In one all-important instance, that oi
the Roman law, the change was effected so slowly,
that from epoch to epoch we can observe the line and
direction which it followed, and can even give some




CHAP. v.       THlE PATRIA POTESTAS.         135
idea of the ultimate result to which it was tending.
And in pursuing this last inquiry we need not suffer ourselves to be stopped by the imaginary barrier
which separates the modern from the ancient world.
For one effect of that mixture of refined Roman law
with primitive barbaric usage, which is known to us
by the deceptive name of feudalism, was to revive
many features of archaic jurisplrudence which had
died out of the Roman world, so that the decornposition 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. Gaius,
writing under the Antonines, describes the institution as distinctively Roman. It is true that, had he
glanced across the Rhine or the Danube to those
tribes of barbarians which were exciting the curiosity
of some among his contemporaries, he would have seen
examples of patriarchal power in its crudest form;
and in the far East a branch of the same ethnical




3   PRIMITIVE SOCIETY AND ANCIENT LAW.  cmAI. v.
stock from which the Romans sprang was repeating
their Patria Potestas in some of its most technical
incidents. But among the races understood to be
comprised within the Roman empire, Gains could
find none which exhibited an institution resembling
the Roman " Power of the Father," except only the
Asiatic Galatse. There are reasons, indeed, as it seems
to me, why the direct authority of the 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 salAe time, if it is natural in the sons to
obey the father, it is equally natural that they should
look to him for superior strength or superior wisdom.
Hence, when societies are placed under circumstances
which cause an especial value to be attached to
bodily and mental vigour, there is an influence at
work which tends to confine the Patria Potestas to
the cases where its possessor is actually skilful and
strong.  When we obtain our first glimpse of organised Hellenic society, it seems as if supereminent
wisdom would keep alive the father's power in persons whose bodily strength had decayed; but the
relations of Ulysses and Laertes in the Odyssey appear
to show that, where extraordinary valour and sagacity




CHAP. v.      THIE 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 nonage or minority of the children, or, in other words,
to the period during which their mental and physical
inferiority may always be presumed.  The Roman
law, however, with its remarkable tendency to innovate on ancient usage only just so far as the exigency
of the 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 Patria Potestas did not extend to the Jus
Publicum. Father and son voted together in the
city, and fought side by side in the field; indeed, the
son, as general, might happen to 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 ANCIENT LAW. CHAP. v.
last, and the number of centuries through which it
endured, constitutes one of the strangest problems
in legal history.
The Patria Potestas of the Romans, which is necessarily our type of the primeval paternal authority, is
equally difficult to understand as an institution of
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 person, the parent, when our information commences, has
over his children the jus vitce necisque, the power of
life and death, and a fortiori of uncontrolled corporal
chastisement; he can modify their personal condition
at pleasure; he can give a wife to his son; he can give
his daughter in marriage; he can divorce his children
of either sex; he can transfer them to another family
by adoption; and he can sell them.  Late in the Imperial period we find vestiges of all these powers, but
they are reduced within very narrow limits. The unqualified right of domestic chastisement has become
a right of bringing domestic offences under the cognisance of the civil magistrate; the privilege of dictating marriage has declined into a 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 Justinian, can no longer be effected without the assent of




CIAP. V.       THE PATRIA 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-quarters of a year during the earlier contests, at a later
period the proconsul in charge of a province, and the
legionaries who occupied it, cannot have had practical
reason to regard themselves as the slaves of a despotic
master; and all these avenues of escape tended constantly to multiply themselves. 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    PRIMITIVE 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,
tlat 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
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 prolongation of the powers. The rule which declared that the
son should be free after having been three times sold
by his father seems to have been originally meant
to entail penal consequences on a practice which
revolted even the imperfect morality of the primitive
Roman.   But even before the 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.




CHAPt. V.     THE PATRIA POTESTAS.          141
Many of the causes lwhich helped to mitigate the
stringency of the father's power over the persons of
his children are doubtless among those which do not
lie upon the face of history. We cannot tell how
far public opinion may have paralysed an authority
which the law conferred; or how far natural affection
may have rendered it endurable. But though the
powers over the person may have been latterly nominal, the whole tenour of the extant Roman jurisprudence suggests that the father's rights over the
son's property were always exercised without scruple
to the full extent to which they were sanctioned by
law. There is nothing to astonish us in the latitude
of these rights when they first show themselves.
The ancient law of Rome forbade the Children under
Power to hold property apart from their parent, or
(we should rather say) never contemplated the possibility of their claiming a separate ownership.  The
father was entitled to take the whole of the son's
acquisitions, and to enjoy the benefit of his contracts,
without being entangled in any compensating liability. So much as this we should expect from the
constitution of the earliest Roman society; for we
can hardly form  a notion of the primitive family
group unless we suppose that its members brought
their earnings of all kinds into the common stock,
while they were unable to bind it by improvident
individual engagements.  The true enigma of the




142 t  PRIMITIVE SOCIETY AND ANCIENT LAW.  CHAP. V.
Patria Potestas does not reside here, but in the slowness with which these proprietary privileges of the
parent were curtailed, and in the circumstance that,
before they were seriously diminished, the whole
civilised world was brought within their sphere. No
innovation of any kind was attempted till the first
years of the Empire, when the 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 commonwealth. Three centuries afterwards the same immunity was extended to the earnings of persons who
were in the civil employment of the state. Both
changes were obviously limited in their application,
and they were so contrived in technical form as
to interfere as little as possible with the principle
of Patria Potestas. A certain qualified and dependent
ownership had always been recognised by the Roman
law in the perquisites and savings which slaves and
sons under power were not compelled to include in
the household accounts, and the special name of this
permissive property, Peculium, was applied to the acquisitions newly relieved from Patria Potestas, which
were called in the case of soldiers Castrense Peculium,
and Quasi-castrense Peculiun in the case of civil servants. Other modifications of the parental privileges
followed, which showed a less studious outward
respect for the ancient principle.  Shortly after the




CHAP. v.      THE PATRIA POTESTAS.           143
introduction of the Quasi-castrense Peculium, Constantine the Great took away the father's absolute
control over property which his children had inherited
from their mother, and reduced it to a usujruct, or
life-interest. A few more changes of slight importance followed in the Western Empire, but the furthest
point reached was in the East, under Justinian, who
enacted that unless the acquisitions of the child were
derived from the parent's own property, the parent's
right over them should not extend beyond enjoying their produce for the period of his 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 all resembling that which was described in the Pandects
and the Code. All the Germlanic immigrants seem
to have recognised a corporate union of the family
under the mnund, or authority of a patriarchal chief;
but his powers are obviously only the relics of a decayed Patria Potestas, and fell far short of those
enjoyed by the Roman father.    The Franks are
particularly mentioned as not having the Roman
Institution, and accordingly the old French lawyers, even when most busily engaged in filling the




144    PRIMITIVE 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 n'a lieu.  The tenacity
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 constituted 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 born 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 faml7ilias. 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 Caracalla conferring Roman citizenship on the whole of
his subjects as a measure of small importance. How



CPAr. V.       THE PATRIA POTESTAS.          140
ever we may interpret it, it must have enormously
enlarged the sphere of the Patria Potestas, and it
seems to me that the tightening of family relations
which it effected is an agency which ought to be kept
in view more than it has been, in accounting for the
great moral revolution which was transforming the
world.
Before this branch of our subject is dismissed,
it should be observed that the Paterfamilias was
answerable for the delicts (or torts) of his Sons under
Power. He was similarly liable for the torts of his
slaves; but in both cases he originally possessed the
singular privilege of tendering the 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 Filiusfamilias. In the Chapter on Successions I shall attempt to show in what sense, and to what extent, this
C" unity " can be accepted as a reality. I can only say
at present that these responsibilities of the Paterfamilias, and other legal phenomena which will be discussed
hereafter, appear to me to point at certain duties of
the primitive Patriarchal chieftain which balanced his
rights. I conceive that, if he disposed absolutely of
the persons and fortunes of his clansmen, this repreL




1-46    PRIMITIVE SOCIETY AND ANCIENT LAW. CHAP. v.
sentative ownership was coextensive with a liability
to provide for all members of the brotherhood out of
the common fund. The difficulty is to throw ourselves 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 jurisprudence. Here again it will be convenient to employ the Roman terms, Agnatic and Cognatic relationship.  Cognatic relationship is simply the conception
of kinship familiar to modern ideas: it is the 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 relationship is something very different: it excludes a number 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 between 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 are 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
Roman law, they are all who trace their blood to the
legitimate marriage of a common pair.  Cognation 
is therefore a relative term, and the degree of connexion in blood which it indicates depends on the
particular marriage which is selected as the commencement of the calculation. If we begin with the
marriage of father and mother, Cognation will 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 included in the notion of Cognation, and following the
same process a larger number of Cognates may be
continually obtained by choosing the starting point
L 2




148     PRIMITIVE SOCIETY AND ANCIENT LAW. CHAP. v.
higher and higher up in the line of ascent. All this
is easily understood by a modern; but who are the
Agnates? In the first place, they are all the Cognates
who trace their connexion exclusively through males.
A table of Cognates is, of course, formed by taking
each lineal ancestor in turn and including all his
descendants of botl sexes in the tabular view; if
then, in tracing the various branches of such a genealogical table or tree, we stop whenever we come
to the name of a female and pursue that 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 familise "-a woman is the
terminus of the family. A female name closes the
branch or twig of the genealogy in which it occurs.
None of the descendants of a female are included in
the primitive notion of family relationship.
If the system of archaic law at which we are looking be one which admits Adoption, we must add to
the Agnates thus obtained all persons, male or female,
who have been brought into the family by the artificial extension of its boundaries. But the descendants
of such persons will only be Agnates, if they satisfy
the conditions which have just been described.




CEAP. v.            AGNATION.                 149
What then is the reason of this arbitrary inclusion
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 Mother, but the authority of
the Father. All persons are Agnatically connected
together who are under the same Paternal Power, or
who have been under it, or who might have been under it if their lineal ancestor had lived long enough
to exercise his empire. In truth, in the primitive
view, Relationship is exactly limited by Patria Potestas. Where the Potestas begins, Kinship begins'
and therefore adoptive relatives are among the kindred. Where the Potestas ends, Kinship ends; so
that a son emancipated by his father loses all rights
of Agnation. And here we have the reason why the
descendants of females are outside the limits of archaic kinship. If a woman died unmarried, she could
have no legitimate descendants. If she married, her
children fell under the Patria Potestas, not 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 relatives. The inference would have been that a person




150    PRIMITIVE SOCIETY AND ANCIENT LAW.  CHAP. v.
might be subject to two distinct Patrie Potestates;
but distinct Patriae Potestates implied distinct jurisdictions, so that anybody amenable to two of them at
the same time would have lived under two different
dispensations.  As long as the Family was an imperium in imperio, a community within the commonwealth governed by its own 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 Agnation for the inquirer into the history of jurisprudence.
The powers themselves are discernible in comparatively few monuments of ancient law, but Agnatic
Relationship, which implies their former existence,
is discoverable almost everywhere.  There are few
indigenous bodies of law belonging to communities of
the Indo-European stock, which do not exhibit peculiarities in the most ancient part of their structure
which are clearly referable to Agnation.  In Hindoo
law, for example, which is saturated with the primitive notions of family dependency, kinship is entirely
Agnatic, and I am informed that in Hindoo genealogies the names of women are generally omitted
altogether.  The same view of relationship pervades




CHAP. v.        THE HALF-BLOOD.              151
so much of the laws of the races who overran the
Roman Empire as appears to have really formed part
of their primitive usage, and we may suspect that
it would have 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. The 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 ancient German rule of succession
to allodial property. In Agnation too is to be sought
the explanation of that 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




152    PRIMITIVE SOCIETY AND ANCIENT LAW.  CHAP. v.
a general prohibition against the succession of the
half-blood, and extended it to consanguineous brothers,
that is to sons of the same father by different wives.
In all the literature which enshrines the pretended
philosophy of law, there is nothing more curious than
the pages of elaborate sophistry in which Blackstone
attempts to explain and justify the 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 durable
than that which unites her male kinsmen. We have
several times laid down that early law takes notice of
Families only; this is the same thing as saying that
it only takes notice of persons exercising Patria
Potestas, and 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




CHAP. V.     GUARDIANSHIP OF WOMEN.         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 contrivance 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 becomes the ward
of her own sons. Even in Europe, the laws of the
Scandinavian nations respecting women preserved it
until quite recently. The invaders of the Western
Empire had it universally among their indigenous
usages, and indeed their ideas on the subject of
Guardianship, in all its forms, were among the most
retrogressive of those which they introduced into the
Western world. But from the mature Romanjurisprudence it had entirely disappeared. We should know
almost nothing about it, if we had only the compilations of Justinian to consult; but the discovery of
the manuscript of Gaius discloses it to us at a most




154    PPIMITIVE SOCIETY AND ANCIENT LAW.  CHAP. V.
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
Roman lawyers had devised for enabling Women to
defeat the ancient rules. Led by their theory of Natural Law, the jurisconsults had evidently at this time
assumed the equality of the sexes as a principle of their
code of equity. The restrictions which they attacked
were, it is to be observed, restrictions on the disposition of property, for which the assent of the woman's
guardians was still formally required. Control of
her person was apparently quite obsolete.
Ancient law subordinates the woman to her bloodrelations, while a prime phenomenon of modern jurisprudence has been her subordination to her husband.
The history of the change is remarkable. It begins
far back in the annals of Rome. Anciently, there
were three modes in which marriage might be contracted according to Roman usage, one involving a
religious solemnity, the other two the observance of
certain secular formalities. By the religious marriage
or Conifarreation; by the higher form of civil marriage,
which was called Coemption; and by the lower form,
which was termed Usus, the Husband acquired a




CHAP. v.   ANCIENT ROMAN MARRIAGE.           155
number of rights over the person and property of his
wife, which were on the whole in excess of such as are
conferred on him in any system of modern jurisprudence. But in what capacity did he acquire them?
Not as Husband, but as Father. By the Confarreation,
Coemption, and Usus, the woman passed in manum
viri, that is, in law she became the Daughter of
her husband.   She was included in his Patria
Potestas. She incurred all the liabilities springing
out of it while it subsisted, and surviving it when it
had expired. All her property became absolutely
his, and she was retained in tutelage after his death
to the guardian whom he had appointed by will.
These three ancient forms of marriage fell, however,
gradually into disuse, so that at the most splendid
period of Roman greatness, they had almost entirely
given place to a fashion of wedlock-old apparently,
but not hitherto considered reputable-which was
founded on a modification of the lower form of civil
marriage. Without explaining the technical mechanism of the institution now generally popular, I may
describe it as amounting in law to a little more than a
temporary deposit of the woman by her family. The
rights of the family remained unimpaired, and the
lady continued in the tutelage of guardians whom her
parents had appointed and whose privileges of control overrode, in many material respects, the inferior
authority of her husband. The consequence was




156     PRIMITIVE SOCIETY AND ANCIENT LAW. CHAP. V.
that the situation of the Roman female, whether married or unmarried, became one of great personal and
proprietary independence, for the tendency of the
later law, as I have already hinted, was to reduce
the power of the guardian to a nullity, while the
form of marriage in fashion conferred on the husband
no compensating superiority. But Christianity tended
somewhat from the very first to narrow this remarkable liberty.  Led at first by justifiable 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
Western world has seen. The latest Roman law, so
far as it is touched by the Constitutions of the Christian Emperors, bears some marks of a reaction against
theliberal doctrines of the great Antonine jurisconsults.
And the prevalent state of religious sentiment may
explain why it is that modernjurisprudence, 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




Ce'AP. V.      CONDITION OF WOMEN.           157
subjects, the women of the dominant races are seen
eveerywhere under various forms of archaic guardianship, and the husband who takes a wife from any
family except his own pays a money-price to her
relations for the tutelage which they surrender to
him. When we move onwards, and the code of the
middle ages has been formed by the amalgamation of
the two systems, the law relating to women carries
the stamp of its double origin. The principle of
the Roman jurisprudence is so far triumphant that
unmarried females are generally (though there are
local exceptions to the rule) relieved from the bondage
of the family; but the archaic principle of the barbarians has fixed the position of married women, and
the husband has drawn to himself in his marital
character the powers which had once belonged to his
wife's male kindred, the only difference being that he
no longer purchases his privileges. At this point therefore the modern law of Southern and Western Europe
begins to be distinguished by one of its chief characteristics, the comparative freedom it allows to
unmarried women and widows, the heavy 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 Justinian, wherever it was studied with that passionate




58  PRIMITIVE SOCIETY AND ANCIENT LAW. CHAP. Y.
enthusiasm which it seldom failed to awaken. It
covertly but most efficaciously undermined the customs 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 different basis from their
personal incapacities, and it is by the tendency of
their doctrines to keep alive and consolidate the
former, that the expositors of the Canon Law have
deeply injured civilisation. There are many vestiges
of a struggle between the secular and ecclesiastical
principles, but the Canon Law nearly everywhere
prevailed. In some of the French provinces, married
women, of a rank below nobility, obtained all the
powers of dealing with property which Roman jurisprudence had allowed, and this local law has been
largely followed by the Code Napoleon; but the state
of the Scottish law shows that scrupulous deference
to the doctrines of the Roman jurisconsults did not
always extend to mitigating the disabilities of wives.




CHAP. V.      CONDITION OF WOMEN.           159
The systems however which are least indulgent to
married women are invariably those which have
followed the Canon Law exclusively, or those which,
from the lateness of their contact with European
civilisation, have never had their archaisms weeded
out. The Danish and Swedish laws, harsh for many
centuries to all females, are still much less favourable
to wives than the generality of Continental codes.
And yet more stringent in the proprietary incapacities it imposes is the English Common Law, which
borrows far the greatest number of its fundamental
principles from the jurisprudence of the Canonists.
Indeed, the part of the Common Law which prescribes
the legal situation of married women may serve to
give an Englishman clear notions of the great institution which has been the principal subject 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.
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 extraordinary early period. Under the ancient Roman
law, which may be taken as their type, the son who
was delivered from Patria Potestas by the death of
his Father or Grandfather remained under guardianship till an epoch which for general purposes may be
described as arriving with his fifteenth year; but the
arrival of that epoch placed him at once in the 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 guardianship. Neither the one nor the other of them was
based on the slightest consideration of public or




CHAP...    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 himself the head of a new family and the founder of a new
Patria Potestas: no such capacity was possessed by
the woman, and therefore she was never enfranchised.
Accordingly the Guardianship of Male Orphans was a
contrivance for keeping alive the semblance of subordination to the family of the Parent, up to the time
when the child was supposed capable of 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 convenience; and this the Romans seem to have discovered at a very early stage of their social progress.
One of the very oldest monuments of Roman legislation is the Lex Lcetoria or Plctoria, 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    PRIMITIVE 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 wardsclip, in modern jurisprudence
has adjusted itself with tolerable regularity to the
simple principle of protection to the immaturity of
youth both bodily and mental. It has its natural
termination with years of discretion. But for protection against physical weakness, and for protection
against intellectual incapacity, the Romans looked to
two different institutions, distinct both in theory and
design. The ideas attendant on both are combined
in the 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 jurisprudence regulate the connexion of Master and Slave,
present no very distinct traces of the original condition common to ancient societies. But there are
reasons for this exception. There seems to be something in the institution of Slavery which has at
all times either shocked or perplexed  mankind,
however little habituated to reflection, and however
slightly advanced in the cultivation of its moral
instincts.  The compunction which ancient communities almost unconsciously experienced appears to
have always resulted in the adoption of some imagi



CEAP. V.        MASTER AND SLAVE.            163
nary principle upon which a defence, or at least a
rationale, of slavery could be plausibly founded.
Very early in their history the Greeks explained the
institution as grounded on the intellectual inferiority
of certain races, and their consequent natural aptitude
for the servile condition. The Romans, in a spirit
equally characteristic, derived it from a supposed
agreement between the victor and the vanquished, in
which the first stipulated for the perpetual services
of his foe, and the other gained in consideration
the life which he had legitimately forfeited.  Such
theories were not only unsound but plainly unequal
to the case for which they affected to account. Still
they exercised 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 typical system-that of ancient
Rome.
Much industry and some learning have been
bestowed in the United States of America on the
question whether the Slave was in the early stages of
society a recognised member of the Family. There is
a sense in which an affirmative answer must certainly
2 2




164    PRIMITIVE SOCIETY AND ANCIENT LAW.  CHAP. V.
be given.  It is clear, from the testimony both of
ancient law and of many primeval histories, that the
Slave might under certain conditions be made the
Heir, or Universal Successor, of the Master, and this
significant faculty, as I shall explain in the Chapter
on Succession, implies that the government and representation of the Family might, in a particular state
of circumstances, 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 defensibility of Negro-servitude at the present moment.
What then is meant by saying that the Slave was
originally included in the Family? Not that his situation may not have been the fruit of the coarsest
motives which can actuate man. The simple wish to
use the bodily powers of another person as a means
of ministering to one's own ease or pleasure is doubtless the foundation of Slavery, and as old as human
nature. When we speak of the Slave as anciently included in the Family, we intend to assert nothing as
to the motives of those who brought him into it or kept
him there; we merely imply that the tie which bound
him to his master was regarded as one of the same
general character with that which united every other
member of the group to its chieftain. This consequence is, in fact, carried in the general assertion
already made, that the primitive ideas of mankind




CHAP. v.            SLAVERY.                 165
were unequal to comprehending any basis of the connexion inter se of individuals, apart from the relations of family. The Family consisted primarily of
those who belonged to it by consanguinity, and next
of those who had been engrafted on it by adoption;
but there was still a third class of persons who were
only joined to it by common subjection to its head,
and these were the Slaves. The born and the adopted
subjects of the chief were raised above the Slave by
the certainty that in the ordinary course of events
they would be relieved from bondage and entitled to
exercise powers of their own; but that the inferiority
of the Slave was not such as to place him outside the
pale of the Family, or such as to degrade him to the
footing of inanimate property, is clearly proved, I
think, by the many traces which remain of his ancient
capacity for inheritance in the last resort. It would,
of course, be unsafe in the highest degree to hazard
conjectures how far the lot of the Slave was mitigated,
in the beginnings of society, by having a definite
place reserved to him in the empire of the Father. It
is, perhaps, more probable that the son was practically assimilated to the Slave, than that the Slave
shared any of the tenderness which in later times was
shown to the son. But it may be asserted with some
confidence of advanced and matured codes that,
wherever servitude is sanctioned, the Slave has uniformly greater advantages under systems which preserve some memento of his earlier condition than




166     PRItMITIVE SOCIETY AND ANCIENT LAW. CHEP. V.
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 Roman law was arrested
in its growing tendency to look upon him more and
more as an article of property by the theory of the
Law of Nature; and hence it is that, wherever servitude 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 fundamental law was overlaid by recent statutory enactments 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.
We have now examined all parts of the ancient
Law of Persons which fall within the scope of this
treatise, and the result of'the inquiry is, I trust, to
give additional definiteness and precision to our view
of the infancy of jurisprudence. The Civil laws of
States first make their appearance as the Themistes
of a patriarchal sovereign, and we can now see that
these Themistes are probably only a developed form




CHAP. v.          ANCIENT LAW.                 167
of the irresponsible commands which, in a still earlier
condition of the race, the head of each isolated household may have addressed to his wives, his children,
and his slaves. But, even after the State has been
organised, the laws have still an extremely limited
application. 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
jurisprudence, 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 progress, a greater number of personal rights and a
larger amount of property are removed from the domestic forum to the cognizance of the public 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




168    PRIMITIVE SOCIETY AND ANCIENT LAW. CHAP. v,
each hearthstone.  We have in the annals of Roman
law a nearly complete history of the crumbling away
of an archaic system, and of the formation of new institutions from the re-combined materials, institutions
some of which descended unimpaired to the modern
world, while others, destroyed or corrupted by contact with barbarism in the dark ages, had again to be
recovered by mankind. When we leave this jurisprudence 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 symmetry, or of simplification-new principles at any
rate-have usurped the authority of the jejune considerations 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 course
it has been distinguished by the gradual dissolution
of family dependency, and the growth of individual
obligation in its place. The Individual is steadily
substituted for the Family, as the unit of which civil
laws take account. The advance has been accomplished 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 retardations will be found to have been occasioned through
the absorption of archaic ideas and customs from
some entirely foreign source.  Nor is it difficult to
see what is the tie between man and man which replaces by degrees those forms of reciprocity in rights
and duties which have their origin in the Family. It is
Contract. Starting, as from one terminus of 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 contractual relation of the servant to his master.  The
status of the Female under Tutelage, if the tutelage
be understood of persons other than her husband, has
also ceased to exist; from her coming of age to her
marriage all the relations she may form are relations
of contract. So too the status of the Son under Power
has no true place in the law of modern European
societies. If any civil obligation binds together the
Parent and the child of full age, it is one to which
only contract gives its legal validity. The apparent




*170    PRIMITIVE SOCIETY AND ANCIENT LAW. CHAP. V.
exceptions are exceptions of that stamp which illustrate the rule. The child before years of discretion,
the orphan under guardianship, the adjudged lunatic,
have all their capacities and incapacities regulated
by the Law of Persons. But why?     The reason is
differently expressed in the conventional language of
different systems, but in substance it is stated to the
same effect by all. The great majority of Jurists are
constant to the principle that the classes of persons
just mentioned are subject to extrinsic control on the
single ground that they do not possess the faculty of
forming a judgment on their own interests; in other
words, that they are wanting in the first essential 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 were
derived from, and to some extent are still coloured
by, the powers and privileges anciently residing in
the Family.   If then we employ Status, agreeably
with the usage of the best writers, to signify these
personal conditions only, and avoid 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
been a movement from Status to Contract.




CHAP. VI.         TESTAMENTS.               171
CHAPTER VI.
THE EARLY HISTORY OF TESTAMENTARY SUCCESSION.
IF an attempt were made to demonstrate in England
the superiority of the historical method of investigation to the modes of inquiry concerning Jurisprudence which are in fashion among us, no department of Law would better serve as an example than
Testaments or Wills. Its 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 realise in their ancient form; while here, at the other extremity of its
line of progress, we are in the midst of legal notions
which are nothing more than those same conceptions
disguised by the phraseology and by the habits of
thought which belong to modern times, and exhibiting therefore a difficulty of another kind, the difficulty of believing that ideas which form part of our
everyday mental stock can really stand in need of
analysis and examination. The growth of the Law of




172             TESTAMENTARY LAW.         CHAP. VT.
Wills between these extreme points can be traced
with remarkable distinctness.  It was much less interrupted at the epoch of the birth of feudalism, than
the history of most other branches of law. It is, indeed, true that as regards all provinces of jurisprudence, the break caused by the division between
ancient and modern history, or in other words by the
dissolution of the Roman Empire, has been very
greatly exaggerated.  Indolence 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 they became
mixed with the population of the Roman provinces
they appropriated from the Imperial jurisprudence
the conception of a Will, at first in part, and after



CHAP. vi.   INFLUENCE 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 Testaments which several of the heathen temples had enjoyed; and even thus early it was almost exclusively
to private bequests that the religious foundations
owed their temporal possessions. Hence it is that
the decrees of the earliest Provincial Councils perpetually contain anathemas against those who deny
the sanctity of Wills.  Here, in England, Church influence 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 Ecclesiastical Courts, which applied to them, though not
always intelligently, the principles of Roman jurisprudence; and, though neither the Courts of Common
Law nor the Court of 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 personality has become a modified form of the dispensation under which the inheritances of Roman citizens
were administered.




174               ANCIENT WILLS.           CHAP. VI.
It is not difficult to point out the extreme difference
of the conclusions forced on us by the historical treatment of the subject, from those to which we are conducted when, without the help of history, we merely
strive to analyse our priman-facie impressions.  I suppose there is nobody who, starting from the popular or
even the legal conception of a Will, would not imagine
that certain qualities are necessarily attached to it.
He would say, for example, that a 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 Will.
The Testaments from which our Wills are directly
descended at first took effect immediately on their execution; they were not secret; they were not revocable.
Few legal agencies are, in fact, the fruit of more
complex historical agencies than that by which a
man's written intentions control the posthumous disposition 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 far as they have affected the history of
law.




CHAP, I. I NATURAL RIGHT 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 Will, by saying that they
were natural to it, or, as the phrase would run in
full, attached to it by the Law of Nature. Nobody, I
imagine, would affect to maintain such a doctrine
when once it was ascertained that all these characteristics had their origin within historical memory; at
the same time vestiges of the theory of which the
doctrine is an offshoot, linger in forms of expression
which we all of us use, and perhaps scarcely know how
to dispense with. I may illustrate this by mentioning
a position common in the legal literature of the seventeenth century. The jurists of that period very commonly assert that the power of Testation itself is of
Natural Law, that it is a 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 affirm that the right of dictating or
controlling the posthumous disposal of property is a
necessary or natural consequence of the proprietary




176        NATURAL RIGHT OF TESTATION.    CHAP. VT.
rights themselves. And every student of technical
jurisprudence must have come across the same view,
clothed in the language of a rather different school,
which, in its rationale of this department of law,
treats succession ex testamento as the mode of devolution 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 institution of the law of Nature. It is certainly never quite
safe to pronounce dogmatically as to the range of
association embraced by modern minds when they
reflect on Nature and her Law; but I 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 instinct 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 Testamentary Power by the Code Napoleon, and has witnessed the steady multiplication of systems for which
the French codes have served as a model.  To the




CsP. VI.       NATURE 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 indigenous societies, a condition of jurisprudence in which
Testamentary privileges are not allowed, or rather
not contemplated, has preceded that later stage of
legal development in which the mere will of the proprietor is permitted under more or less of restriction
to override the claims of his kindred in blood.
The conception of a Will or Testament cannot be
considered by itself. It is a member, and not the
first, of a series of conceptions. In itself a Will is
simply the instrument by which the intention of the
testator is declared. It must be clear, I think, that
before such an instrument takes its turn for discussion, there are several 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 control the posthumous disposition of their property?
Thrown into technical language, the dependence of
the various conceptions which contribute to the
notion of a Will is thus expressed. A Will or Testament is an 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 universitas juris, or university of
N




178              UNIVERSITAS JURIS.        CHAP. vI.
rights and duties.  Inverting this order we have
therefore to inquire what is a universitas juris; what
is a universal succession; what is the form of universal succession which is called an inheritance?  And
there are also two further questions, independent
to some extent of the points I have mooted, but
demanding solution before the subject of Wills can
be exhausted.  These are, how came an inheritance
to be 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 duties
united by the single circumstance of their having
belonged at one time to some one person. It is, as it
were, the legal clothing of some given individual.  It
is not formed by grouping together any rights and
any duties. It can only be constituted by taking 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
fvct there is no university of rights and duties. The




cMAP. vI.      UNIVERSAL 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 endeavour 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 universitas juris; and there is but little danger of mistake in
forming the notion, if we are only careful to remember
that duties enter into it quite as much as rights. Our
duties may overbalance our rights.  A man may owe
more than he is worth, and therefore if a money
value is set on his collective legal relations he may
be what is called insolvent.  But for all that the
entire group of rights and duties which centres in
him is not the less a  juris universitas."
We come next to a' universal succession."   A
universal succession is a succession to a universitas
juris. It occurs when one man is invested with
the legal clothing of another, becoming at the same
moment subject to all his 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
periods, as for example by successive purchases; or
he might acquire them in different capacities, part as
2




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.  In order that there may be a
true universal succession, the transmission must be
such -as to pass the whole aggregate of rights and
duties at the same moment and in virtue of the same
legal capacity in the recipient. The notion of a
universal succession, like that of a'juris universitas,'
is permanent in jurisprudence, though in the English
legal system it is obscured by the great variety of
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 universal succession, though, as the assignee only pays
debts to the extent of the assets, this is only a modified
form of the primary notion. Were it common among
us for persons to take assignments of all a man's
property on condition of paying all his debts, such
transfers would exactly resemble the universal successions known to the oldest Roman Law.   When a
Roman citizen acdrogated a son, i. e., took a man, not
already under Patria Potestas, as his adoptive child,
he succeeded universally to the adoptive child's estate,
i. e., he took all the property and became liable for all
the obligations.  Several other forms of' universal




CHAP. VI.   THIE UNIVERSAL SUCCESSOR.         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, Hereditas or Inheritance.  Inheritance
was a universal succession, occurring at a death.
The universal successor was HIeres 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 Haeres remained the same,
whether he was named by a Will or whether he took
on an intestacy. The term Hseres is no more emphatically used of the Intestate than of the Testamentary
Heir, for the manner in which a man became Haeres
had nothing to do with the legal character he sustained.  The dead man's universal successor, however he became so, whether by Will or by Intestacy,
was his Heir. But the Heir was not necessarily a
single person. A group of persons, considered in
law as a single unit, might succeed as co-heirs to the
Inheritance.
Let me now quote the usual Roman definition
of an Inheritance. The reader will be in a position to appreciate the full force of the separate
terms.  lccereditas 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
*-N3




182                  THE HEIR.             CHAP. VI.
and descended unimpaired on his Heir or Co-heirs,
in whom   his identity (so far as the law was concerned) was continued. Our own law, in constituting the Executor or Administrator the representative
of the deceased to the extent of his personal assets,
may serve as an illustration of the theory from which
it emanated, but, although it illustrates, it does not
explain it. The view of even the later Roman Law
required a closeness of correspondence between the
position of the deceased and of his Heir which is no
feature of an English representation; and, in the
primitive jurisprudence everything tiurned on the
continuity of succession. Unless provision was made
in the will for the instant devolution of the testator's
rights and duties on the Heir or Co-heirs, the testament lost all its effect.
In modern Testamentary jurisprudence, as in the
later Roman Law, the object of first importance is
the execution of the testator's intentions.  In the
ancient law of Rome the subject of corresponding
carefulness was the bestowal of the Universal Succession.  One of these rules seems to our eyes a principle
dictated by common sense, while the other looks
very much like an idle crotchet.  Yet that without
the second of them the first would never have come
into being, is as certain as any proposition of the
kind can be.
In order to solve this apparent paradox, and to




CHAP, VI.       PRIMITIVE SOCIETY.             183
bring into greater clearness the train of ideas which
I have been endeavouring to indicate, I must borrow
the results of the inquiry which was attempted in the
earlier portion of the preceding chapter.  We saw
one peculiarity invariably distinguishing the infancy
of society.  Men are regarded and treated, not as
individuals, but always as members of a particular
group. Everybody is first a citizen, and then, as a
citizen, he is a member of his order-of an aristocracy
or a democracy, of an order of patricians or plebeians;
or, in those societies which an unhappy fate has
afflicted with a special perversion in their course of
development, of a caste. Next, he is a menmber of a
gens, house, or clan; and lastly, he is a member of
his famiily.  This last was the narrowest and most
personal relation in which he stood; nor, paradoxical
as it may seem, was he ever regarded as hinsel, as a
distinct individual.  His individuality was swallowed
up in his family. I repeat the definition of a primitive society given before. It has for its units, not
individuals, but groups of men united by the reality
or the fiction of blood-relationship.
It is in the peculiarities of an undeveloped society
that we beize the first trace of a universal succession.
Contrasted with the organisation of a modern state,
the commonwealths of primitive times may be fairly
described as consisting of a number of little despotic
governments, each perfectly distinct from the rest,




184           THE PRIMITIVE FAMILY.       CHAP. VI:
each absolutely controlled by the prerogative of a
single monarch. But though the Patriarch, for we
must not yet call him the Pater-familias, had rights
thus extensive, it is impossible to doubt that he
lay under an equal amplitude of obligations.  If he
governed the family, it was for its behoof. If he was
lord of its possessions, he held them as trustee for his
children and kindred. He had no privilege or position
distinct from that conferred on him by his relation
to the petty commonwealth which he governed. The
Family, in fact, was a Corporation; and he was its
representative or, we might almost say, its Public
officer. He enjoyed rights and stood under duties,
but the rights and the duties were, in the conternplation of his fellow-citizens and in the eye of the law,
quite as much those of the collective body as his own.
Let us consider for a moment, the effect which would
be produced by the death of such a representative.
In the eye of the law, in the view of the civil magistrate, the demise of the domestic authority would be
a perfectly immaterial event. The person representing the collective body of the family and primarily
responsible to municipal jurisdiction would bear a
different name; and that would be all. The rights
and obligations which attached to the deceased head
of the house would attach, without breach of continuity, to his successor; for, in point of fact, they
would be the rights and obligations of the family, and




CHAP. vI,  THE FAMILY A CORPORATION.         185
the family had the distinctive characteristic of a
corporation-that it never died. Creditors would
have the same remedies against the new chieftain as
against the old, for the liability being that of the still
existing family would be absolutely unchanged. All
rights available to the family would be as available
after the demise of the headship as before it-except
that the corporation would be obliged-if indeed
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 gradually and tardily society dissolved itself into the
component atoms of which it is now constituted-by
what insensible gradations the relation of man to man
substituted itself for the relation of the individual to
his family, and of families to each other. The point
now to be attended to is that even when the revolution had apparently quite accomplished itself, even
when the magistrate had in great measure assumed
the place of the Pater-familias, and the civil tribunal
substituted itself for the domestic forum, nevertheless
the whole scheme of rights and duties administered
by the judicial authorities remained shaped by the
influence of the obsolete privileges and coloured in
every part by their reflection. There seems little
question that the devolution of the Universitas Juris,




186          FAMILIES AND INDIVIDUALS.      CHAP. VI.
so strenuously insisted upon by the Roman Law as
the first condition of a testamentary or intestate succession, was a feature of the older form of society
which men's minds have been unable to dissociate from
the new, though with that newer phase it had no true
or proper connection. It seems, in truth, that the prolongation of a man's legal existence in his heir, or in
a group of co-heirs, is neither more nor less than a characteristic of the family transferred by a fiction to the
individual.  Succession in corporations is necessarily
universal, and the family was a corporation.  Corporations never die. The decease of individual members
makes no difference to the collective existence of the
aggregate body, and does not in any way affect its legal
incidents, its faculties or liabilities. Now in the idea
of a Roman universal succession all these qualities of
a corporation seem to have been transferred to the
individual citizen. His physical death is allowed to
exercise no effect on the legal position which he filled,
apparently on the principle that that position is to be
adjusted as closely as possible to the analogies of a
family, which, in its corporate character, was not of
course liable to physical extinction.
I observe that not a few Continental jurists have
much difficulty in comprehending the nature of the
connection between the conceptions blended in a universal succession, and there is perhaps no topic in the
philosophy of jurisprudence on which their specula



CHAP. VI.       CORPORATIONS 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.
English lawyers classify corporations as Corporations
aggregate and Corporations sole.  A  Corporation
aggregate 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
King or the Parson of a Parish as instances of Corporations sole. The capacity or office is here considered apart from the particular person who from
time to time may occupy it, and, this capacity being
perpetual, the series of individuals who fill it are
clothed with the leading attribute of CorporationsPerpetuity. Now in the older theory of Roman Law
the individual bore to the family precisely the same
relation which in the rationale of English jurisprudence a Corporation sole bears to a Corporation
aggregate. The derivation and association of ideas
are exactly the same. In fact, if we say to ourselves
that for purposes of Roman Testamentary Jurisprudence each individual citizen was a Corporation
sole, we shall not only realise the full conception of
an inheritance, but have constantly at command the
clue to the assumption in which it originated. It is




188           INTESTATE SUCCESSION.        CHAP. V1.
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
Romans it seemed an equally simple and natural
process, to eliminate the fact of death from the devolution of rights and obligations.  The testator lived
on in his heir or in the group of his co-heirs. He was
in law the same person with them, and if any one in
his testamentary dispositions had even constructively
violated the principle which united his actual and his
posthumous existence, the law rejected the defective
instrument, and gave the inheritance to the kindred
in blood, whose capacity to fulfil the conditions of
heirship was conferred on them by the law itself, and
not by any document which by possibility might be
erroneously framed.
When a Roman citizen died intestate or leaving no
valid Will, his descendants or kindred became his
heirs according to a scale which will be presently
described. The person or class of persons who succeeded did not simply represent the deceased, but, in
conformity with the theory just delineated, they continued his civil life, his legal existence.  The same
results followed when the order of succession was
determined by a Will, but the theory of the identity
between the dead man and his heirs was certainly much
older than any form of Testament or phase of Testa



CHAP. 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 remarkable ideas connected with universal succession. Testamentary law is the application of a principle which
may be explained on a variety of philosophical hypotheses as plausible as they are gratuitous; it is
interwoven with every part of modern society, and it
is defensible on the broadest grounds of general
expediency. But the warning can never be too often
repeated, that the grand source of mistake in questions
of jurisprudence is the impression that those reasons
which actuate us at the present moment, in the maintenance of an existing institution, have necessarily
anything in common with the sentiment in which the
institution originated. It is certain that, in the old
Roman Law of Inheritance, the notion of a will or
testament is inextricably mixed up, I might almost
say confounded, with the theory of a man's posthumous existence in the person of his heir.
The conception of a universal succession, firmly as
it has taken root in jurisprudence, has not occurred
spontaneously to the framers of every body of laws.
Wherever it is now found, it may be shown to have
descended from Roman law; and with it have come
down a host of legal rules on the subject of Testa



190         SUCCESSION TO THE FAMILY.     CHAP. VI.
ments and Testamentary gifts, which modern practitioners apply without discerning their relation to the
parent theory. But, in 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 succession is circling.  The unflinching sternness of the
Roman law in enforcing compliance with the governing theory would in itself suggest that the theory
grew out of something in the primitive constitution
of Roman society; but we may push the proof a good
way beyond the presumption. It happens that several
technical expressions, dating from the earliest institution of wills at Rome, have been accidentally
preserved to us. We have in Gaius 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 which 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 what passed from the Testator to
the Heir was the yFamily, that is, the aggregate of
rights and duties contained in the Patria Potestas
and growing out of it.  The material property is in




CHAP. vi.    ORIGINAL 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 therefore an instrument, or (for it was probably not at
first in writing) a proceeding, by which the devolution of the Family was regulated. It was a mode of
declaring who was to have the chieftainship, in succession to the Testator. When Wills are understood
to have this for their original object, we see at once
how it is that they came to be connected with one of
the most curious relics of ancient religion and law,
the sacra, or Family Rites.  These sacra were the
Roman form of an institution which shows itself
wherever society has not wholly shaken itself free
from its primitive clothing. They are the sacrifices
and ceremonies by which the brotherhood of the
family is commemorated, the pledge and the witness of its perpetuity. Whatever be their naturewhether it be true or not that in all cases they are
the worship of some mythical ancestor-they are
everywhere employed to attest the sacredness of the
family relation; and therefore they acquire prominent
significance and importance, whenever the continuous
existence of the Family is endangered by a change in
the person of its chief. Accordingly, we hear most
about them in connection with demises of domestic
sovereignty. Among the Hindoos, the right to inherit a dead man's property is exactly co-extensive




192            THE HINDOO SACRA.         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 established 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 differences 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




CEAP. VI.   ROMAN AND HINDOO SACRA.          193
Law of Things. They have even received a monstrous extension, for it is a plausible opinion that the
self-immolation of the widow at her husband's funeral,
a practice continued to historical times by the Hindoos,
and commemorated in the traditions of several IndoEuropean races, was an addition grafted on the primitive 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 obligation 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 Pontiffs. 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
Will. The place filled by Wills is occupied by Adoptions. We can now see the relation of the Testamentary Power to the Faculty of Adoption, and the
reason why the exercise of either of them could call
up a peculiar solicitude for the performance of the
sacra. Both a Will and an Adoption threaten a distortion of the ordinary course of Family descent, but
0




194           WILLS AND ADOPTIONS.       CHAP. YI.
they are obviously contrivances for preventing the
descent being wholly interrupted, when there is
no succession of kindred to carry it on. Of the
two expedients Adoption, the factitious creation of
blood-relationship, is the only one which has suggested itself to the greater part of archaic societies.
The Hindoos have indeed advanced one point on
what was doubtless the antique practice, by allowing the widow to adopt when the father has neglected to do so, and there are in the local customs of
Bengal some faint traces of the Testamentary powers.
But to the Romans belongs pre-eminently the credit
of inventing the Will, the institution which, next to
the Contract, has exercised the greatest influence in
transforming human society. We must be careful
not to attribute to it in its earliest shape the functions
which have attended it in more recent times. It
was at first, not a mode of distributing a dead man's
goods, but one among several ways of transferring
the representation of the household to a new chief.
The goods descend no doubt to the Heir, but that is
only because the government of the family carries
with it in its devolution the power of disposing of
the common stock. We are very far as yet from
that stage in the history of Wills in which they
become powerful instruments in modifying society
through the stimulus they give to the circulation
of property and the plasticity they produce in pro



CHAP. L.   ROMAN IDEAS OF SUCCESSION.        195
prietary rights.  No such consequences as these appear in fact to have been associated with the Testamentary power even by the latest Roman lawyers.
It will be found that Wills were never looked upon
in the Roman community as a contrivance for parting Property and the Family, or for creating a
variety of miscellaneous interests, but rather as a
means of making a better provision for the members
of a household than could be secured through the
rules of Intestate succession.  We may suspect
indeed that the associations of a Roman with the
practice of will-making were extremely different
from those familiar to us nowadays. The habit of
regarding Adoption and Testation as modes of continuing the Family cannot but have had something
to do with the singular laxity of Roman notions as
to the inheritance of sovereignty. It is impossible
not to see that the succession of the early Roman
Emperors to each other was 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 themselves Caesar and Augustus.
When the phenomena of primitive societies emerge
into light, it seems impossible to dispute a proposition
which the jurists of the seventeenth century considered doubtful, that Intestate Inheritance is a more
ancient institution than Testamentary Succession.
o 2




196      RARITY OF TESTAMENTARY POWERS.  CHAP. vI.
As soon as this is settled, a question of much interest suggests itself, how and under what conditions
were the directions of a will first allowed to regulate
the devolution of authority over the household, and
consequently the posthumous distribution of property. The difficulty of deciding the point arises
from the rarity of Testamentary power in archaic
communities. It is doubtful whether a true power
of testation was known to any original society except
the Roman. Rudimentary forms of it occur here
and there, but most of them are not exempt from
the suspicion of a Roman origin. The Athenian
Will was, no doubt, indigenous, but then, as will appear presently, it was only an inchoate Testament.
As to the Wills which are sanctioned by the bodies of
law which have descended to us as the codes of the
barbarian conquerors of imperial Rome, they are
almost certainly Roman. The most penetrating German criticism has recently been directed to these
leges Barbarorun, the great object of investigation
being to detach those portions of each system which
formed the customs of the tribe in its original home
from the adventitious ingredients which were borrowed from the laws of the Romans. In the course
of this process, one result has invariably disclosed
itself, that the ancient nucleus of the code contains
no trace of a Will. Whatever testamentary law
exists, has been taken from Roman jurisprudence.
Similarly, the rudimentary Testament which (as I




CA-2i. VI.  PRIMITIVE OPERATION OF WILLS.    197
am informed) the Rabbinical Jewish law provides
for, has been attributed to contact with the Romans.
The only form of Testament, not belonging to a Roman or Hellenic society, which can with any reason
be supposed indigenous, is that recognised by the
usages of the province of Bengal; and the Testament
of Bengal, which some have even supposed to be an
invention of Anglo-Indian lawyers, is at most only a
rudimentary Will.
The evidence, however, such as it is, seems to
point to the conclusion that Testaments are at first
only allowed to take effect on failure of the persons
entitled to have the inheritance by right of blood
genuine or fictitious. Thus, when Athenian citizens
were empowered for the first time by the Laws of
Solon to execute Testaments, they were forbidden to
disinherit their direct male descendants.  So, too,
the Will of Bengal is only permitted to govern the
succession so far as it is consistent with certain
overriding claims of the family. Again, the original
institutions of the Jews having provided nowhere
for the privileges of Testatorship, the latter Rabbinical jurisprudence, which pretends to supply the casus
omissi of the Mosaic law, allows the power of Testation to attach when all the kindred entitled under
the Mosaic system to succeed have failed or are
undiscoverable. The limitations by which the ancient
German codes hedge in the testamentary jurisprudence which has been incorporated with them are




198            OLD GERMANIC WILLS.       CHAP. vt.
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 Roman 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 testament, 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 allodial possessions, are
much more easily alienated than they, and follow
much more lenient rules of devolution. Women and
the descendants of women succeed to them, obviously
on the principle that they lie outside the sacred precinct of the Agnatic brotherhood.  Now, it is on
these last descriptions of property, and on these only,
that the Testaments borrowed from Rome were at
first allowed to operate.
These few indications may serve to lend additional
plausibility to that which in itself appears to be the




CHAP. VT.      THE COMITIA CALATA.            199
most probable explanation of an ascertained fact in
the early history of Roman Wills. We have it stated
on abundant authority that Testaments, during the
primitive period of the Roman State, were executed
in the Comitia Calata, that is, in the Comitia Curiata,
or 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 another, that every Will at one era of Roman history
was a solemn legislative enactment. But there is
no necessity whatever for resorting to an explanation
which has the defect of attributing far too much
precision to the proceedings of the ancient assembly.
The proper key to the story concerning the execution of Wills in the Comitia Calata must no doubt
be sought in the oldest Roman law of intestate
succession. The canons of primitive Roman jurisprudence regulating the inheritance of relations from
each other were, so long as they remained unmodified
by the Edictal Law of the Praetor, to the following
effect:-First, the sui or direct descendants who had
never been emancipated succeeded. On the failure
of the sui, the Nearest Agnate came into their place,
that is, the nearest person or class of the kindred
who was or might have been under the same Patria
Potestas with the deceased.  The third and last degree came next, in which the inheritance devolved




200        JURISDICTION OF THIE 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 descended from a common ancestor.  Now the Patrician Assembly called the Comitia Curiata was a
Legislature in which Gentes or Houses were exclusively 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, thlt the
cognisance of Wills by the Comitia was connected
with the rights of the Gentiles, and was intended to
secure them in their privilege of ultimate inheritance. The whole apparent 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




CHAr. VI.       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 development or progressive decay.
The Testament to which the pedigree of all modern
Wills may be traced is not, however, the Testament
executed in the Calata Comitia, but another Testament designed to compete with it and destined to
supersede it.  The historical importance of this
early Roman YWill, 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 effect of the political
maxim, Plebs Gentemn non habet,' a Plebeian
cannot be a member of a house," was entirely to
exclude the Plebeians from  the Comitia Curiata.
Some critics have accordingly supposed that a
Plebeian could not have his Will read or recited
to the Patrician Assembly, and was thus deprived
of Testamentary privileges altogether. Others have
been satisfied to point out the hardships of having
to submit a proposed Will to the unfriendly jurisdiction of an assembly in which the Testator was
not represented. Whatever be the true view, a form




202            THE PLEBEIAN WILL.         CHAP. V1.
of Testament came into use, which has all the characteristics of a contrivance intended to evade some
distasteful obligation. The Will in question was a
conveyance inter vivos, a complete and irrevocable
alienation of the Testator's family and substance to
the person whom he meant to be his heir. The
strict rules of Roman law  must always have permitted such an alienation, but when the transaction
was intended to have a posthumous effect, there may
have been disputes whether it was valid for Testamentary purposes without the formal assent of the
Patrician Parliament. If a difference of opinion
existed on the point between the two classes of the
Roman population, it was extinguished, with many
other sources of heartburning, by the great Decemviral compromise. The text of the Twelve Tables
is still extant which says, "Pater familias uti de
pecunia tutelave rei suce legassit, 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 legislature of the Roman State, it still continued to hold
formal sittings for the convenience of private business.  Consequently, at a period long subsequent
to the publication of the Decemviral Law, there is
reason to believe that the Comitia Calata still assembled for the validation of Testaments. Its pro



CHAP. VI.  END OF THE COMITIA CALATA.        203
bable functions may be best indicated by saying
that it was a Court of Registration, with the understanding, however, that the Wills exhibited were not
enrolled, but simply recited to the members, who
were supposed to take note of their tenor and to
commit them to memory. It is very likely that this
form of Testament was never reduced to writing
at all, but at all events if the Will had been originally written, the office of the Comitia was certainly confined to hearing it read aloud, the document being retained afterwards in the custody of
the Testator, or deposited under the safeguard of
some religious corporation. This publicity may have
been one of the incidents of the Testament executed
in the Comitia Calata which brought it into popular
disfavour.  In the early years of the Empire the
Comitia still held its meetings, but they seem to
have lapsed into the merest form, and few Wills, or
none, were probably presented at the periodical
sitting.
It is the ancient Plebeian Will-the alternative
of the Testament just described-which in its remote
effects has deeply modified the civilisation of the
modern world. It acquired at Rome all the popularity which the Testament submitted to the Calata
Comitia appears to have lost. The key to all its
characteristics lies in its descent from  the mancipiun, or ancient Roman conveyance, a proceeding to




204              THE MANCIPATION.         CHAP. YI.
which we may unhesitatingly assign the parentage
of two great institutions without which modern
society can scarcely be supposed capable of holding
together, the Contract and the Will. The Mancipium,
or, as the word would exhibit itself in later Latinity,
the Mancipation, carries us back by its incidents
to the infancy of civil society. As it sprang from
times long anterior, if not to the 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 attention of the parties to the importance of the transaction, and to impress it on the memory of the witnesses.  The imperfection, too, of oral, as compared
with written, testimony necessitates the multiplication of the witnesses and assistants beyond what
in later times would be reasonable or intelligible
limits.
The Roman Mancipation required the presence
first of all of the parties, the vendor and vendee,
or we should perhaps rather say, if we are to use
modern legal language, the grantor and grantee.
There were also no less than five witnesses; and an
anomalous personage, the Libripens, who brought
with him a pair of scales to weigh the uncoined copper money of ancient Rome.  The Testament we are
considering-the Testament per ces et libram, "with




CHAP V. vI.  WILL WITH COPPER AND SCALES.    205
the copper and the scales," as it long continued to
be technically called-was an ordinary Mancipation with no change in the form and hardly any in
words. The Testator was the grantor; the five
witnesses and the libripens were present; and the
place of grantee was taken by a person known
technically as the familie emptor, the Purchaser
of the Family. The ordinary ceremony of a Mancipation was then proceeded with. Certain formal
gestures were made and sentences pronounced. The
YEmptor familice simulated the payment of a price
by striking the scales with a piece of money, and
finally the Testator ratified what had been done
in a set form of words called the "'Nuncupatio " or
publication of the transaction, a phrase which, I
need scarcely remind the lawyer, has had a long
history in Testamentary jurisprudence. It is necessary to attend particularly to the character of
the person called familice emptor. There is no
doubt that at first he was the Heir himself. The
Testator conveyed to him outright his whole' familia,"  that is, all the rights he enjoyed
over and through the family; his property, his
slaves, and all his ancestral privileges, together,
on the other hand, with all his duties and obligations.
With these data before us, we are able to note
several remarkable points in which the Mancipatory




206             MANCIPATORY WILLS.        CHAP. VI.
Testament, as it may be called, differed in its primitive form from a modern Will. As it amounted to a
conveyance out-and-out of the Testator's estate, it
was not revocable. There could be no new exercise
of a power which had been exhausted.
Again, it was not secret.  The Familia 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.
Mancipation was one of them, and therefore, strange
as it may seem, we are forced to conclude that the
primitive Roman Will took effect at once, even
though the Testator survived his act of Testation.
It is indeed likely that Roman citizens originally




CHAP. I.   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 Will. Still we must
believe that, if the Testator did recover, he could only
continue to govern his household by the sufferance
of his Heir.
Two or three remarks should be made before I explain how these inconveniences were remedied, and
how Testaments came to be invested with the characteristics now universally associated with them.  The
Testament was not necessarily written: at first, it
seems to have been invariably oral, and, even in later
times, the instrument declaratory of the bequests was
only incidentally connected with the Will and formed
no essential part of it. It bore in fact exactly the
same relation to the Testament which the deed leading the uses bore to the Fines and Recoveries of old
English law, or which the charter of feoffinent bore
to the feoffment itself. Previously, indeed, to the
Twelve Tables, no writing would have been of the
slightest use, for the Testator had no power of giving
legacies, and the only persons who could be advantaged by a will were the Heir or Co-heirs. But the
extreme 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 PURCHASER OF THE FAMILY.    CHAP. VT.
subject to legacies.  Written testamentary instruments assumed thereupon a new value, as a security
against the fraudulent refusal of the heir to satisfy
the legatees; but to the last it was at the Testator's
pleasure to rely exclusively on the testimony of the
witnesses, and to declare by word of mouth the
legacies which the familice emptor was commissioned
to pay.
The terms of the expression Emptorfamilice demand
notice. " Emptor " indicates that the Will was literally
a sale, and the word " familiae," when compared with
the phraseology in the Testamentary clause in the
Twelve Tables, leads us to some instructive conclusions. " Familia," in classical Latinity, means always
a man's slaves. Here, however, and generally in the
language of ancient Roman law, it includes all persons under his Potestas, and the Testator's material
property or substance is understood to pass as an
adjunct or appendage of his household.  Turning to
the law of the Twelve Tables, it will be seen that it
speaks of tutela rei suce, " the guardianship of his substance," a form of expression which is the exact reverse
of the phrase just examined. There does not therefore
appear to be any mode of escaping from the conclusion, that even at an era so comparatively recent as
that of the Decemviral compromise, terms denoting
"household" and "property " were blended in the
current phraseology. If a man's household had been




CHAP. vT.     THE PRMETORIAN WILL.           209
spoken of as his property we might have explained
the expression as pointing to the extent of the Patria
Potestas, but, as the interchange is reciprocal, we
must allow that the form of speech carries us back to
that primeval period in which property is owned by
the family, and the family is governed by the citizen,
so that the members of the community do not own
their property and their family, but rather own their
property through their family.
At an epoch not easy to settle with precision, the
Roman Prators 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 Proetor 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 Praetor's
successor, and repeated by the next in office, till at
length it formed a recognised portion of that body of
jurisprudence which from these successive incorporaP




*210          THE PRAETORIAN WILL.        CHAP. VI.
tions was styled the Perpetual or Continuous Edict.
On examining the conditions of a valid Pretorian
Will they will be plainly seen to have been determined by the requirements of the Mancipatory Testament, the innovating Praetor having obviously prescribed to himself the retention of the old formalities
just so far as they were warrants of genuineness or
securities against fraud.  At the execution of the
Mancipatory Testament seven persons had been present besides the Testator.  Seven witnesses were
accordingly essential to the Prartorian Will; two of
them  corresponding to the libripens and famnilice
emptor, who were now stripped of their symbolical
character, and were merely present for the purpose of
supplying their testimony. No emblematic ceremony
was gone through; the Will was merely recited; but
then it is probable (though not absolutely certain)
that a written instrument was necessary to perpetuate
the 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 Praetorian Court would not sustain it by special intervention,
unless each of the seven witnesses had severally affixed
his seal to the outside.  This is the first appearance
of sealing in the history of jurisprudence, considered
as a mode of authentication.  The use of seals, however, as mere 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




CHA. vi.    THE BONORUM 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 dispositions of a Testator, when, instead of being symbolised through the forms of mancipation, they were
simply evidenced by the seals of seven witnesses.
But it may be laid down as a general proposition, that
the principal qualities of Roman property were incommunicable except through processes which were
supposed to be coeval with the origin of the Civil Law.
The Pretor therefore could not confer an Inhzeritance
on anybody. He could not place the Heir or Co-heirs
in that very relation in which the Testator had himself stood to his own rights and obligations. All he
could do was to confer on the person designated as
Heir the practical enjoyment of the property bequeathed, and to give the force of legal acquittances to his payments of the Testator's debts.
When he exerted his powers to these ends, the
Praetor was technically said to communicate the
Bonorum  Possessio.  The 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
p 2




212      IMPROVEMENTS IN THE OLD WILL.   CHAP. YI.
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 against
being deluded by the analogy, we must always recollect that in one year the Bonorum Possessio was
operated upon by a principle of Roman Law known
as Usucapion, and the Possessor became Quiritarian
owner of all the property comprised in the inheritance.
We know too little of the older law of Civil Process to be able to strike the balance of advantage
and disadvantage between the different classes of
remedies supplied by the Pretorian Tribunal. It is
certain, however, that, in spite of its many defects, the
Mancipatory Testament by which the universitas juris
devolved at once and unimpaired was never entirely
superseded by the new 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 Cssars,
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




CHAP. VI.  IMPROVEMENTS IN THE OLD WILL.    213
acquired a vested interest in the Testator's Property
but was formally made aware of his rights. But the
age of Gaius permitted some unconcerned person to
officiate as Purchaser of the Family. The Heir,
therefore, was not necessarily informed of the succession to which he was destined; and Wills thenceforward acquired the property of secrecy. The substitution of a stranger for the actual Heir in the
functions of "Familia3 Emptor" had other ulterior
consequences. As soon as it was legalised, a Roman
Testament came to consist of two parts or stages,a Conveyance, which was a pure form, and a Nuncun
patio, 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 embodied. It was not probably till
attention had been quite drawn off from the imaginary
Conveyance, and concentrated on the Nuncupatio
as the essential part of the transaction, that Wills
were allowed to become revocable.
I have thus carried the pedigree of Wills some
way down in legal history. The root of it is the
old Testament "with the copper and the scales,."
founded on a Mancipation or Conveyance. This ancient Will has, however, manifold defects, which are
remedied, though only indirectly, by the Proetorian
law. Meantime the ingenuity of the Jurisconsults
effects, in the Common-Law Will or Mancipatory




214              THE ROMAN WILL.          CHAP. VLI
Testament, the very improvements which the Prmtor
may have concurrently carried out in Equity.  These
last ameliorations depend, however, on mere legal dexterity, and we see accordingly that the Testamentary
Law of the day of Gaius or Ulpian is only transitional. What changes next ensued we know not;
but at length just before the reconstruction of the
jurisprudence by Justinian, we find the subjects of
the Eastern Roman Empire employing a form of Will
of which the pedigree is traceable to the Pratorian
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 Mancipation, and was invalid unless sealed by seven witnesses.
Like the Mancipatory Will, it passed the Inheritance
and not merely a Bonorucm Possessio.  Several, however, of its most important features were annexed by
positive enactments, and it is out of regard to this
threefold derivation from the Praetorian Edict, from
the Civil Law, and from the Imperial Constitutions,
that Justinian speaks of the Law of Wills in his own
day as Jus Triperfiturn.  The new  Testament thus
described is the one generally known as the Roman
Will.  But it was the Will of the Eastern Empire
only; and the researches of Savigny have shown that
in Western Europe the old MNancipatory Testament,
with all its apparatus of conveyance, copper, and
scales, continued to be the form in use far down in
the Middle Ages.




CHAP. V1I.  DISINHERISON OF CHILDREN.        215
CHAPTER     VIIL
ANCIENT AND MODERN IDEAS RESPECTING WILLS AND
SUCCESSIONS.
ALTHOUGH there is much in the modern European
Law of Wills which is intimately connected with the
oldest rules of Testamentary disposition practised
among men, there are nevertheless some important
differences between ancient and modern ideas on the
subject of 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 engrafted on the Roman Civil Law with the view of
limiting the disinherison of children; we have the jurisdiction of the Prastor very actively exerted in the
same interest; and we are also presented with a new
remedy, very anomalous in character and of uncertain origin, called the Querela Inofficiosi Testamenti,
"the Plaint of an Unduteous Will," directed to the
reinstatement of the issue in inheritances from which
they had been unjustifiably excluded by a father's
Testament. Comparing this condition of the law




216         DISINHERISON OF CHILDREN.    CHAP. VIT.
with the text of the Twelve Tables which concedes
in terms the utmost liberty of Testation, several
writers have been tempted to interweave a good deal
of dramatic incident into their history of the Law
Testamentary.   The: tell us of the boundless license of disinherison in which the heads of families
instantly began to indulge, of the scandal and injury
to public morals which the new practices engendered,
and of the applause of all good men which hailed
the courage of the Pretor 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 possibility of its existence.'There is no likelihood that
Roman citizens began immediately to avail themselves freely of the power to disinherit.  It is
against all reason and sound appreciation of history
to suppose that the yoke of family bondage, still
patiently submitted to, as we know, where its pressure galled most cruelly, would be cast off in the
very particular in which its incidence in our own




CHAP. VII.  DISINHERISON OF CHILDREN.        217
day is not otherwise than welcome. The Law of
the Twelve Tables permitted the execution of Testaments in the only case in which it was thought
possible that they could be executed, viz., on failure
of children and proximate kindred.   It did not
forbid the disinherison of direct descendants, inasmuch as it did not legislate against a contingency
which no Roman lawgiver of that era could have contemplated.  No doubt, as the offices of family affection progressively lost the aspect of primary personal
duties, the disinherison of children was occasionally
attempted. But the interference of the Praetor, so
far from being called for by the universality of the
abuse, was doubtless first prompted by the fact that
such instances of unnatural caprice were few and
exceptional, and at conflict with the current morality.
The indications furnished by this part of Roman
Testamentary Law are of a very different kind. It
is remarkable that a Will never seems to have been
regarded by the Romans as a means of disinheriting
a Family,- or of affecting the unequal distribution of
a patrimony. The rules of law preventing its being
turned to such a purpose, increase in number and
stringency as the jurisprudence unfolds itself; and
these rules correspond doubtless with the abiding
sentiment of Roman society, as distinguished from
occasional variations of feeling in individuals.  It




218        FEELING RESPECTING INTESTACY   cHAP. vir.
would rather seem as if the Testamentary Power
were chiefly valued for the assistance it gave in
macking 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 privileges; no curse appears to have been bitterer than
that which imprecated on an enemy that he might
die without a Will.  The feeling has no counterpart,
or none that is easily recognisable, in the forms of
opinion which exist at the present day. All men at
all times will doubtless prefer chalking out the destination of their substance to having their office performed for them by the law; but the Roman passion
for Testacy is distinguished from the mere desire
to indulge caprice by its intensity; and it has, of
course, nothing whatever in common with that
pride of family, exclusively the creation of feudalism, which accumulates one description of property
in the hands of a single representative. It is probable, a priori, that it was something in the rules of
Intestate Succession which caused this vehement preference for the distribution of property under a Testament over its distribution by law. The difficulty,




CHIAP. VI. V  ROMAN INTESTATE SUCCESSION.    219
however, is, that on glancing at the Roman Law of
Intestate Succession in the form which it wore for
many centuries before Justinian shaped it into that
scheme of inheritance which has been almost universally adopted by 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 persons 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 Will, and allow
the Law to do as it pleased with their assets. I
think, however, if we look a little closely at the preJustinianean scale of Intestate Succession, we shall
discover the key to the mystery. The texture of the
law consists of two distinct parts. One department
of rules comes from the Jus Civile, the Common-Law
of Rome; the other from the Edict of the Pramtor.
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.  CHAP. YII.
Between these three orders, the Prsetor 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 Succession exclusively, and at which the arrangements
of the Edict were non-existent, or not consistently
carried out. We cannot doubt that, in its infancy,
the Proetorian 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 Succession, which the Romans must at this period have
practised, account, I think-and more than account
-for that vehement distaste for an Intestacy to
which Roman society during so many ages remained
constant.  The order of succession was this: on the
death of a citizen, having no will or no 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,




cmAP. VII.  ANCIENT INTESTATE SUCCESSION.    221
the nearest grade of the Agnatic kindred succeeded,
but no part of the inheritance was given to any relative united (however closely) with the dead man
through female descents. All the other branches
of the family were excluded, and the inheritance
escheated to the Gentiles, or entire body of Roman
citizens bearing the same name with the deceased.
So that on failing to execute an operative Testament,
a Roman of the era under examination left 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 describing is likely to have existed at the very moment
when Roman society was in the first stage of its
transition from its primitive organisation in detached
families. The empire of the father had indeed received one of the earliest blows directed at it through
the recognition of Emancipation as a legitimate
usage, but the law, still considering the Patria
Potestas to be the root of family connection, perse



.229    FEELING RESPECTING INTESTACY.  CHAP. VII.
vered in looking on the emancipated children as
strangers to the rights of kinship and aliens from
the blood. We cannot, however, for a moment suppose that the limitations of the family imposed by
legal pedantry had their counterpart in the natural
affection of parents. Family attachments must still
have retained that nearly inconceivable sanctity and
intensity which belonged to them  under the Patriarchal system; and so 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 demonstration, rather than a severance, of affection-a
mark of grace and favour accorded to the best-beloved
and most esteemed of the children. If sons thus
honoured above the rest were absolutely deprived of
their heritage by an Intestacy, the reluctance to incur it requires no farther explanation. We might
have assumed 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.
But what was the Family? The Law defined it one




CHAP. vYH.  FEELING RESPECTING INTESTACY.    223
way-natural affection another. In the conflict between the two, the feeling we would analyse grew up,
taking the form of an enthusiasm for the institution
by which the dictates of affection were permitted to
determine the fortunes of its objects.
I regard, therefore, the Roman horror of Intestacy as a monument of a very early conflict between
ancient law and slowly changing ancient sentiment
on the subject of the Family.   Some passages in
the Roman Statute-Law, and one statute in particular which limited the capacity for inheritance
possessed by women, must have contributed to keep
alive the feeling; and it is the general belief that
the system of creating Fidei-Commissa, or bequests
in trust, was devised to evade the disabilities imposed by those statutes. But the feeling itself, in
its remarkable intensity, seems to point back to some
deeper antagonism between law and opinion; nor
is it at all wonderful that the improvements of
jurisprudence by the Prator should not have extinguished it. Everybody conversant with the philosophy 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 Will which regards it as conferring




224              MODERN WILLS.          CHAP. 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  consolidated itself. When modern jurisprudence first
shows itself in the rough, Wills are rarely allowed to
dispose with absolute freedom of a dead man's assets.
Wherever at this period the descent of property
was regulated by Will-and over the greater part
of Europe moveable or personal property was the
subject of Testamentary disposition-the exercise
of the Testamentary power was seldom allowed to
interfere with the right of the widow to a definite
share, and of the children to certain fixed proportions, of the devolving inheritance. The shares of
the children, as their amount shows, were determined by the authority of Roman law. The provision for the widow was attributable to the exertions of the Church, which never relaxed its solicitude
for the interest of wives surviving their husbands
winning, perhaps, one of the most arduous of its triumphs when, after exacting for two or three centuries
an express promise from the husband at marriage to
endow his wife, it at length succeeded in engrafting
the principle of Dower on the Customary Law of
all Western Europe. Curiously enough, the dower
of lands proved a more stable institution than the




CHAP. Vi.  WIDOW'S SHARE OF MOVEABLES.      225
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 Will, and, even when the claims of
the widow continued to be respected, the privileges of the children were obliterated from jurisprudence. We need not hesitate to attribute the
change to the influence of Primogeniture. As the
Feudal law of land practically disinherited all the
children in favour of one, the equal distribution even
of those sorts of property which might have been
equally divided ceased to be viewed as a duty. Testaments were the principal instruments employed
in producing inequality, and in this condition of
things originated the shade of difference which shows
itself between the ancient and the modern conception of a Will.  But, though the liberty of
bequest, enjoyed through Testaments, was thus an
accidental fruit of Feudalism, there is no broader
distinction than that which exists between a system
of free Testamentary disposition and a system, like
that of the Feudal land-law, under which property
descends compulsorily in prescribed lines of devolution. This truth appears to have been lost sight of
by the authors of the French Codes.  In the social
Q




226            FRENCH LAW OF WILLS.        CHAP. VII.
fabric which they determined to destroy, they saw
Primogeniture  resting,chiefly  on  Family  settlements, but they also perceived that Testaments
were frequently employed to give the eldest son
precisely the same preference which was reserved
to him under the strictest of entails. In order,
therefore, to make sure of their work, they not
only rendered it impossible to prefer the eldest
son to the rest in marriage-arrangements, but they
almost expelled Testamentary succession from the
law, lest it should be used to defeat their fundamental principle of an equal distribution of property among children at the parent's death.    The
result is that they have established a system   of
small perpetual entails which is infinitely nearer
akin to the system of feudal Europe than would be
a perfect liberty of bequest.  The land-law of England, "the Herculaneum of Feudalism," is certainly
much more closely allied to the land-law of the Middle Ages than that of any Continental country, and
Wills with us are frequently used to aid or imitate
that preference of the eldest son and his line which
is a nearly universal feature in marriage settlements of real property.  But nevertheless feeling and
opinion in this country have been profoundly affected
by the practice of free Testamentary disposition; and
it appears to me that the state of sentiment in a
great part of French society, on the subject of the




CHAP. vII.       PRIMOGENITURE.              227
conservation of property in families, is much liker
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 jurisprudence. Though I have not paused to explain my
expressions, it may have been noticed that I have
frequently spoken of a number of " co-heirs" as
placed by the Roman Law of Succession on the
same footing with a single Heir.  In point of fact,
we know of no period of Roman jurisprudence at
which the place of the Heir, or Universal Successor, might not have been taken by a group of coheirs. 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
trace of Primogeniture. The mode of distribution
is the same throughout archaic jurisprudence. It
certainly seems that, when civil society begins and
families cease to hold together through a series of
generations, the idea which spontaneously suggests
itself is to divide the domain equally among the members of each successive generation, and to reserve no
Q 2




228              PRIMOGENITURE.          CHAP. VII.
privilege to the eldest son or stock.  Some peculiarly significant hints as to the close relation of this
phenomenon to primitive thought are furnished by
systems yet more archaic than the Roman. Among
the Hindoos, the instant a son is born, he acquires a
vested right in his father's property, which cannot
be sold without recognition of his joint-ownership.
On the son's attaining full age, he can sometimes
compel a partition of the estate, even against the
consent of the parent; and, should the parent acquiesce, one son can always have a partition even
against the will of the others.  On such partition
taking place, the father has no advantage over his
children, except that he has two of the shares instead of one.   The ancient law of the German
tribes was exceedingly similar.  The allod or domain
of the family was the joint property of the father
and his sons. It does not, however, appear to have
been habitually divided even at the death of the
parent, and in the same way the possessions of a
Hindoo, however divisible theoretically, are so rarely
distributed in fact, that many generations constantly
succeed each other without a partition taking place,
and thus the Family in India has a perpetual tendency
to expand into the Village Community, under conditions which I shall hereafter attempt to elucidate.
All this points very clearly to the absolutely equal
division of assets among the male children at death as




CHAP. VII.       PRIMOGENITURE.              229
the practice most usual with society at the period
when family dependency is in the first stages of
disintegration.  Here then emerges the historical
difficulty of Primogeniture. The more clearly we
perceive that, when the Feudal institutions were in
process of formation, there was no source in the
world whence they could derive their elements but
the Roman Law of the provincials on the one hand
and the archaic customs of the barbarians on the
other, the more are we perplexed at first sight by
our knowledge that neither Roman nor barbarian
was accustomed to give any preference to the eldest
son or his line in the succession to property.
Primogeniture did not belong to the Customs which
the barbarians practised on their first establishment
within the Roman Empire. It is known to have had
its origin in the benefices or beneficiary gifts of the
invading chieftains. These benefices, which were occasionally conferred by the earlier immigrant kings,
but were distributed on a great scale by Charlemagne,
were grants of Roman provincial land to be holden
by the beneficiary on condition of military service.
The allodial proprietors do not seem to have followed
their sovereign on distant or difficult enterprises, and
all the grander expeditions of the Frankish chiefs and
of Charlemagne were accomplished with forces composed of soldiers either personally dependent on the
royal house or compelled to serve it by the tenure of




23.0           BENEFICES AND FIEFS.       CHAP. YII.
their land.  The benefices, however, were not at
first in any sense hereditary.  They were held at
the pleasure of the grantor, or at most for the
life of the grantee; but still, from the very outset,
no effort seems to have been spared by the beneficiaries to enlarge the tenure, and to continue their
lands in their family after death.  Through the feebleness of Charlemagne's successors these attempts
were universally successful, and the Benefice gradually transformed itself into the hereditary Fief. But,
though the fiefs were hereditary, they did not necessarily descend to the eldest son. The rules of succession which they followed were entirely determined
by the terms agreed upon between the grantor
and the beneficiary, or imposed by one of them
on the weakness of the other.  The original tenures
were therefore extremely various; not indeed so
capriciously various as is sometimes asserted, for all
which have hitherto been described present some
combination of the modes of succession familiar to
Romans and to barbarians, but still exceedingly miscellaneous. In some of them the eldest son and his
stock undoubtedly succeeded to the fief before the
others, but such successions, so far from being universal, do not even appear to have been general.
Precisely the same phenomena recur during that
more recent transmutation of European society which
entirely substituted the feudal form of property for




CHAP. VTI.      ALLODS AND FIEFS.             231
the domainia (or Roman) and the allodial (or Germnan).  The allods were wholly absorbed by the fiefs.
The greater allodial proprietors transformed themselves into feudal lords by conditional alienations of
portions of their land to dependants; the smaller
sought an escape from the oppressions of that terrible
time by surrendering their property to some powerful
chieftain, and receiving it back at his hands on condition 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 various as the conditions which the tenants made with
their new chiefs or were forced to accept from them.
As in the case of the benefices, the succession to
some, but by no means 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



232        DIFFUSION OF PRIMOGENITURE.    CHAP. VI,
ments, the Pactes de Famille of France and HausGesetze of Germany, which universally stipulated
that lands held by knightly service should descend
to the eldest son. Ultimately the law resigned itself
to follow inveterate practice, and we find that in all
the bodies of Customary Law, which were gradually
built up, the eldest son and stock are preferred in the
succession to estates of which the tenure is free and
military. As to lands held by servile tenures (and
originally all tenures were servile which bound the
tenant to pay money or bestow manual labour), the
system of succession prescribed by custom differed
greatly in different countries and different provinces.
The more general rule was that such lands were
divided equally at death among all the children, but
still in some instances the eldest son was preferred,
in some the youngest.   But Primogeriture usually
governed the inheritance of that class of estates, in
some respects the most important of all, which were
held by tenures that, like the English Socage, were
of later origin than the rest, and were neither altogether 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 better security for the military service he required when
the fief descended to a single person, instead of being
distributed among a number on the decease of the




CHAP VII.  DIFFUSION OF PRIMOGENITURE.       233
last holder. Without denying that this consideration
may partially explain the favour gradually acquired
by Primogeniture, I must point out that Primogeniture became a custom of Europe much more through
its popularity with the tenants than through any
advantage it conferred on the lords. For its origin,
moreover, the reason given does not account at all.
Nothing in law springs entirely from a sense of convenience. There are always certain ideas existing
antecedently on which the sense of convenience works,
and of which it can do no more than form some new
combination; and to find these ideas in the present
case is exactly the problem.
A valuable hint is furnished to us from a quarter
fruitful of such indications.  Although in India the
possessions of a parent are divisible at his death, and
may be divisible during his life, 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. Sovereignties descend therefore to the eldest son, and where
the affairs of the Village Community, the corporate
unit of Hindoo society, are confided to a single
manager, it is generally the eldest son who takes up
the administration at his parent's death. All offices,




234       SUCCESSION TO POLITICAL POWER.  CHAP. ViI.
indeed, in India, tend to become hereditary, and, when
their nature permits it, to vest in the eldest member
of the oldest stock.  Comparing these Indian successions with some of the ruder social organisations
which have survived in Europe almost to our own
day, the conclusion suggests itself that, when Patriarchal power is not only domestic but political, it is
n6t distributed among all the issue at the parent's
death, but is'the birthright of the eldest son.  The
chieftainship of a Highland clan, for example, followed
the order of Primogeniture.  There seems, in truth,
to be a form of family dependency still more archaic
than any of those which we know from the primitive
records of organised civil societies.  The Agnatic
Union of the kindred in ancient Roman law, and a
multitude of similar indications, point to a period at
which all the ramifying branches of the family tree
held together in one organic whole; and it is no presumptuous conjecture, that, when the corporation thus
formed by the kindred was in itself an independent
society, it was governed by the eldest male of the
oldest line. It is true that we have no actual knowledge of any such society. Even in the most elementary communities, family-organisations, as we
know them, are at most imperia in imperio. But the
position of some of them, of the Celtic clans in particular, was sufficiently near independence within historical times to force on us the conviction that they




6HAP. vII. ANCIENT FORMS OF PRIMOGENITURE.   235
were once separate imperia, and that Primogeniture
regulated the succession to the chieftainship.  It
is, however, necessary to be on our guard against
modern associations with the term of law. We are
speaking of a family-connection still closer and more
stringent than any with which we are made acquainted
by Hindoo society or ancient Roman law. If the
Romnan Paterfamilias was visible steward of the family possessions, if the Hindoo father is only joint
sharer with his sons, still more emphatically must the
true patriarchal chieftain be merely the administrator
of a common fund.
The examples of succession by Primogeniture
which were found among the Benefices may, therefore, have been imitated from a system of familygovernment known to the invading races, though
not in general use. Some ruder tribes may have still
practised it, or, what is still more probable, society
may have been so slightly removed from its more
archaic condition that the minds of some men spontaneously recurred to it, when they were called upon
to settle the rules of inheritance for a new form of
property. But there is still the question, Why did
Primogeniture gradually supersede every other principle of succession? The answer, I think, is, that
European society decidedly retrograded during the
dissolution of the Carlovingian empire. It sank a
point or two back even from the miserably low degree




236       FALL OF CARLOVINGIAN EMPIRE.    CHAP. yIT.
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, civil society no longer cohering, men universally flung themselves back on a social organisation
older than the beginnings of civil communities. The
lord with his vassals, during the ninth and tenth
centuries, may be considered as a patriarchal household, recruited, not as in the primitive times by
Adoption, but by Infeudation; and to such a confederacy, succession by Primogeniture was a source
of strength and durability.  So long as the land was
kept together on which the entire organisation rested,
it was powerful for defence and attack; to divide
the land was to divide the little society, and voluntarily to invite aggression in an era of universal
violence.  We may be perfectly certain that into this
preference for Primogeniture there entered no idea
of disinheriting the bulk of the children in favour of
one. Everybody would have suffered by the division
of the fief. Everybody was a gainer by its consolidation.  The Family grew stronger by the concentration of power in the same hands; nor is it likely that
the lord who was invested with the inheritance had
any advantage over his brethren and kinsfolk in occupations, interests, or indulgences. It would be a singular anachronism to estimate the privileges succeeded




CHAP. vii. EARLIER AND LATER PRIMOGENTUIEE.  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 confederacies 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 feudalism, the Primogeniture which seems to have prevailed never transformed itself into the Primogeniture
of the later feudal Europe. When the group of kinsmen ceased to be governed through a series of generations by a hereditary chief, the domain which had
been managed for all appears to have been equally
divided among all. Why did this not occur in the
feudal world? If during the confusions of the first
feudal period the eldest son held the land for the behoof of the whole family, why was it that when feudal
Europe had consolidated itself, and regular communities were again established, the whole family did
not resume that capacity for equal inheritance which
had belonged to Roman and 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 barbarian and archaic, but as soon as Courts and lawyers




238       MODERN VIEW OF CHIEFTAINSHIP.    n. vIIA. 
were called in to interpret and define it, the principles
of interpretation which they applied to it were those
of the latest Romanjurisprudence, 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 involved in the conception of proprietorship, but quite
undefined and quite incapable of definition.  The
later Roman jurisprudence, however, like our own
law, looked upon uncontrolled power over property
as equivalent to ownership, and did not, and, in fact,
could not, take notice of liabilities of such a kind,
that the very conception of them 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 fbrtune, 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. VII.  FORMS OF PRIMOGENITURE.            239
chieftain over the domains which gave sustenance to
the clan, Scottish jurisprudence had long since passed
the point at which it could take notice of the vague
limitations on completeness of dominion imposed by
the claims of the clansmen, and it was inevitable
therefore that it should convert the patrimony of
many into the estate of one.
For the sake of simplicity, I have called the mode
of succession Primogeniture whenever a single son
or descendant succeeds to the authority over a household or society. It is remarkable, however, that in
the few very ancient examples which remain to us of
this sort of succession, it is not always the eldest son,
in the sense familiar to us, who takes up the representation.  The form of Primogeniture which has
spread over Western Europe has also been perpetuated among the Hindoos, and there is every
reason to believe that it is the normal form.  Under
it, not only the eldest son, but the eldest line is always
preferred.  If the eldest son fails, his eldest son has
precedence not only over brothers but over uncles;
and, if he too fails, the same rule is followed in the
next generation.  But when the succession is not
merely to civil but to political power, a 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 PRIMOGENITURE.    CHAP. VII.
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 till he reaches the age of fitness
for government. The guardianship is generally that
of the male Agnates; but it is remarkable that the
contingency supposed is one of the rare cases in
which ancient 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 Frarce
-which, whatever be its origin, is doubtless of the
highest antiquity-preferred the queen-mother to all
other claimants for the Regency, at the same time
that it rigorously excluded all females from  the
throne.  There is, however, another mode of obviating the inconvenience attending the devolution
of sovereignty on an infant heir, and it is one which
would doubtless occur spontaneously to rudely organised 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. VII.    CELTIC PRIMOGENITURE.          241
and political society were not yet even rudimentarily
separated, have brought down this rule of succession
to historical times.  With them, it seems to have
existed in the form of a positive canon, that, failing
the eldest son, his next brother succeeds in priority
to all grandsons, whatever be their age at the moment
when the sovereignty devolves. Some writers have
explained the principle by assuming that the Celtic
customs took the last chieftain as a sort of root or
stock, and then gave the succession to the descendant who should be least remote from him; the uncle
thus being preferred to the grandson as being nearer
to the common root. No objection can be taken to
this statement if it be merely intended as a description of the system of succession; but it would be a
serious error to conceive the men who first adopted
the rule as 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 acquainted is the primary form, in the tradition that
R




242             MAHOMETAN RULE.         CHAP. VII.
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 preserved an ancient Arabian custom, inheritances of
property are divided equally among sons, the daughters taking a half share; but if any of the children
die before the division of the inheritance, leaving
issue behind, these grandchildren are entirely excluded by their uncles and aunts. Consistently with
this principle, the succession, when political authority devolves, is according to the form of Primogeniture which  appears to have obtained among
the Celtic societies. In the two great Mahometan
families of the West, the rule is believed to be, that
the uncle succeeds to the throne in preference to the
nephew, though the latter be the son of an elder
brother; but though this rule has been followed
quite recently both in Egypt and in Turkey, I am
informed that there has always been some doubt
as to its governing the devolution of the Turkish
sovereignty. The policy of the Sultans has in fact




CHAP. vI.          POLYGAMY.                  43
generally prevented cases for its application fromn
occurring, and it is possible that their wholesale
massacres of their younger brothers may have been
perpetrated quite as much in the interest of their
children  as for the  sake of making away with
dangerous competitors for the throne. It is evident,
however, that in polygamous societies the form of
Primogeniture will always tend to vary. Many considerations may constitute a claim on the succession,
the rank of the mother, for example; or her degree in
the affections of the father. Accordingly, some of
the Indian iAahometan 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 namingc
an eldest son.
E 2




244       NATURAL MODES OF ACQUISITION. ciAP. viii.
CHAPTER     VIII.
THE EARLY 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 possessing, at first sight, either much speculative or
much practical interest. The wild animal which is
snared or killed by the hunter, the soil which is
added to our field by the imperceptible deposits of a
river, the tree which strikes its roots into our ground,
are each said by the Roman lawyers to be acquired
by us naturally. The older jurisconsults had doubtless observed that such acquisitions were universally
sanctioned by the usages of the little societies around
them, and thus the lawyers of a later age, finding
them classed in the ancient Jus Gentium, and perceiving them to be of the simplest description, allotted
them a place among the ordinances of Nature. The
dignity with which they were invested has gone on
increasing in modern times till it is quite out of pro



cAP. VIII.         OCCUPANCY.               245
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," Occupatio 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 nullius-things which have not or have never had an
owner-can only be ascertained by enumerating
them. Among things which never lad 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 riot an
owner are moveables which have been abandoned,
lands which have been deserted, and (an anomalous
but most formidable item) the property of an enemy.
In all these objects the full rights of dominion were
acquired by the Occupant, who first took possession
of them with the intention of keeping them as his
own-an intention which, in certain cases, had to be
manifested by specific acts. It is not difficult, I
think, to understand the universality which caused
the practice of Occupancy to be placed by one generation of Roman lawyers in the Law common to all
Nations, and the simplicity which occasioned its being




246          LAW OF CAPTURE IN WAR.      CHAP. VIII.
attributed by another to the Law of Nature. But
for its fortunes in modern legal history we are less
prepared by a priori considerations.  The Roman
principle of Occupancy, and the rules into which the
jurisconsults expanded it, are the source of all modern
International Law on the subject of Capture in War
and of the acquisition of sovereign rights in newly discovered countries. They have also supplied a theory
of the Origin of Property, which is at once the
popular theory, and the theory which, in one form or
another, is acquiesced in by the great majority of
speculative jurists.
I have said that the Roman principle of Occupancy
bas determined the tenor of that chapter of International Law which is concerned with Capture in War.
The Law of Warlike Capture derives its rules from
the assumption that communities are remitted to a
state of nature by the outbreak of hostilities, and that,
in the artificial natural condition thus produced, the
institution of private property falls into abeyance so
far as concerns the belligerents.  As the later writers
on the Law of Nature have always been anxious to
maintain that private property was in some sense
sanctioned by the system which they were expounding, the hypothesis that an enemy's property is res
nullius has seemed to them perverse and shocking,
and they are careful to stigmatise it as a mere fiction
of jurisprudence. But, as soon as the Law of Nature




CHAP. VIII.  ANCIENT LAW OF CAPTURE.         247
is traced to its source in the Jus Gentium, we see at
once how the goods of an enemy came to be looked
upon as nobody's property, and therefore as capable
of being acquired by the first occupant. The idea
would occur spontaneously to persons practising the
ancient forms of Warfare, when victory dissolved the
organisation of the conquering army and dismissed
the soldiers to indiscriminate plunder. It is probable,
however, that originally it was only moveable property which was thus permitted to be acquired by
the Captor. We know on independent authority that
a very different rule prevailed in ancient Italy as to
the acquisition of ownership in the soil of a conquered country, and we may therefore suspect that
the application of the principle of occupancy to land
(always a matter of difficulty) dates from the period
when the Jus Gentium was becoming the Code of
Nature, and that it is the result of a generalisation
effected by the jurisconsults of the golden age. Their
dogmas on the point are preserved in the Pandects of
Justinian, and amount to an unqualified assertion
that enemy's property of every sort is res nullius to
the other belligerent, and that Occupancy, by which
the Captor makes it his own, is an institution of
Natural Law. The rules which International jurisprudence derives from these positions have sometimes
been stigmatised as needlessly indulgent to the ferocity and cupidity of combatants, but the charge has




248      OCCUPANCY AND WARLIKE CAPTURE. CHAP. VITI.
been made, I think, by persons who are unacquainted
with the history of wars, and who are consequently
ignorant how great an exploit it is to command
obedience for a rule of any kind. The Roman principle of Occupancy, when it was admitted into the
modern law of Capture in War, drew with it a number
of 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 maxims
were received, Warfare instantly assumed a more
tolerable complexion. If the Roman law of Occupancy is to be taxed with having had pernicious influence on any part of the modern Law of Nations,
there is 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 finding of a jewel, the Publicists forced into their service
a doctrine altogether unequal to the task expected
from it. Elevated into extreme importance by the
discoveries of the great navigators of the 15th and
16th centuries, it raised more disputes than it solved.
The greatest uncertainty was very shortly found 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. VIII.    RULE OF DISCOVERY.            249
nature of the acts which were necessary to complete
the adprehensio or assumption of sovereign possession. 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 Portuguese. Our own countrymen, without expressly denying 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 encroachments of the New England Colonists on the territory
of the French King continued for almost a century
longer. Bentham was so struck with the confusion
attending the application of the legal principle, that
he went out of his way to eulogise the famous Bull
of Pope Alexander the Sixth, dividing the undiscovered 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 principle than the rule of Public Law which gave half a




250            ORIGIN OF PROPERTY.      CHAP. viif.
continent to the monarch whose servants had fulfilled
the conditions required by Roman jurisprudence for
the acquisition of property in a valuable object which
could be covered by the hand.
To all who pursue the inquiries which are the
subject of this volume, Occupancy is pre-eminently
interesting on the score of the service it has been
made to perform for speculative jurisprudence, in
furnishing a supposed explanation of the origin of
private property. It was once universally believed
that the proceeding implied in Occupancy was identical with the process by which the earth and its
fruits, which were at first in common, became the
allowed property of individuals.  The course of
thought which led to this assumption is not difficult
to understand, if we seize the shade of difference
which separates the ancient from the modern conception of Natural Law. The Roman lawyers had
laid down that Occupancy was one of the Natural
modes of acquiring property, and they undoubtedly
believed that, were mankind living under the institutions of Nature, Occupancy would be one of their
practices. How far they persuaded themselves that
such a condition of the race had ever existed, is a
point, as I have already stated, which their language
leaves in much uncertainty; but they certainly do
seem to have made the conjecture, which has at all
times possessed much plausibility, that the institution




CHAP. VIn.     ORIGIN OF PROPERTY.           251
of property was not so old as the existence of mankind.   Modern jurisprudence, accepting all their
dogmas without reservation, went far beyond them
in the eager curiosity with which it dwelt on the
supposed state of Nature.  Since then it had received the position that the earth and its fruits
were once res nullius, and since its peculiar view of
Nature led it to assume without hesitation that the
human race had actually practised the Occupancy
of res nullius long before the organisation of civil societies, the inference immediately suggested itself that
Occupancy was the process by which the "no man's
goods" of the primitive world became the private
property of individuals in the world of history. It
would be wearisome to enumerate the jurists who
have subscribed to this theory in one shape or another, and it is the less necessary to attempt it
because Blackstone, who is always a faithful index
of the average opinions of his day, has summed them
up in his 2nd book and 1st chapter.
" The earth," he writes, "and all things therein
were the general property of mankind from the iinmediate 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            BLACKSTONE'S THEORY.     CHAP. VIII.
lasted so long as he was using it, and no longer;
or to speak with greater precision, the right of possession continued for the same time only that the
act of possession lasted. Thus the ground was in
common, and no part was the permanent property
of any man in particular; yet whoever was in the
occupation of any determined spot of it, for rest, for
shade, or the like, acquired for the time a sort of
ownership, from which it would have been unjust
and contrary to the law of nature to have driven
him by force, but the instant that he quitted the use
or occupation of it, another might seize it without
injustice."  He then proceeds to argue that " when
mankind increased in number, it became necessary
to entertain conceptions of more permanent dominion, and to appropriate to individuals not the immediate use only, but the very substance of the thing
to be used."
Some ambiguities of expression in this passage
lead to the suspicion that Blackstone did not
quite understand the meaning of the proposition
which he found in his authorities, that property in
the earth's surface was first acquired, under the law
of Nature, by the occupant; but the limitation
which designedly or through 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




CHAP. V1II.    BLACKSTONE'S THEORY.          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 afterwards this right, while it remained exclusive, became
perpetual. Their object in so stating their theory
was to reconcile the doctrine that in the state of
Nature res nullius became property through Occupancy, with the inference which they drew from the
Scriptural history that the Patriarchs did not at
first 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 inquiring whether the circumstances which make up
his picture of a primitive society are more or less
probable than other incidents which could be imagined with equal readiness. 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 particular spot of ground for rest or shade would be
permitted to retain it without disturbance.  The
chances surely are that his right to possession would
be exactly 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 SAVIGNY.      CHP. VIII.
is perfectly idle from the very baselessness of the
positions themselves. What mankind did in the primitive state may not be a hopeless subject of inquiry,
but of their motives for doing it it is 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 sentiments may have been created and engendered by
those very circumstances of which, by the hypothesis, they are to be stripped.
There is an aphorism of Savigny which has been
sometimes thought to countenance a view   of the
origin of property somewhat similar to the theories
epitomised by Blackstone. The great German jurist
has laid down that all property is founded on Adverse Possession ripened by Prescription. It is only
with respect to Roman law that Savigny makes this
statement, and before it can fully be appreciated
much labour must be expended in explaining and
defining the expressions employed.  His meaning
will, however, be indicated with sufficient accuracy
if we consider him to assert that, how far soever we
carry our inquiry into the ideas of property received




CHAP. VIII.   APHORISM OF SAVIGNY.           255
among the Romans, however closely we approach in
tracing them. to the infancy of law, we can get no
farther than a conception of ownership involving the
three elements in the canon-Possession, Adverseness 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 conclusion can be looked for from  investigations into
any system of laws which are pushed farther back
than the point at which these combined ideas constitute the notion of proprietary right.  Meantime,
so far from bearing out the popular theory of the
origin of property, Savigny's canon is particularly
valuable as directing our attention to its weakest
point. In the view of Blackstone and those whom
he follows, it was the mode of assuming the exclusive
enjoyment which mysteriously affected the minds of
the fathers of our race. But the mystery does not
reside here. It is not wonderful that property began
in adverse possession.  It is not surprising that the
first proprietor should have been the strong man
armed who kept his goods in peace. But why it was
that lapse of time created a sentiment of respect for
his possession-which is the exact source of the




256          TRUE ORIGIN OF OCCUPANCY.    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 uncertain  at best, concerning the  early history of
proprietary right, I venture to state my opinion that
the popular impression in reference to the part
played by Occupancy in the first stages of civilisation directly reverses the truth. Occupancy is the
advised assumption of physical possession; and the
notion that an act of this description confers a title
to " res nullius," so far from  being characteristic
of very early societies, is in all probability the
growth of a refined jurisprudence and of a settled
condition of the laws. It is only when the rights of
property have gained a sanction from long practical 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
infrequency and uncertainty of proprietary rights
which distinguish the beginnings of civilisation.
Its true basis seems to be, not an instinctive bias




CHAP. VIII.  OBJECTIONS TO POPULAR THEORY.   257
towards the institution of Property, but a presumption, arising out of the long continuance of that
institution, that everything ought to have an owner.
When possession is taken of a " res nullius," that is,
of an object which is not, or has never been, reduced
to dominion, the possessor is permitted to become
proprietor from a feeling that all valuable things
are naturally the subjects of an exclusive enjoyment,
and that in the given case there is no one to invest
with the right of property except the Occupant.
The Occupant, in short, becomes the owner, because
all things are presumed to be somebody's property
and because no one can be pointed out as having
a better right than he to the proprietorship of this
particular thing.
Even were there no other objection to the descriptions 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
s




258       OBJECTIONS TO POPULAR THEORY.  CHAP. VIII.
"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 descended from  the Natural Law   of the Romans,
which differed principally from their Civil Law  in
the account which it took of Individuals, and which
has rendered precisely its greatest service to civilisation in enfranchising the individual from the authority of archaic society. But Ancient Law, it must
again be repeated, knows next to nothing of Individuals. It is concerned not with Individuals, but
with Families, not with single human beings, but
groups. Even when the law of the State has succeeded in 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. The life of each citizen is not regarded as
limited by birth and death; it is but a continuation
of the existence of his forefathers, and it will be
prolonged in the existence of his descendants.
The Roman distinction between the Law of Persons and the Law of Things, which though extremely
convenient is entirely artificial, has evidently done
much to divert inquiry on the subject before us from
the true direction. The lessons learned in discussing
the Jus Personarum have been forgotten where the
Jus Rerum is reached, and Property, Contract, and




CHAP. vIII. INFLUENCE OF ROMAN CLASSIFICATIONS.  259
Delict, have been considered as if no hints concerning their original nature were to be gained from the
facts ascertained respecting the original condition
of Persons. The 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 together, 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 our obtaining
any clue to the early history of property, if we
confine our notice to the proprietary rights of individuals. It is more than likely that joint-ownership, and not separate ownership, is the really
archaic institution, 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
s2




260        INDIAN VILLAGE COMMUNITIES.  CHAP. VIIT.
is the normal state of proprietary right, and that
ownership in common by groups of men is only
the exception to a general rule. There is, however,
one community which will always be carefully examined by the inquirer who is in quest of any lost
institution of primeval society. How far soever any
such institution may have 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 in which it
was originally reared. It happens that, among the
Hindoos, we do find a form of ownership which ought
at once to rivet our attention from its exactly fitting
in with the ideas which our studies in the Law of
Persons would lead us to entertain respecting the
original condition of property. The Village Community of India is at once an organised patriarchal
society and an assemblage of co-proprietors.  The
personal relations to each other of the men who
compose it are indistinguishably confounded with
their proprietary rights, and to the attempts of
English functionaries to separate the two may be
assigned some of the most formidable miscarriages
of Anglo-Indian administration. The Village Community is known to be of immense antiquity. In
whatever direction research has been pushed into
Indian history, general or local, it has always found
the Community in existence at the farthest point of




CHAP. VIII.       CO-OWNEESHIP.               261
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 institution of a society which never willingly surrenders
any one of its usages to innovation. Conquests and revolutions seem to have swept over it without disturbing or displacing it, and the most beneficent systems
of government in India have always been those which
have recognised it as the basis of administration.
The mature Roman law, and modern jurisprudence 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, Neno in comnmunione 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 always on its way to become proprietorship in common.
The process has been adverted to already. As soon
as a son is born, he acquires a vested interest in his
father's substance, and on attaining years of discretion he is even, in certain contingencies, permitted
by the letter of the law to call for a partition of the
family estate. As a fact, however, a division rarely
takes place even at the death of the fathers and the
property constantly remains undivided for several




262           VILLAGE COMMUNITIES.     CHAP. VTII.
generations, though every member of every generation has a legal right to an undivided share in it.
The domain thus held in common is sometimes administered by an elected manager, but more generally,
and in some provinces always, it is managed by the
eldest agnate, by the eldest representative of the
eldest line of the stock.  Such an assemblage of
joint proprietors, a body of kindred holding a domain
in common, is the simplest form of an Indian Village
Community, but the Community is more than a
brotherhood of relatives and more than an association
of partners. It is an organised society, and besides
providing for the management of the common fund,
it seldom fails to provide, by a complete staff of
functionaries, for internal government, for police, for
the administration of justice, and for the apportionment of taxes and public duties.
The process which I have described as that under
which a Village Community is formed, may be regarded 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 information that men of alien extraction have always,
from time to time, been engrafted on it, and a mere
purchaser of a share may generally, under certain
conditions, be admitted to the brotherhood. In the




CHAP. VIII.    VILLAGE COMMUNITIES.          263
South of the Peninsula there are often Communities
which appear to have sprung not from one but from
two or more families: and there are some whose
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 common 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 Village
Communities, observes of them  (History of India,
i. 126): " The popular notion is that the Village
landholders are all descended from one or more individuals who settled the Village; and that the only
exceptions are formed by persons who have derived
their rights by purchase or otherwise from members
of the original stock.  The supposition is confirmed
by the fact that, to this day, there are only single
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 consent of the Village, and the purchaser steps exactly




264          TYPE OF THE COMMUNITY.      CHAP. VIII
into his place and takes up all his obligations. If a
family becomes extinct, its share returns to the common stock."
Some considerations which have been offered in the
fifth chapter of this volume will assist the reader, I
trust, in appreciating the significance of Elphinstone's
language. No institution of the primitive world is
likely to have been preserved to our day, unless it has
acquired an elasticity foreign to its original nature
through some vivifying legal fiction. The Village
Community then is not necessarily an assemblage of
blood-relations, but it is either such an assemblage or
a body of co-proprietors formed on the model of an
association of kinsmen.  The type with which it
should be compared is evidently not the Roman
Family, but the Roman Gens or House. The Gens
was also a group on the model of the family; it was
the family extended by a variety of fictions of which
the exact nature was lost in antiquity. In historical
times, its leading characteristics were the very two
which Elphinstone remarks in the Village Community.
There was always the assumption of a common origin,
an assumption sometimes notoriously at variance with
fact: and, to repeat the historian's words,' if a family
became extinct, its share returned to the common
stock," In old Roman law, unclaimed inheritances
escheated to the Gentiles. It is further suspected
by all who have examined their history that the




CHAP. VIII.  TYPE OF THE COMMUNITY.          265
Communities, like the Gentes, have been very generally adulterated by the admission of strangers, but
the exact mode of absorption cannot now be ascertained. At present, they are recruited, as Elphinstone tells us, by the admission of purchasers, with
the consent of the brotherhood.  The acquisition of
the adopted member is, however, of the nature of a
universal succession; together with the share he has
bought, he succeeds to the liabilities which the vendor
had incurred towards the aggregate group. He is an
Emptor Familia, 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 Roman commonwealth, so strenuously insisted on as "essential to the
legalisation of an Adoption or the confirmation of a
Will.
The tokens of an extreme antiquity are discoverable in almost every single feature of the Indian
Village Communities. We have so many independent
reasons for suspecting that the infancy of law is distinguished by the prevalence of co-ownership, by
the intermixture of personal with proprietary rights,
and by the confusion of public with private duties,
that we should be justified in deducing many important conclusions from our observation of these




266             RUSSIAN VILLAGES.      COAP. VIII.
proprietary brotherhoods, even if no similarly compounded societies could be detected in any other
part of the world. It happens, however, that much
earnest curiosity has been very recently attracted to
a similar set of phenomena in those parts of Europe
which have been most slightly affected by the feudal
transformation of property, and which in many
important particulars have as close an affinity with
the Eastern as with the Western world.   The researches of M. de Haxthausen, M. 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 organised communities like those of India. It is true
that these villages are always in theory the patrimony
of some noble proprietor, and the peasants have within historical times been converted into the predial,
and to a great extent into the personal, serfs of the
seignior. But the pressure of this superior ownership
has never crushed the ancient organisation of the
village, and it is probable that the enactment of the
Czar of Russia, who is supposed to have introduced
serfdom, was really intended to prevent the peasants
from abandoning that co-operation without which the
old social order could not long be maintained. In
the assumption of an agnatic connection between the
villagers, in the blending of personal rights with privileges of ownership, and in a variety of spontaneous




CHAP. vIII. RUSSIAN AND CROATIAN VILLAGES.   267
provisions for internal administration, the Russian
village appears to be a nearly exact repetition of the
Indian Community; but there is one important difference which we note with the greatest interest.
The co-owners of an Indian village, though their property is blended, have their rights distinct, and this
separation of rights is complete and continues indefinitely. The 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 community, according to their
number. This repartition having been effected, the
rights of families and of individuals are again allowed
to branch out into various lines, which they continue
to follow till another period of division comes round.
An even more curious variation from this type of
ownership occurs in some of those countries which
long formed a debateable land between the Turkish
Empire and the possessions of the House of Austria.
In Servia, in Croatia, and the Austrian Sclavonia,
the villages are also brotherhoods of persons who are
at once co-owners and kinsmen; but there the internal arrangements of the community differ from those
adverted to in the last two examples. The substance
of the common property is in this case neither divided




268       VARIETIES OF THE COMMUNITY.     CHAP. vII1.
in practice nor considered in theory as divisible, but
the entire land is cultivated by the combined labour
of all the villagers, and the produce is annually distributed among the households, sometimes according
to their supposed wants, sometimes according to rules
which give to particular persons a fixed share of the
usufruct. All these practices are traced by the jurists
of the East of Europe to a principle which is asserted
to be found in the earliest Sclavonian laws, the principle 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 mode of transition from ancient to modern
ownerships, obscure at best, would have been infinitely obscurer if several distinguishable forms of
Village 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




CHAP. VIII.  VARIETIES OF THE COMMUNITY.     269
food to the heads of the households under their jurisdiction at the very shortest intervals, and sometimes
day by day. A periodical distribution is also made
to the Sclavonian villagers of the Austrian and
Turkish provinces by the elders of their body, but
then it is a distribution once for all of the total
produce of the year. In the Russian villages, however, the substance of the property ceases to be looked
upon as indivisible, and separate proprietary claims
are allowed freely to grow up, but then the progress
of separation is peremptorily arrested after it has
continued a certain time. In India, not only is there
no indivisibility of the common fund, but separate
proprietorship in parts of it may be indefinitely
prolonged and may branch out into any number of
derivative ownerships, the de facto partition of the
stock being, however, checked by inveterate usage,
and by the rule against the admission of strangers
without the consent of the brotherhood. It is not of
course intended to insist that these different forms of
the Village Community 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




270  PROBLEM AS TO ORIGIN OF PROPERTY.  CHAP. vin.
of a community. Our studies in the Law of Persons
seemed to show us the Family expanding into the
Agnatic group of kinsmen, then the Agnatic group
dissolving into separate households; lastly, the household supplanted by the individual; and it is now
suggested that each step in the change corresponds to
an analogous alteration in the nature of Ownership.
If there be any truth in the suggestion, it is to be
observed that it materially affects the problem which
theorists on the origin of Property have generally
proposed to themselves. The question-perhaps an
insoluble one-which they have mostly agitated is,
what were the motives which first induced men to
respect each other's possessions? It may still be put.
without much hope of finding an answer to it, in the
form of an inquiry into the reasons which led one
composite group to keep aloof from the domain of
another. But, if it be true that far the most important passage in the history of Private Property
is its gradual separation from the co-ownership of
kinsmen, then the great point of inquiry is identical with that which lies on the threshold of all
historical law-what were the motives which originally prompted men to hold together in the family
union? To such a question, Jurisprudence, unassisted by other sciences, is not competent to give a
reply. The fact can only be noted.
The undivided state of property in ancient




CHAP. vIII.  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. I have already
compared Ancient Law to Modern International
Law, in respect of the size and complexity of the
corporate associations, whose rights and duties it
settles. As the contracts and conveyances known to
ancient law are contracts and conveyances to which
not single individuals, but organised companies of
men, are parties, they are in the highest degree ceremonious; 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 demand the presence of an inordinate number of witnesses. From these peculiarities, and others allied
to them, springs the universally unmalleable character 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.




272  ANCIENT DIFFICULTIES OF ALIENATION.  CHAP. VIII.
Where these impediments do not exist, or can be
surmounted, the act of conveyance itself is generally
burdened with a perfect load of ceremony, in which
not one iota can be safely neglected. Ancient law
uniformly refuses to dispense with a single gesture,
however grotesque; with a single syllable, however
its meaning may have been forgotten; with a single
witness, however superfluous may be his testimony.
The entire solemnities must be scrupulously completed by persons legally entitled to take part in it,
or else the conveyance is null, and the seller is
re-established in the rights of which he had vainly
attempted to divest himself.
These various obstacles to the free circulation of
the objects of use and enjoyment, begin of course to
make themselves felt as soon as society has acquired
even a slight degree of activity, and the expedients
by which advancing communities endeavour to overcome them form the staple of the history of Property.
Of such expedients there is one which takes precedence of the rest from its antiquity and universality.
The idea seems to have spontaneously suggested
itself to a great number of early societies, to classify
property into kinds. One kind or sort of property
is placed on a lower footing of dignity than the
others, but at the same time is relieved from  the
fetters which antiquity has imposed on them. Subsequently, the superior convenience of the rules




CHAP. VIII.    KINDS OF PROPERTY.            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 communicated to the classes which stand conventionally
higher. The history of Roman Property Law is the
history of the assimilation of Res Mancipi to Res Nec
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.
The only natural classification of the objects of
enjoyment, the only classification which corresponds
with an essential difference in the subject-matter) is
that which divides them into Moveables and Immoveables. Familiar as is this classification to jurisprudence, it was very slowly developed by Roman
law, from which we inherit it, and was only finally
adopted by it in its latest stage.  The classifications
of Ancient Law have sometimes a superficial resemblance to this. They occasionally divide property
into categories, and place 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
T




274         ANCIENT KINDS OF PROPERTY.    CHAP. VIII.
from various rights to which they have a close affinity. Thus, the Res Mancipi of Roman Law included
not only land but slaves, horses, and oxen. Scottish
law ranks with land a certain class of securities, and
Hindoo law associates it with slaves. English law,
on the other hand, parts leases of land for years from
other interests in the soil, and joins them to personalty under the name of chattels real. Moreover,
the classifications of Ancient Law are classifications
implying superiority and inferiority; while the distinction between 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. The Res Mancipi, however, did certainly
at first enjoy a precedence over the Res Nec Mancipi, as did heritable property in Scotland, and realty
in England, over the personalty to which they were
opposed. The lawyers of all systems have spared no
pains in striving to refer these classifications to 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




CRAP. VIII.  ANCIENT CLASSIFICATIONS         275
articles not enumerated among the favoured objects
seem to have been placed on a lower standing, because the knowledge of their value was posterior to
the epoch at which the catalogue of superior property was settled. They were at first unknown, rare,
limited in their uses, or else regarded as mere appendages to the privileged objects. Thus, though the'
Roman Res Mancipi included a number of moveable
articles of great value, still the most costly jewels
were never allowed to take rank as Res Mancipi, because they were unknown to the early Romans. In
the same way chattels real in England are said to have
been degraded to the footing of personalty, from the
infrequency and valuelessness of such estates under
the feudal land-law. But the grand point of interest
is the continued degradation of these commodities
when their importance had increased and their number had multiplied. Why were they not successively
included among the favoured objects of 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 experience; and in this way the designation covering the
T 2




276   DEGRADATION OF INFERIOR PROPERTY.  CHAP. ViI.
best-known forms of property is denied to articles
which exactly resemble them in being objects of
enjoyment and subjects of right. But to these influences, which exert peculiar force in a subject-matter
so stable as that of law, are afterwards added others
more consistent with progress in enlightenment and
in the conceptions of general expediency.  Courts
and lawyers become at last 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 underrating the inconveniences of the ancient modes of
transfer. Our instruments of conveyance are writ.
ten, so that their language, well pondered by the
professional draftsman, is rarely defective in accuracy.  But an ancient conveyance was not written,
but acted. Gestures and words took the place of
written technical phraseology, and any formula mispronounced, or symbolical act omitted, would have
vitiated the proceeding as fatally as a material mis



CHAP. VLII.  DEFINITION OF RES 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 required for the alienation of land alone, the chances
of mistake are not considerable in the transfer of a
description of property which is seldom got rid of
with much precipitation.  But the higher class of
property in the ancient world comprised not only
land but several of the commonest and several of the
most valuable 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 incomplete forms, and
held, therefore, under imperfect titles.
The Res Mancipi of old Roman law were, land,in historical times, land on Italian soil,-slaves and
beasts of burden, such as horses and oxen. It is
impossible to doubt that the objects which make up
the class are the instruments of agricultural labour,
the commodities of first consequence to a primitive
people. Such commodities were at first, I imagine,
called emphatically Things or Property, and the mode
of conveyance by which they were transferred was




278              RES NEC MANCIPI.        CHAP. VIIn.
called a Mancipium or Mancipation; but it was not
probably till much later that they received the distinctive appellation of Res Mancipi, "' Things which
require a Mancipation." By their side there may
have existed or grown up a class of objects, for which
it was not worth while to insist upon the full ceremony of Mancipation. It would be enough if, in
transferring these last from owner to owner, a part
only of the ordinary formalities were proceeded with,
namely, that actual delivery, physical transfer, or
tradition, which is the most obvious index of a change
of proprietorship. Such commodities were the Res
Nec Mancipi of the ancient jurisprudence, " things
which did not require a Mancipation," little prized
probably at first, and not often passed from one group
of proprietors to another. While, however, the list of
the Res Mancipi was irrevocably closed, that of the
Res Nec Mancipi admitted of indefinite expansion;
and hence every fresh conquest of man over material
nature added an item  to the Res Nec 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 intrinsic inferiority being thus dissipated, men began
to observe the manifold advantages of the simple
formality which accompanied their transfer over the
more intricate and more venerable ceremonial.  Two
of the agents of legal amelioration, Fictions and
Equity, were assiduously employed by the Roman




CHAP. VII.          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 jurisprudence the difference between Res Mancipi and Res
Nee Mancipi disappears, and Tradition or Delivery
becomes the one great conveyance known to the law.
The marked preference which the Roman lawyers
very early gave to Tradition caused them to assign
it a place in their theory which has helped to blind
their modern disciples to its true history.  It was
classed among the "natural" modes of acquisition,
both because it was generally practised among the
Italian tribes, and because it was a process which
attained its object by the simplest mechanism. If
the expressions of the jurisconsults be pressed, they
undoubtedly imply that Tradition, which belongs to
the Law Natural, is more ancient than Mancipation,
which is an institution of Civil Society; and this, I
need not say, is the exact reverse of the truth.
The distinction between Res Mancipi and Res Nec
Mancipi is the type of a class of distinctions to which
civilisation is much indebted, distinctions which run
through the whole mass of commodities, placing a few
of them in a class by themselves, and relegating the
others to a lower category. The inferior kinds of




280        OTHER ANCIENT CLASSIFICATIONS.  CHAP. VIII.
property are first, from disdain and disregard, released from the perplexed ceremonies in which primitive law delights, and then afterwards, in another state
of intellectual progress, the simple methods of transfer
and recovery which have been allowed to come into
use serve as a model which condemns by its convenience and simplicity the cumbrous solemnities inherited from ancient days.  But in some societies, the
trammels in which 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 necessary condition of its alienation. In
the same spirit, the general usage of the old Germanic
peoples-it is remarkable that the Anglo-Saxon customs seem to have been an exception-forbade alienations without the consent of the male children; and
the primitive law of the Sclavonians even 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 accordingly, Ancient
Law, when once launched on a course of improvement,
encounters them with a distinction of another character, a distinction classifying property, not according
to its nature but according to its origin. In India,
where there are traces of both systems of classifica



CHAP. VIA.  INHERITANCES AND ACQUISITIONS.   281
tion, the one which we are considering is exemplified in the difference 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 wholly 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 Germans. I have repeatedly stated that the allod, though
not inalienable, was commonly transferable with the
greatest difficulty; and moreover, it descended exclusively to the agnatic kindred. Hence an extraordinary variety of distinctions came to be recognised,
all intended to diminish the inconveniences inseparable from allodial property. The wehrgeld, for example, or composition for the homicide of a relative,
which occupies so large a space in German jurisprudence, formed no part of the family domain, and
descended according to rules of succession altogether
different. Similarly, the reipus, or fine leviable on
the re-marriage of a widow, did not enter into the
allod of the person to whom it was paid, and followed




282       INHERITANCES AND ACQUISITIONS. CHAP. VIII.
a 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 categories, to each of which different rules applied. This
exuberance of classification, which may strike us as
strange in so rude a people as the German conquerors
of the Empire, is doubtless to be 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 commodities which lay outside the allod, to their source in
Roman jurisprudence, from  which they were probably borrowed at widely distant epochs, and in
fragmentary importations. How far the obstacles to
the free circulation of property were surmounted by
such contrivances, we have not the means even of
conjecturing, for the distinctions adverted to have no
modern history. As I before explained, the allodial
form of property was entirely lost in the feudal, and
when the consolidation of feudalism was once com



CHAP. vIII.     LAND AND GOODS.             283
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
differed from that of Rome in distinctly considering immoveable property to be more dignified than
moveable.  Yet this one sample is enough to
show the importance of the class of expedients
to which it belongs. In all the countries governed
by systems based on the French codes, that is,
through much the greatest part of the Continent of
Europe, the law of moveables, which was always
Roman law, has superseded and annulled the feudal
law of land. England is the only country of importance in which this transmutation, though it has gone
some way, is not nearly accomplished. Our own, too,
it may be added, is the only considerable European
country in which the separation of moveables from
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




284                PRESCRIPTION.         CHAP. VIII.
only instance in which English jurisprudence, standing apart from the main current of legal modification,
has reproduced phenomena of archaic law.
I proceed to notice one or two more contrivances
by which the ancient trammels of proprietary right
were more or less successfully relaxed, premising that
the scheme of this treatise only permits me to mention those which are of great antiquity. On one of
them in particular it is necessary to dwell for a moment or two, because persons unacquainted with the
early history of law will not be easily persuaded that
a principle, of which modern jurisprudence has very
slowly and with the greatest difficulty obtained the
recognition, was really familiar to the very infancy of
legal science. There is no principle in all law which
the moderns, in spite of its beneficial character, have
been so loath to adopt and to carry to its legitimate
consequences as that which was known to the Romans
as Usucapion, and which has descended to modern
jurisprudence under the name of 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 certain period became the property of the possessor.
The period of possession was exceedingly shortone or two years, according to the nature of the
commodities —and in historical times Usucapion
was only allowed to operate when possession had




CHAP. VIII.  INFLUENCE OF CANON LAW.        285
commenced in a particular way; but I think it
likely that at a less advanced epoch possession was
converted into ownership under conditions even less
severe than we read of in our authorities. As I
have said before, I am far from asserting that the
respect of men for de facto possession is a phenomenon which jurisprudence can account for by itself,
but it is very necessary to remark that primitive
societies, in adopting the principle of Usucapion,
were not beset with any of the speculative doubts
and hesitations which have impeded its reception
among the moderns. Prescriptions were viewed by
the modern lawyers, first with repugnance, afterwards
with reluctant approval. In several countries, including our own, legislation long declined to advance
beyond the rude device of barring all actions based
on a wrong which had been suffered earlier than
a fixed point of time in the past, generally the first
year of some preceding reign; nor was it till the
middle ages had finally closed, and James the First
had ascended the throne of England, that we obtained a true statute of limitation of a very imperfect 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. VIII.
with sacred or quasi-sacred interests, very naturally
regarded the privileges which they conferred as incapable of being lost through disuse however prolonged; and in accordance with this view, the spiritual jurisprudence, when afterwards consolidated, was
distinguished by a marked leaning against Prescriptions.  It was the fate of the Canon Law, when held
up by the clerical lawyers as a pattern to secular legislation, to have a peculiar influence on first principles.
It gave to the bodies of custom which were formed
throughout Europe far fewer express rules than did
the Roman law, but then it seems to have communicated a bias to professional opinion on a surprising
number of fundamental points, and the tendencies
thus produced progressively gained strength as each
system was developed. One of the dispositions it
produced was a disrelish for Prescriptions; but I do
not know that this 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 neglected, was in point of fact indestructible.  The
remains of this state of feeling still exist.  Wherever
the philosophy of law is earnestly discussed, questions respecting the speculative basis of Prescription
are always hotly disputed; and it is still a point of
the greatest interest in France and Germany, whether




CHAP. VIII.     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 interposition of the law in its desire to have a finis litium.
But no such scruples troubled the mind of early
Roman society. Their ancient usages directly took
away the ownership of everybody who had been out
of possession, under certain circumstances, during
one or two years. What was the exact tenor of the
rule of Usucapion in its earliest shape, it is not
easy to say; but, taken with the limitations which
we find attending it in the books, it was a most useful security against the mischiefs of a too cumbrous
system of conveyance. In order to have the benefit
of Usucapion, it was necessary that the adverse possession should have begun in good faith, that is, with
belief on the part of the possessor that he was lawfully acquiring the property, and it was further required that the commodity should have been transferred to him by some mode of alienation which,
however unequal to conferring a complete title in the
particular case, was at least recognised by the law.
In the case therefore of a Mancipation, however
slovenly the performance might have been, yet if it
had been carried so far 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 RECOVERIES.     CHAP. virI.
to their legal genius as the use which they made of
Usucapion. The difficulties which beset them were
nearly the same with those which embarrassed and
still embarrass the lawyers of England.  Owing to
the complexity of their system, which as yet they
had neither the courage nor the power to reconstruct, actual right was constantly getting divorced
from technical right, the equitable 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 ownerships 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 Mancipation 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 Er;glish
legal history, was of immemorial antiquity in Roman
law; such indeed is its apparent age that some




CHAP. VMr.    COLLUSIVE RECOVERIES.          289
German civilians, not sufficiently aware of the light
thrown on the subject by the analogies of English
law, have thought it even older than the Mancipation.  I speak of the Cessio in Jure, a 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 litigation; the defendant made default; and the commodity
was of course adjudged to the plaintiff.  I need
scarcely remind the English lawyer that this expedient suggested itself to our forefathers, and produced those famous Fines and Recoveries which did
so much to undo the harshest trammels of the feudal
land-law.  The Roman and English contrivances
have very much in common and illustrate each other
most instructively, but there is this difference between them, that the object of the English lawyers
was to remove 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 suggests itself as soon as Courts of Law are in steady
operation, but are nevertheless still under the empire of primitive notions. In an advanced state of
legal opinion, tribunals regard collusive litigation
as an abuse of their procedure; but there has
always been a time when, if their forms were
U




290         PROPERTY AND POSSESSION.    CnAP. v~II.
scrupulously complied with, they never dreamed of
looking further.
The influence of Courts of Law and of their procedure upon Property has been most extensive, but the
subject is too large for the dimensions of this treatise,
and would carry us further down the course of legal
history than is consistent with its scheme.  It is
desirable, however, to mention, that to this influence
we must attribute the importance of the distinction
between Property and Possession-not, indeed, the
distinction itself, which (in the language of an eminent
English civilian) is the same thing as the distinction
between the legal right to act upon a thing and the
physical power to do so-but the extraordinary importance which the distinction has obtained in the
philosophy of law. Few educated persons are so
little versed in legal literature as not to have heard
that the language of the Roman jurisconsults on the
subject of Possession long occasioned the greatest
possible perplexity, and that the genius of Savigny
is supposed to have chiefly proved itself by the solution which he discovered for the enigma. Possession,
in fact, when employed by the Roman lawyers, appears to have contracted a shade of meaning not
easily accounted for. The word, as appears from its
etymology, must have originally denoted physical
contact or physical contact resumeable at pleasure;
but as actually used, without any qualifying epithet,




CHAP. YIII.  PROPERTY AND POSSESSION.         291
it signifies not simply physical detention, but physical
detention coupled with the intention to hold the thing
detained as one's own. Savigny, following Niebuhr,
perceived that for this anomaly there could only be a
historical origin. He pointed out that the Patrician
burghers of Rome, who had become tenants of the
greatest part of the public domain at nominal rents,
were, in the view of the old Roman law, mere possessors, but then they were possessors intending to keep
their land against all comers. They, in truth, put
forward a claim almost identical with that which has
recently been advanced in England by the lessees of
Church lands. Admitting that in theory they were the
tenants-at-will of the State, they contended that time
and undisturbed enjoyment had ripened their holding
into a species of ownership, and that it would be
unjust to eject them for the purpose of redistributing
the domain.  The association of this claim with the
Patrician tenancies, permanently influenced the sense
of "possession."  Meanwhile the only legal remedies
of which the tenants could avail themselves, if ejected
or threatened with disturbance, were the Possessory
Interdicts, summary processes of Roman law which
were either expressly devised by the Praetor for their
protection, or else, according to another theory, had
in older times been employed for the provisional
maintenance of possessions pending the settlement of
questions of legal right. It came, therefore, to be
2




292          PROPERTY AND POSSESSION.    CHAP. vin.
understood that everybody who possessed property as
his own had the power of demanding the Interdicts,
and, by a system of highly artificial pleading, the
Interdictal process was moulded into a shape fitted
for the trial of conflicting claims to a disputed possession.  Then commenced a movement which, as
M]r. John Austin pointed out, exactly reproduced
itself in English law. Proprietors, dormini, 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 effect of
seriously deteriorating both English and Roman jurisprudence.  The Roman law owes to it those subtleties
on the subject of Possession which have done so much
to discredit it, while English law, after the actions
which it appropriated to the recovery of real property
had fallen into the most hopeless confusion, got rid
at last of the whole tangled mass by a heroic remedy.
No one can doubt that the virtual abolition of the
English real actions which took place nearly thirty
years since was a public benefit, but still persons sensitive to the harmonies of.jurisprudence will lament




CHAP. vi1.       LAW AND EQUITY.             293
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 distinction between jurisdictions. Equitable property in
England is simply property held under the jurisdiction of the Court of Chancery. At Rome, the Pras
tor's Edict introduced its novel principles in the guise
of a promise that under certain circumstances a particular action or a particular plea would be granted 
and, accordingly, the property in bonis, or Equitable
Property, of Roman Law was property exclusively
protected by remedies which had their source in the
Edict.  The mechanism by which equitable rights
were saved from being overridden by the claims of
tile legal owner was somewhat different in the two
systems.  With us their independence is secured
by the Injunction of the Court of Chancery. Since,
however, Law and Equity, while not as yet consolidated, 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 PROPERTY.      CHAP. Yir
property that belonged in equity to another. But
the practical operation of both systems was nearly
the same. Both, by means of a distinction in procedure, were able to preserve new forms of property in
a sort of provisional existence, until the time should
come when they were recognised by the whole law.
In this way, the Roman Praetor gave an immediate
right of property to the person who had acquired a
Res Mancipi by mere delivery, without waiting for
the ripening of Usucapion. Similarly he in time recognised an ownership in the Mortgagee, who had at
first been a mere "bailee " or depositary, and in the
Emphyteuta, or tenant of land which was subject to
a fixed perpetual rent. Following a parallel line of
progress, the English Court of Chancery created a
special proprietorship for the Mortgagor, for the
Cestui que Trust, for the Married Woman who had
the advantage of a particular kind of settlement, and
for the Purchaser who had not yet acquired a complete legal ownership. All these are examples in
which forms of proprietary right, distinctly new,
were recognised and preserved. But indirectly Property has been affected in a thousand ways by equity,
both in England and at Rome. Into whatever corner
of jurisprudence its authors pushed the powerful instrument in their command, they were sure to meet,
and touch, and more or less materially modify the
law of property. When in the preceding pages I have




CHAP. VIII.  FEUDAL VIEW OF OWNERSHIP.      295
spoken of certain ancient legal distinctions and expedients as having powerfully affected the history of
ownership, I must be understood to mean that the
greatest part of their influence has arisen from the
hints and suggestions of 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 Ownership would be to write its history down to our own
days. I have alluded to it principally because several
esteemed contemporary writers have thought that in
the Roman severance of Equitable from Legal property
we have the clue to that difference in the conception
of Ownership, which apparently distinguishes the law
of the middle ages from the law of the Roman Empire. The leading characteristic of the feudal conception is its recognition of a double proprietorship,
the superior ownership of the lord of the fief coexisting with the inferior property or estate of the tenant.
Now, this duplication of proprietary right looks, it is
urged, extremely like a generalised form of the Roman distribution of rights over property into Quiritarian or legal, and (to use a word of late origin)
Bonitarian or equitable.  Gaius 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 BARBARIAN LAW.    CHAP. VIII.
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 Empire, it may well be that they learned this distinction,
which afterwards bore remarkable fruit. In favour
of this theory, it must at all events be admitted that
the element of Roman law in the various bodies of
barbarian custom has been very imperfectly examined. The erroneous or insufficient theories which
have served to explain Feudalism resemble each other
in their tendency to draw off attention from this particular ingredient in its texture.  The older investigators, who 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 existing, in that pride of nationality which has led German
writers to exaggerate the completeness of the social
fabric which their forefathers had built up before
their appearance in the Roman world. One or two
English inquirers who looked in the right quarter
for the foundations of the feudal system, failed nevertheless to conduct their investigations to any satisfactory result, either from searching too exclusively
for analogies in the compilations of Justinian, or from




CKAP. VII.  ROMAN AND BARBARIAN 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 probably produced the greatest part of its effects before
the legislation of Justinian, and before the preparation of these compendia. It was not the reformed
and purified jurisprudence of 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
reason for believing that we have received, in written
records, more than a fraction of the fixed rules which
were practised among themselves by the members of
the conquering tribes.  If we can once persuade




298             THE EMPHYTEUSIS.        CHAP. VIII.
ourselves that a considerable element of debased
Roman law already existed in the barbarian systems,
we shall have done something to remove a grave
difficulty. The German Law of the conquerors and
the Roman law of their subjects would not have combined if they had not possessed more affinity for each
other than refined jurisprudence has usually for the
customs of savages. It is extremely likely that the
codes of the barbarians, archaic as they seem, are
only a compound of true primitive usage with halfunderstood Roman rules, and that it was the foreign
ingredient which enabled them to coalesce with a
Roman jurisprudence that had already 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 appreciated by barbarians; and, moreover, it can scarcely
be understood unless Courts of Law are contemplated in regular operation. But the strongest reason
against this theory is the existence in Roman law of
a form of property-a creation of Equity, it is true
-which supplies a much simpler explanation of the
transition from one set of ideas to the other. This




CHAP. rII.     SYSTEMS OF TENANCY.          299
is the Emphyteusis, upon which the Fief of the
middle ages has often been fathered, though without
much knowledge of the exact share which it had in
bringing feudal ownership into the world.  The
truth is that the Emphyteusis, not probably as yet
known by its Greek designation, marks one stage in
a current of ideas which led ultimately to feudalism.
The first mention in Roman history of estates larger
than could be farmed by a Paterfamilias, with his
household of sons and slaves, occurs when we come
to the holdings of the Roman patricians.  These
great proprietors appear to have had no idea of any
system of farming by free tenants. Their latifundia
seem to have been universally cultivated by slavegangs, under bailiffs who were themselves slaves or
freedmen; and the only organisation attempted appears to have consisted in dividing the inferior slaves
into small bodies, and making them the peculium of
the better and trustier sort, who thus acquired a kind
of interest in the efficiency of their labour.  This
system was, however, especially disadvantageous to
one class of estated proprietors, the Municipalities.
Functionaries in Italy were changed with the rapidity which often surprises us in the administration
of Rome herself; so that the superintendence of a
large landed domain by an Italian corporation must
have been excessively imperfect. Accordingly, we are
told that with the municipalities began the practice




300                THE COLONI.           CHAP. VIIT.
of letting out agri vectiqales, that is, of leasing land
for a perpetuity to a free tenant, at a fixed rent, and
under certain conditions. The plan was afterwards
extensively imitated by individual proprietors, and
the tenant, whose relation to the owner had originally been determined by his contract, was subsequently recognised by the Prsetor as having himself
a qualified proprietorship, which in time became
known as an Emphyteusis. From this point the history of tenure parts into two branches. In the course
of that long period during which our records of the
Roman Empire are most incomplete, the slave-gangs
of the great Roman families became transformed
into the coloni, whose origin and situation constitute
one of the obscurest questions in all history.  We
may suspect that they were formed partly by the elevation of the slaves, and partly by the 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. VIII.     THE EMPHYTEUSIS.             801
feudal structure, they continued in many countries to
render to the landlord precisely the same dues which
they had paid to the Roman dominus, and from a
particular class among them, the coloni medietarii,
who reserved half the produce for the owner, are
descended the metayer tenantry, who still conduct
the cultivation of the soil in almost all the South of
Europe. On the other hand, the Emphyteusis, if we
may so interpret the allusions to it in the Corpus
Turis, became a favourite and beneficial modification
of property; and it may be conjectured that wherever
free farmers existed, it was this tenure which regulated their interest in the land. The Praetor, as has
been said, treated the Emphyteuta as a true proprietor.
When ejected, he was allowed to reinstate himself by
a Real Action, the distinctive badge of proprietary
right, and he was protected from disturbance by the
author of his lease so long as the canon, or quit-rent,
was punctually paid. But at the same time it must
not be supposed that the ownership of the author of
the lease was either extinct or dormant. It was kept
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 example of the double ownership which characterised
feudal property, and one, moreover, which is much
simpler and much more easily imitated than the




302            ORIGIN OF TENURE.        CHAP. VII.
juxtaposition of legal and equitable rights.  The
history of the Roman tenure does not end, however5
at this point. We have clear evidence that between
the great fortresses which, disposed along the line of
the Rhine and Danube, long secured the frontier of
the Empire against its barbarian neighbours, there
extended a succession of strips of land, the agri
li7mitrophi, which were occupied by veteran soldiers of
the Roman army on the terms of an Emphyteusis.
There was a double ownership.  The Roman State
was landlord of the soil, but the soldiers cultivated
it without disturbance so long as they held themselves
ready to be called out for military service whenever
the state of the border should require it.  In fact, a
sort of garrison-duty, under a system closely resembling that of the military colonies on the AustroTurkish 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 proximity 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. vTII      FEUDAL SERVICES.             303
by granting away portions of their public domain;
but it perhaps explains the tendency which immediately showed itself in the Benefices to become hereditary, for an Emphyteusis, though capable of being
moulded to the terms of the original contract, nevertheless descended as a general rule to the heirs of the
grantee. It is true that the holder of a benefice, and
more recently the lord of one of those fiefs into which
the benefices were transformed, appears to have owed
certain services which were not likely to have been
rendered by the military colonist, and were certainly
not rendered by the Emphyteuta.     The duty of
respect and gratitude to the feudal superior, the
obligation to assist in endowing his daughter and
equipping his son, the liability to his guardianship
in minority, and many other similar incidents of
tenure, must have been literally borrowed from the
relations of Patron and Freedman under Roman law,
that is, of quondam-master and quondam-slave. But
then it is known that the 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 debasement. The person who ministered to the Sovereign
in his Court had given up something of that absolute
personal freedom which was the proudest privilege of
the allodial proprietor.




304           SPHERE OF CONTRACT.       CIIP. 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 generations by the largeness of the sphere which is
occupied in. it by Contract. Some of the phenomena
on which this proposition rests are among those
most frequently singled out for notice, for comment,
and for eulogy. Not 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




CHAP. IX.  CONTRACT AND POLITICAL ECONOMY.   305
itself to modern morality be not a relation determined 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      CURRENT OPINIONS AS TO CONTRACT. crHA. Ix.
under it an ever-changing assemblage of contractual
rules with which it rarely interferes except to compel compliance with a few fundamental principles,
or unless it be called in to punish the violation of
good faith.
Social inquiries, so far as they depend on the consideration of legal phenomena, are in so 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 society. These commonplaces answer much more to
our prejudices than to our convictions. The strong
disinclination of most men to regard morality 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




CHAP. iX.  THEFT AND BREACH OF TRUST.        307
is the confidence reposed and deserved by the many
which affords facilities for the bad faith of the few,
so that, if colossal examples of dishonesty occur,
there is no surer conclusion than that scrupulous
honesty is displayed in the average of the transactions which, in the particular case, have supplied
the delinquent with his opportunity. If we insist
on reading the history of morality as reflected in
jurisprudence, by turning our eyes not on the law
of Contract but on the law of Crime, we must be
careful that we read it aright. The only form of
dishonesty treated of in the most ancient Roman
law is Theft. At the moment at which I write,
the newest chapter in the English criminal law is
one which attempts to prescribe punishment for
the frauds of Trustees. The proper inference from
this contrast is not that the primitive Pomans
practised a higher morality than ourselves.  We
should rather say that, in the interval between their
days and ours, morality has advanced from a very
rude to a highly refined conception-from viewing
the rights of property as exclusively sacred, to
looking upon the rights growing out of the mere
unilateral reposal of confidence as entitled to the
protection of the penal law.
The definite theories of jurists are scarcely nearer
the truth in this point than the opinions of the
multitude. To begin with the views of the Roman
x2




308           THEORIES OF CONTRACT.     CHrAP. IX.
lawyers, we find them inconsistent with the true
history of moral and legal progress.  One class
of contracts, in which the plighted faith of the contracting parties was the only material ingredient,
they specifically denominated Contracts juris gentium,
and though these contracts were undoubtedly the
latest born into the Roman system, the expression employed implies, if a definite meaning be extracted
from it, that they were more ancient than certain
other forms of engagement treated of in Roman law,
in which the neglect of a mere technical formality was
as fatal to the obligation as misunderstanding or
deceit. But then the antiquity to which they were referred was vague, shadowy, and only capable of being
understood through the Present; nor was it until
the language of the Roman lawyers became the
language of an age which had lost the key to their
mode of thought that a " Contract of the Law of
Nations" came to be distinctly looked upon as a
Contract known to man in a state of Nature.
Rousseau adopted both the juridical and the popular
error. In the Dissertation on the effects of Art and
Science upon Morals, the first of his works which attracted attention and the one in which he states most
unreservedly the opinions which made him the founder
of a sect, the veracity and good faith attributed to the
ancient Persians are repeatedly pointed out as traits
of primitive innocence which have been gradually




CHAP. 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 Social Contract or Compact is the most systematic
form which has ever been assumed by the error
we are discussing. It is a theory which, though
nursed into importance by political passions, derived all its sap from the speculations of lawyers.
True it certainly is that the famous Englishmen, for
whom it had first had attraction, valued it chiefly
for its political serviceableness, but, as I shall presently attempt to explain, they would never have
arrived at it, if politicians had not long conducted
their controversies in legal phraseology. Nor were
the English authors of the theory blind 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 all political phenomena. They had observed
the fact, already striking in their day, that of the
positive rules obeyed by men, the greater part were
created by Contract, the lesser by Imperative Law.
But they were ignorant or 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




310       ANALYSIS OF SOCIAL PHENOMENA.   CHAP. Ix.
eluding the doctrines which claimed a divine parentage for Ilmperative Law, that they devised the theory
that all Law had its origin in Contract. In another
~stage of thought, they would have been satisfied to
leave their theory in the condition of an ingenious
hypothesis or a convenient verbal formula. But that
age was under the dominion of legal superstitions.
The State of Nature had been talked about till it
had ceased to be regarded as paradoxical, and hence
it seemed easy to give a fallacious reality and definiteness to the contractual origin of Law by insisting
on the Social Compact as a historical fact.
Our own generation has got rid of these erroneous
juridical theories, partly by outgrowing the intellectual state to which they belong, and partly by
almost ceasing to theorise on such subjects altogether.
The favourite occupation of active minds at the
present moment, and the one which answers to the
speculations of our 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 comprehending states of society which differ considerably
from that to which he is accustomed. The mistake of
judging the men of other periods by the morality of
our own day has its parallel in the mistake of sup



CHAP. IX.    MONTESQUIEU'S APOLOGUE.         311
posing that every wheel and bolt in the modern social
machine had its counterpart in more rudimentary
societies.  Such impressions ramify very widely, and
masque themselves very subtly, in historical works
written in the modern fashion; but I find the trace
of their presence in the domain of jurisprudence in
the praise which is frequently bestowed on the little
apologue of Montesquieu concerning the Troglodytes,
inserted in the Lettres Persanes. The Troglodytes
were a people who systematically violated their Contracts, and so perished utterly. If the story bears
the moral which its author intended, and is employed to expose an anti-social heresy by which this
century and the last have been threatened, it is most
unexceptionable; but if the inference be obtained
from it that society could not possibly hold together
without attaching a sacredness to promises and agreements which should be on something like a par with
the respect that is paid to them by a mature civilisation, 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
others has to be apprehended in the constitution of
primitive societies is that the individual creates for
himself few or no rights, and few or no duties. The
rules which he obeys are derived first from the




312         EARLY NOTIONS OF CONTRACT.    CHAP. IX.
station into which he is born, and next from the imperative commands addressed to him by the chief of
the household of which he forms part. Such a system leaves the very smallest room for Contract. The
members of the same family (for so we may interpret
the evidence) are wholly incapable of contracting
with each other, and the family is entitled to disregard the engagements by which any one of its subordinate members has attempted to bind it. Family, it
is true, may contract with family, chieftain with
chieftain, but the transaction is one of the same nature, and encumbered by as many 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 ad vancing civilisation.
Neither Ancient Law nor any other source of evidence 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 developed, and that acts of flagrant perfidy are often
mentioned without blame and sometimes described
with approbation.  In the Homeric literature, for instance, the deceitful cunning of Ulysses appears as a




CHAP. IX.       ANCIENT CONTRACTS.           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 interposition of law to compel the performance of a promise.
That which the law arms with its sanctions is not a
promise, but a promise accompaiied 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 the
conditions of mind under which a particular verbal
assent is given appears, in ancient law, to be transferred to the words and gestures of the accompanying
performance. No pledge is enforced if a single form
be omitted or misplaced, but, on the other hand, if
the forms can be shown to have been accurately proceeded with, it is of no avail to plead that the promise
was made under duress or deception.  The transmutation of this ancient view into the familiar notion of
a Contract is plainly seen in the history of jurisprudence.  First one or two steps in the ceremonial
are dispensed with; then the others are simplified
or permitted to be neglected on certain conditions;
lastly, a few specific contracts are separated from the
rest and allowed to be entered into without form, the
selected contracts being those on which the activity




314          EARLY ROMAN CONTRACTS.      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 jurisconsult 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 jurisprudence to break away the external shell of form and
ceremony. Forms are thenceforward only retained
so far as they are guarantees of authenticity and
securities for caution and 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. 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 nexum, and the parties to the contract were said to be nexi, expressions which must
be carefully attended to on account of the singular
durableness of the metaphor on which they are
founded. The notion that persons under a contractual engagement are connected together by a strong
bond or chain, continued till the last to influence the
Roman jurisprudence of Contract; and'flowing thence
it has mixed itself with modern ideas. What then




CHAP. IX.          THE NEXUM.                315
was involved in this nexum or bond? A definition
which has descended to us from one of the Latin antiquarians describes nexum as omne quod geritur per 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. 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 Right, is sharply
distinguished by the analyst of mature jurisprudence
from the jus ad rem, right in personam, right "' availing against a single individual or group," or Obligation. Now Conveyances transfer Proprietary Rights,
Contracts 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




316  SPECIALISING PROCESS IN ANCIENT LAW.  CHAP. Ix.
in speculation ideas which are blended in practice.
We have indications not to be mistaken of a state of
social affairs in which Conveyances and Contracts
were practically confounded; nor did the discrepance
of the conceptions become perceptible till men had
begun to adopt a distinct practice in contracting and
conveying.
It may here be observed that we know enough of
ancient 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. An ancient legal conception corresponds not to one but to several modern conceptions.
An ancient technical expression serves to indicate
a variety of things which in modern law have
separate names allotted to them. If, however, we
take up the history of Jurisprudence at the next
stage, we find that the subordinate conceptions have
gradually disengaged themselves, and that the old
general names are giving way to special appellations.
The old general conception is not obliterated, but it
has ceased to cover more than one or a few of
the notions which it first included.  So too the old
technical name remains, but it discharges only one of




CHAP. IX.  SPECIALISING PROCESS IN ANCIENT LAW.  317
the functions which it once performed. We may
exemplify this phenomenon in various ways. Patriarchal Power of all sorts appears, for instance, to
have been once conceived as identical in character,
and it was doubtless distinguished by one name. The
Power exercised by the ancestor was the same
whether it was exercised over the family or the material 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 specialised. 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 mancipium —over a wife, it is still manus.  The
old word, it will be perceived, has not altogether
fallen into desuetude, but is confined to one very
special exercise of the authority it had formerly
denoted.  This example will enable us to comprehend the nature of the historical alliance between
Contracts and Conveyances. There seems to have




318                THE NEXUM.           CHAP. Ix.
been one solemn ceremonial at first for all solemn
transactions, and its name at Rome appears to have
been nexum. Precisely the same forms which were
in use when a conveyance of property was effected
seem to have been employed in the making of a contract. But we have not very far to move onwards
before we come to a period at which the notion of a
Contract has disengaged itself from the notion of a
Conveyance. A double change has thus taken place.
The transaction "' with the copper and the balance,'
when intended to have for its office the transfer of
property, is known by the new and special name of
Mancipation.  The ancient Nexum still designates
the same ceremony, but only when it is employed for
the special purpose of solemnising a contract.
When two or three legal conceptions are spoken of
as anciently blended in one, it is not intended to
imply that some one of the included notions may
not be older than the others, or, when those others
have been formed, may not greatly predominate
over and take precedence of them. The reason why
one legal conception continues so long to cover
several conceptions, and one technical phrase to do
instead of several, is doubtless that 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. ix.    CHANGES IN THE NEXUM,           319
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 change long prevented
its being appreciated or noticed. The old name remained because men had not become conscious that
they wanted a new one; the old notion clung to the
mind because nobody had seen reason to be at the
pains of examining it. We have had the process
clearly exemplified in the history of Testaments. A
Will was at first a simple conveyance of Property. It
was only the enormous practical difference that gradually showed itself between this particular conveyance and all others which caused it to be regarded
separately, and even as it was, centuries elapsed
before the ameliorators of law cleared away the useless encumbrance of the nominal mancipation, and
consented to care for nothing in the Will but the
expressed intentions of the Testator. It is unfortunate that we cannot track the early history of Contracts with the same absolute confidence as the early
history of Wills, but we are not quite without
hints that contracts first showed themselves through




820          CHANGES IN THE NEXUM.       CHAP. IX.
the nexum being put to a new      use and afterwards 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 indispensable assistant, the libripens, presented himself
with a pair of scales. The slave with certain fixed
formalities was handed over to the vendee-the
copper was weighed by the libripens and passed to
the vendor. So long as the business lasted it was a
nexum, and the parties were 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 that
case, the nexum is finished, so far as the seller is
concerned, and when he has once handed over his
property, he is no longer nexus; but, in regard to the
purchaser, the nexum continues. The transaction, as
to his part of it, is incomplete, and he is still considered to be nexus. It follows, therefore, that the
same term described the conveyance by which the




CHAP. IX.  CONVEYANCES AND CONTRACTS.        321
right of property was transmitted, and the personal
obligation of the debtor for the unpaid purchasemoney. We may still 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 commercial activity, an executory Contract of Sale.
If it be true that, both in the popular and in the
professional view, a Contract was long regarded as an
incomplete Conveyance, the truth has importance for
many reasons. The speculations of the last century
concerning mankind in a state of nature, are not unfairly summed up in the doctrine that " in the primitive society property was nothing, and obligation
everything;" and it will now be seen that, if the proposition were reversed, it would be nearer the 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 understand that the nexum was artificially prolonged to
give time to the debtor, we can better comprehend
his position in the eye of the public and of the law.
His indebtedness was doubtless regarded as an anomaly, and suspense of payment in general as an artifice
Y




322        CONVEYANCES AND CONTRACTS.      CHAP. lx.
and a distortion of strict rule. The person who had
duly consummated his part in the transaction must,
on the contrary, have stood in peculiar favour; and
nothing would seem more natural than to arm him
with stringent 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 Mancipatio, had to be used for the purpose of designating
the true nexum or transaction in which the property
was really transferred.  Contracts are therefore now
severed from Conveyances, and the first stage in their
history is accomplished, but still they are far enough
from that epoch of their development when the promise of the contractor has a higher sacredness than
the formalities with which it is coupled.  In attempting to indicate the character of the changes passed
through in this interval, it is necessary to trespass
a little on a subject which lies properly beyond the
range of these pages, the analysis of Agreement
effected by the Roman jurisconsults. Of this analysis, the most beautiful monument of their sagacity,
I need not say more than that it is based on the
theoretical separation of the Obligation from the




CHAP. IX.  ROMAN ANALYSIS OF AGREEMENT.     323
Convention or Pact. Benthan 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. A Pact was the utmost
product of the engagements of individuals areeing
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. A Contract was a Pact (or Convention) phus an Obligation. So long as the Pact
remained unclothed with the Obligation, it was called
nude or naked.
What was an Obligation? It is defined by the
Roman lawyers as " Juris vinculum, quo necessitate
adstringimur alicujus solvendae rei." This definition
connects the Obligation with the Nexum through the
common metaphor on which they are founded, and
shows us with much clearness the pedigree of a peculiar conception. The Obligation is the " bond" or
" chain," with which the law joins together persons or groups of persons, in consequence of certain
Y 2




324                OBLIGATION.           CHAP. ix.
voluntary acts. The acts which have the effect 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 support.  The image of a vinculum juris colours and
pervades every part of the Roman law of Contract
and Delict. The law bound the parties together, and
the chain could only be undone by the process called
solutio, an expression still figurative, to which our
word " payment " is only occasionally and incidentally
equivalent. The consistency with which the figurative image was allowed to present itself, explains an
otherwise puzzling peculiarity of Roman legal phraseology, the fact that " Obligation " signifies rights as
well as duties, the right, for example, to have a debt
paid as well as the duty of paying it. The Romans
kept, in fact, the entire picture of the "legal chain "
before their eyes, and regarded one end of it no more
and no less than the other.




CHAP. ix.    CONVENTION AND CONTRACT.         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 contractlaw was surely tending.  But for the purpose of this
inquiry, we must attend particularly to the intermediate stage-that in which something more than a
perfect agreement was required to attract t ttrthe obligation. This epoch is synchronous with the period at
which the famous Roman classification of Contracts
into four sorts-the Verbal, the Literal, the Real,
and the Consensual-had come into use, and during
which these four orders of contract constituted the
only descriptions of engagement which the law would
enforce. The meaning of the fourfold distribution
is readily understood as soon as we apprehend the
theory which severed the Obligation from the Convention. Each class of contracts was in fact named
from certain formalities which were required over and
above the mere agreement of the 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 Contract, an entry in a ledger or table-book
had the effect of clothing the Convention with the
Obligation, and the same result followed, in the case
of the Real Contract, from the delivery of the Res
or Thing which was the subject of the preliminary




826             ROMAN CONTRACTS.        CITAP. 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 immediately complete, taking its name from the particular
form which it had suited them to adopt. The exceptions to this practice will be noticed presently.
I have enumerated the four Contracts in their
historical order, which order, however, the Roman
Institutional writers did not invariably follow. There
can be no doubt that the Verbal Contract was the
most ancient of the four, and that it is the eldest
known descendant of the primitive Nexum. Several
species of Verbal Contract were anciently in use, but
the most important of all, and the only one treated of
by our authorities, was effected by means of a stipulation, that is, a Question and Answer; a question
addressed by the person who exacted the promise, and
an answer given by the person who made it. This
question and answer constituted the additional ingredient which, as I have just explained, was 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 jurisprudence first of all the conception of a chain uniting




CHAP. Ix.     THE VERBAL CONTRACT.           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 understand how the formal conveyance was first separated
from the part of the proceeding which had immediate
reference to the business in hand, and how afterwards
it was omitted altogether. As then the question and
answer of the Stipulation were unquestionably the
Nexum in a simplified shape, we are prepared to find
that they long partook of the nature of a technical
form. It would be a mistake to consider them as
exclusively recommending themselves to the older
Roman lawyers through their usefulness in furnishing
persons meditating an agreement with an opportunity
for consideration and reflection. It is not to be disputed 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 sufficient to constitute a Stipulation, but only a question




328      CONVENIENCE OF VERBAL CONTRACT.  CHAP. Ix.
and answer couched in technical phraseology specially
appropriated to the particular occasion.
But although it is essential for the proper appreciation of the history of contract-law that the Stipulation
should be understood to have been looked upon as a
solemn form before it was recognised as a useful
security, it would be wrong on the other hand to
shut our eyes to its real usefulness. The Verbal
Contract, though it had lost much of its ancient importance, survived to the latest period of Roman
jurisprudence; and we may take it for granted that
no institution of Roman law had so extended a
longevity unless it served some practical advantage.
I observe in an English writer some expressions of surprise that the Romans even of the 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 all
the terms of the contract into the form of a question,
and the answer was given by the promisor. " Do you
promise that you will deliver me such and such a
slave, at such and such a place, on such and such a




caAP, Ix.  CONVENIENCE OF VERBAL CONTRACT.   329
day?"   " I do promise."  Now, if we reflect for a
moment, we shall see that this obligation to put the
promise interrogatively inverts the natural position
of the parties, and, by effectually breaking the tenor
of the conversation, prevents the attention from
gliding over a dangerous pledge. With us, a verbal
promise is, generally speaking, to be gathered exclusively from the words of the promisor. In old 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 interrogation; and it was of this interrogation, of course,
and of the assent to it, that proof had to be given at
the trial-not of the promise, which was not in itself
binding. How great a difference this seemingly insignificant peculiarity may make in the phraseology
of contract-law is speedily realised by the beginner in
Roman jurisprudence, one of whose first stumblingblocks is almost universally created by it. When we
in English 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 always regards
the contract, if we may so speak, from the point of
view of the promisee; in speaking of a party to a
contract, it is always the Stipulator, the person who




830           THE LITERAL CONTRACT.       CHAP. IX.
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, Pseudolus, Act I. sc. 1; Act IV.
sc. 6; Trinummus, Act V. 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.
In the Literal or Written Contract, the formal act
by which an Obligation was superinduced on the Convention, was an entry of the sum due, where it could
be specifically ascertained, on the debit side of a
ledger. The explanation of this contract turns on a
point of Roman domestic manners, the systematic
character and exceeding regularity of book-keeping
in ancient times.  There are several minor difficulties
of old Roman law, as, for example, the nature of the
Slave's Peculium, which are only cleared up when we
recollect that a Roman household consisted of a number of persons strictly accountable to its head, and
that every single item of domestic receipt and expenditure, after being entered in waste books, was transferred at stated periods to a general household ledger.
There are some obscurities, however, in the descriptions we have received of the Literal Contract, the




CHAP. IX.      TIHE REAL CONTRACT.           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 engagement entirely different from that originally understood. We are not, therefore, in a position to say,
with respect to the primitive Literal Contract, whether
the obligation was created by a simple entry on the
part of the creditor, or whether the consent of the
debtor or 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 weire 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 succession, the Real Contract, shows a great advance in
ethical conceptions. Whenever any agreement had
for its object the delivery of a specific thing-and this
is the case with the large majority of simple engagements-the Obligation was drawn down as soon as
the delivery had actually taken place. Such a result
must have involved a serious innovation on the oldest
ideas of Contract; for doubtless, in the primitive times,
when a contracting party had neglected to clothe his
agreement in a stipulation, nothing done in pursuance
of the agreement would be recognised by the law.
A person who had paid over money on loan would
be unable to sue for its repayment unless he had




332         THE CONSENSUAL CONTRACTS.     CHAP. IX.
formally stipulated for it.  But, in the Real Contract, performance on one side is allowed to impose
a legal duty on the other-evidently on     ethical
grounds. For the first time then moral considerations appear as an ingredient in Contract-law, and
the Real Contract differs from its two predecessors in
being founded on these, rather than on respect for
technical forms or on deference to Roman domestic
habits.
We now    reach the fourth class, or Consensual
Contracts, the most interesting and important of all.
Four specified Contracts were distinguished by this
name: Mandatum, i.e. Commission or Agency; Societas or Partnership; Emtio Venditio or Sale; and
Locatio Conductio or Letting and Hiring.  A  few
pages back, after stating that a Contract consisted of a
Pact or Convention to which an Obligation had been
superadded, I spoke of certain acts or 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 to create them out of the
Pact. Much that is indefensible, and much more that
is obscure, has been written about the Consensual
Contracts, and it has even been asserted that in them




CuxP. Ix.    TIIE CONSENSUAL CONTRACTS.        333
the consent of the Parties is more emphatically given
than in any other species of agreement. But the
term Consensual merely indicates that the Obligation
is here annexed at once to the Consensus.  The Consensus, or mutual assent of the parties, is the final and
crowning ingredient in the Convention, and it is the
special characteristic of agreements falling under one
of the four heads of Sale, Partnership, Agency, and
Hiring, that, as soon as the assent of the parties has
supplied this ingredient, there is at once a Contract.
The Consensus draws with it the Obligation, performing, in transactions of the sort specified, the
exact functions which are discharged, in the other
contracts, by the Res or Thing, by the Verba stipulationis, and by 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
Real, 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 collective 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 relieve
these transactions from  technical incumbrance, to




334         THE CONSENSUAL CONTRACTS.   CHAP. IX.
abstain as much as possible from clogging the most
efficient springs of social movement.  Such motives
were not of course confined to Rome, and the commerce of the Romans with their neighbours must
have given them abundant opportunities for observing
that the contracts before us tended everywhere to
become Consensual, obligatory on the mere signification of mutual assent. Hence, following their usual
practice, they distinguished these contracts as contracts Juris Gentiun. 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 Prartor 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. Although, however,
there is strong probability that the Consensual Contracts were the latest born into the Roman system,
and though it is likely that the qualification, Juris
Gentium, stamps the recency of their origin, yet this
very expression, which attributes them to the " Law
of 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




CHar. Ix.   THE CONSENSUAL CONTRACTS.        335
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.
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 will
which constitutes agreement was now completely
insulated, and became the subject of separate contemplation; 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 full intellectual maturity had deliberately
bound himself by an engagement, he was said to
be under a natural obligation, even though he had
omitted some necessary formality, and even though




336      NATURAL AND CIVIL OBLIGATIONS.  CHAP. IX.
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 obligations differed in many respects from  obligations
which were merely null and void, more particularly
in the circumstance that they could be civilly confirmed, 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, nevertheless a claim arising out of a valid contract could
be rebutted by proving a counter-agreement which
had never got beyond the state of a simple convention. An action for the recovery of a debt could be
met by showing a mere informal agreement to waive
or postpone the payment.
The doctrine just stated indicates the hesitation of
the Praetors in making their advances towards the
greatest of their innovations. Their theory of Natural




CHAP. ix.   CHANGES IN CONTRACT-LAW.        337
law must have led them to look with especial favour on
the Consensual Contracts and on those Pacts or Conventions of which the Consensual Contracts were only
particular 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
been confided to them since the first beginnings of
Roman law, and, while they still declined to permit a
suit to be launched which was not based on a formal
contract, they gave full play to their new theory of
agreement in directing the ulterior stages of the proceeding. But, when they had proceeded thus far, it
was inevitable that they should proceed farther.
The revolution of the ancient law of Contract was
consummated when the Prsator of some one year announced in his Edict that he would grant equitable
actions upon Pacts which had never been matured at
all into Contracts, provided only that the Pacts in
question had been founded on a consideration (causa).
Pacts of this sort are always enforced under the
advanced Roman jurisprudence.   The principle is
merely the principle of the Consensual Contract carried to its proper consequence; and, in fact, if the
technical language of the Romans had been as plastic
as their legal theories, these Pacts enforced by the
Praetor would have been styled new Contracts, new
Consensual Contracts. Legal phraseology is, howz




338         PROGRESS OF CONTRACT-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 will be remarked that unless there were consideration for the
Pact, it would continue nude so far as the new jurisprudence was concerned; in order to give it effect,
it would be necessary to convert it by a stipulation
into a Verbal Contract.
The extreme importance of this history of Contract, 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 landmark of jurisprudence to another. We begin with
the Nexum, in which a Contract and a Conveyance
are blended, and in which the formalities which accompany the agreement are even more important
than the agreement itself. From the Nexum we pass
to the Stipulation, which is a simplified form of the
older ceremonial. The Literal Contract comes next,
and here all formalities are waived, if proof of the
agreement can be supplied from the rigid observances
of a Roman household.    In the Real Contract a
moral duty is for the first time recognised, and
persons who have joined or acquiesced in the partial
performance of an engagement are forbidden to
repudiate it on account of defects in form. Lastly,
the Consensual Contracts emerge, in which the




CHAP. ix.   PROGRESS OF CONTRACT-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. 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 with no contrasts or parallels from which instruction can be
gleaned. From the absence, however, of everything
violent, marvellous, or unintelligible in the changes I
have described, it may be reasonably believed that
the history of Ancient Roman Contracts is, up to a
certain point, typical of the history of this class of
legal conceptions in other ancient societies.  But it
is only up to a certain point that the progress of
Roman law can be taken to represent the progress of
other systems of jurisprudence.  The theory of'Natural law is exclusively Roman.  The notion of the
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 products of one particular society. These later legal
z 2




340    INFLUENCE OF ROMAN CONTRACT-LAW  CHAP. IX.
conceptions are important, not because they typify
the necessary results of advancing thought under all
conditions, but because they have exercised perfectly
enormous influence on the intellectual diathesis of the
modern world.
I know nothing more wonderful than the variety
of sciences to which Roman law, Roman Contractlaw more particularly, has contributed modes of
thought, courses of reasoning, and a technical language. Of the subjects which have whetted the
intellectual appetite of the moderns, there is scarcely
one, except Physics, which has not been filtered
through Roman jurisprudence. The science of pure
Metaphysics had, indeed, rather a Greek than a Roman
parentage, but Politics, Moral Philosophy, and even
Theology, found in Roman law not only a vehicle of
expression, but a nidus in which some of their profoundest inquiries 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 interests of the Eastern and Western worlds were separated, the founders of Western thought belonged to




CHAP. ix.  STATE OF THOUGHT IN THE EMPIRE.  341
a society which spoke Latin and reflected in Latin.
But in the Western provinces the only language which
retained sufficient precision for philosophical purposes
was the language of Roman law, which by a singular
fortune had preserved nearly all the purity of the
Augustan age, while vernacular Latin was degenerating into a dialect of portentous barbarism. And
if Roman jurisprudence supplied the only means of
exactness in speech, still more emphatically did it
furnish the only means of exactness, subtlety, or
depth in thought. For at least three centuries
philosophy and science were without a home in.the
West; and though metaphysics and metaphysical
theology were engrossing the mental energies of
multitudes of Roman subjects, the phraseology employed in these ardent inquiries was exclusively Greek,
and their theatre was the Eastern half of the Empire.
Sometimes, indeed, the conclusions of the Eastern
disputants became so important that every man's
assent to them, or dissent from them, had to be recorded, and then the West was introduced to the
results of Eastern controversy, which it generally
acquiesced in without interest and without resistance.
Meanwhile, one 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        EASTERN AND WESTERN IDEAS.     CHAP. IX.
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 attention which has been given to the difference between
Western ideas and Eastern, between Western theology
and Eastern, caused by the presence of a new ingredient. It is precisely because the influence of jurisprudence begins to be powerful that the foundation
of Constantinople and the subsequent separation of
the Western empire from the Eastern are epochs in
philosophical history. But 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 intellectual result of the Roman civilisation. 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. IX.        QUASI-CONTRACT.             343
subject, a better judge than a Frenchman or a German of the value of the assertions I have ventured to
make. Anybody who knows what Roman jurisprudence is, as actually practised by the Romans, and
who will observe in what characteristics the 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 extensive influence on foreign subjects of inquiry has been
the law of Obligation, or, what comes nearly to the
same thing, of Contract and Delict. The Romans
themselves were not unaware of the offices which the
copious and malleable terminology belonging to this
part of their system might be made to discharge, and
this is proved by their employment of the peculiar
adjunct quasi in such expressions as Quasi-Contract
and Quasi-Delict.  "Quasi," so used, is exclusively
a terml 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 circumstances are the symbols of the same ingredients
which are symbolised, in express contracts, by
words; and whether a man employs one set of symbols or the other must be a matter of indifference




344              QUASI-CONTRACT.          CHAP. ix.
so far as concerns the theory of agreement. But
a Quasi-Contract is not a contract at all. The
commonest sample of the class is the relation subsisting between two persons, one of whom has paid
money to the other through mistake.     The law,
consulting the interests of morality, imposes an obligation on the receiver to refund, but the very nature
of the transaction indicates that it is not a contract,
inasmuch as the Convention, the most essential ingredient of Contract, is wanting. This word " quasi,"
prefixed to a term of Roman law, implies that the
conception to which it serves as an index is connected with the conception with which the comparison is instituted by a strong superficial analogy
or resemblance. It does not denote that- the two
conceptions are the same, or that they belong to the
same genus.    On the contrary, it negatives the
notion of an identity between them; but it points
out that they are sufficiently similar for one to be
classed as the sequel to the other, and that the
phraseology taken from one department of law may
be transferred to the other, and employed without
violent straining in the statement of rules which
would otherwise be imperfectly expressed.
It has been shrewdly remarked, that the confusion between Implied Contracts, which are true
contracts, and Quasi-Contracts, which are not contracts at all, has much in common with the famous




CHAP. ix.      THE SOCIAL COMPACT.           345
error which attributed political rights and duties to
an Original Compact between the governed and the
governor.  Long before this theory had clothed
itself in definite shape, the phraseology of Roman
contract-law had been largely drawn upon to describe that reciprocity of rights and duties which
men had always 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 were really derived from
indelible recollections of the Camsarian despotismthe consciousness of correlative rights possessed by
the governed would have been entirely without the
means of expression if the Roman law of Obligation
had not supplied a language capable of shadowing
forth an idea which was as yet imperfectly developed. The antagonism between the privileges of
kings and their duties to their subjects was never,
I believe, lost sight of since Western history began,
but it had interest for few except speculative writers
so long as feudalism continued in vigour, for feudalism effectually controlled by express customs the
exorbitant theoretical pretensions of most European
sovereigns. It is notorious, however, that as soon as
the decay of the Feudal System had thrown the medieval constitutions out of working order, and when




346          POLITICS AND ROMAN LAW.     CHAPT. IX.
the Reformation had discredited the authority of the
Pope, the doctrine of the divine right of Kings rose
immediately into an importance which had never
before attended it. The vogue which it obtained entailed still more constant resort to the phraseology of
Roman law, and a controversy which 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 afterwards, and more particularly, in French hands, expanded 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 obligation of' quasi-contract."  It had furnished a body of
words and phrases which approximated with sufficient




CHAP. IX.    ETHICS AND ROMAN LAW.           347
accuracy to the ideas which then were from time to
time forming on the subject of political obligation.
The doctrine of an Original Compact can never be
put higher than it is placed by Dr. Whewell, when
he suggests that, though unsound, "it may be a
convenient form for the expression of moral truths."
The extensive employment of legal language on
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 plentifulness in Moral Philosophy a rather different explanation must be given, inasmuch as ethical writings have
laid Roman law    under contribution much more
directly than political speculations, and their authors
have been much more conscious of the extent of their
obligation.  In speaking of moral philosophy as
extraordinarily indebted to Roman jurisprudence, I
must be understood to intend moral philosophy as
understood previously to the break in its history
effected by Kant, that is, as the science of the rules
governing human conduct, of their proper interpretation, and of the limitations to which they are
subject.  Since the rise of the Critical Philosophy,
moral science has almost wholly lost its older meaning, and, except where it is preserved under a debased




348          ETHICS AND ROMAN LAW.       CHAP. Ix.
form in the casuistry still cultivated by Roman
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 understands 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 incorporated with theology. The science of Moral Theology, as it was at first called, and as it is still
designated by the Roman Catholic divines, was undoubtedly constructed, to the full knowledge of its
authors, by taking principles of conduct from the
system of the Church, and by using the language and
methods of jurisprudence for their expression and
expansion. While this process went on, it was inevitable that jurisprudence, though merely intended
to be the vehicle of thought, should communicate its
colour to the thought itself. The 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




CMAP. 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 exclusively 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 Disputations 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 juridical ingredient in ethical science would have been
insignificant, but the use made of their conclusions
by the next generation of Roman Catholic writers on
these subjects almost entirely destroyed their influence.
Moral Theology, degraded into Casuistry, lost all interest for the leaders of European speculation; and the
new science of Moral Philosophy, which was entirely
in the hands of the Protestants, swerved greatly aside
from the path which the moral theologians had followed. The effect was vastly to increase the influence
of Roman law on ethical inquiry.




350             MORAL PHILOSOPHY.           CEAP. Ix.
" Shortly* after the Reformation, we find two great
schools of thought dividing this class of subjects
between them.   The most influential of the two was
at first the sect or school known to us as the Casuists,
all of them in spiritual communion with 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 Pacis, 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 parent 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.    GROTIUS AND HIS SCHOOL.        351
ception of a Law Natural be not exclusively a creation of the Roman jurisconsults, we may lay down
that, even on the admission of Grotius himself, the
dicta of the Roman jurisprudence as to what parts of
known positive law must be taken to be parts of the
Law of Nature, are, if not infallible, to be received
at all events with the profoundest respect. Hence
the system of Grotius is 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 phraseology, and of modes of reasoning, defining, and illustrating, 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 morality contended for have nothing whatever in common with the undertaking of Grotius.
All that philosophy of right and wrong which has
become famous, or infamous, under the name of
Casuistry, had its origin in the distinction between
Mortal and Venial sin. A natural anxiety to escape
the awful consequences of determining a particular act
to be mortally sinful, and a desire, equally intelligible,
to assist the Roman Catholic Church in its conflict
wth Protestantism by disburthening it of an incon



352                  CASUISTRY.             CHAP. IX.
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 offences, and to stamp them as
venial sins.  The fate of this experiment is matter of
ordinary history.  We know that the distinctions of
Casuistry, by enabling the priesthood to adjust spiritual control to all the varieties of human character,
did really confer on it an influence with princes,
statesmen, and generals, unheard of in the ages'
before the Reformation, and did really contribute
largely to that great reaction which checked and
narrowed the first successes of Protestantism.  But
beginning in the attempt, not to establish, but to
evade-not to discover a principle, but to escape a
postulate-not to settle the nature of right and
wrong, but to determine what was not wrong of a
particular nature,-Casuistry went on with its dexterous refinements till it ended in so attenuating
the moral features of actions, and so belying the
moral instincts of our being, that at length the conscience of mankind 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. IX.    ETHICS AND ROMAN 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 followed Grotius; and it still exhibits in an extraordinary degree the traces of that entanglement with
Roman law which is sometimes imputed as a fault,
and sometimes the highest of its recommendations, to
the Grotian theory. Many 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 metaphysical 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 ROMAN LAW.    CHAP. 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 analogous expressions
in any part of Latin literature, but to construct anew
from Latin roots a set of phrases equal to the expression of Greek philosophical ideas.  Over such a
process the terminology of Roman law   can have
exercised little influence; at most, a few Latin law
terms in a transmuted shape have made their way
into metaphysical language. At the same time it is
worthy of remark that whenever the problems of
metaphysics are those which have been most strongly
agitated in Western Europe, the thought, if not the
language, betrays a legal parentage. Few things in
the history of speculation are more impressive than
the fact that no Greek-speaking people has ever felt
itself seriously perplexed by the great question of
Free-will and Necessity. I do not pretend to offer
any summary explanation of this, but it does not
seem an irrelevant suggestion that neither the Greeks,
nor any society speaking and thinking in their language, ever showed the smallest capacity for producing a philosophy of law. Legal science is a Roman
creation, and the problem of Free-will arises when we
contemplate a metaphysical conception under a legal
aspect. How came it to be a question whether invariable sequence was identical with necessary con



CIIP. IX.   THEOLOGY AND ROMAN LAW.          355
nection?  I can only say that the tendency of Roman
law, which became stronger as it advanced, was to
look upon legal consequences as united to legal causes
by an inexorable necessity, a tendency most markedly
exemplified in the definition of Obligation which I
have repeatedly cited, " Juris vinculum quo necessitate adstringimur alicujus solvendac rei."
But the problem of Free-will was theological before
it became philosophical, and, if its terms have been
affected by jurisprudence, it will be because Jurisprudence has made itself felt in Theology.  The great
point of inquiry which is here suggested has never
been satisfactorily elucidated. What has to be determined, is whether jurisprudence has ever served
as the medium through which theological principles
have been viewed; whether, by supplying a peculiar
language, a peculiar mode of reasoning, and a peculiar
solution of many of the problems of 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 all sides that the earliest language of
the Christian Church was Greek, and that the problems to which it first addressed itself were those
for which Greek philosophy in its later forms had
prepared the way.   Greek metaphysical literature
A 2




t358        GREEK AND LATIN CHURCHIES.   CHAP. IX.
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 accordingly the Western or Latinspeaking provinces of the Empire adopted the conclusions of the East without disputing or reviewing
them.' Latin Christianity," says Dean Milman,
"accepted the creed which its narrow and barren
vocabulary could hardly express in adequate terms.
Yet, throughout, the adhesion of Rome and the West
was a passive acquiescence in the dogmatic system
which had been wrought out by the profounder theology of the Eastern divines, rather than a vigorous
and original examination on her part of those mysteries. The Latin Church was the scholar as well as
the loyal 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 still
more exquisite subtlety the Godhead and the nature
of Christ "-" while the interminable controversy still




crAP. IX.  PROBLEIMS OF WESTERN CHURCH.      357
lengthened out and cast forth sect after sect from the
enfeebled community "-the Western Church threw
itself with passionate ardour into a new order of disputes, the same which from those days to this have
never lost their interest for any family of mankind at
any time included in the Latin communion. The
nature of Sin and its transmission by inheritancethe debt owed by man and its vicarious satisfaction
-the necessity and sufficiency of the Atonementabove 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 theological systems is accounted for by the fact that, in
passing from the East to the West, theological speculation had passed from a climate of Greek metaphysics
to a climate of Roman law;   For sone centuries




358          ROMAN 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 exclusively.  They had been occupied in applying a peculiar 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 questions 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 obligations established by Contract or Delict, the Roman
view of Debts and of the modes of incurring, extinguishing, and transmitting them, the Roman notion of
the continuance of individual existence by Universal
Succession, may be trusted to say whence arose the
frame of mind to which the problems of Western
theology proved so congenial, whence came the phraseology in which these problems were stated, and




CHAP. Ix.   THEOLOGY AND ROMAN LAW.         859
whence the description of reasoning employed in their
solution. It must only be recollected that the Roman
law which had worked itself into Western thought
was neither the archaic system of the ancient city,
nor the pruned and curtailed jurisprudence of the
Byzantine Emperors; still less, of course, was it the
mass of rules, nearly buried in a parasitical overgrowth of modern speculative doctrine, which passes
by the name of 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 affairs will permit to the limits within
which human law seeks to confine them.
It is a singular result of that ignorance of Roman
law which Englishmen readily confess, and of which
they are sometimes not ashamed to boast, that many
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 advancing the proposition, that from the close of the
Augustan era to the general awakening of interest on
the points of the Christian faith, the mental energies




360  GREEK AND LATIN-SPEAKING PROVINCES.  crAr. Ix.
of the civilised world were smitten with a paralysis. Now there are two subjects of thought-the
only two perhaps with the exception of physical
science-which are able to give employment to all
the powers and capacities which the mind possesses.
One of them is Metaphysical inquiry, which knows no
limits so long as the mind is satisfied to work on
itself; the other is Law, which is as extensive as the
concerns of mankind. It happens that, during the
very period indicated, the Greek-speaking provinces
were devoted to one, the Latin-speaking provinces to
the other, of these studies. I say nothing of the fruits
of speculation in Alexandria and the East, but I confidently affirm that Rome and the West had an occupation in hand fully capable of compensating them
for the absence of every other mental exercise, and I
add that the results achieved, so far as we know
them, were not unworthy of the continuous and exclusive labour bestowed on producing them. Nobody
except a professional lawyer is perhaps in a position
completely to understand how much of the intellectual
strength of individuals Law is capable of absorbing,
but a layman has no difficulty in comprehending why
it was that an unusual share of the collective intellect
of Rome was engrossed by jurisprudence. " The
proficiency" of a given community in jurisprudence
depends in the long run on the same conditions as its
* Cambridge Essays, 1856.




CHAP. 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 between the Twelve Tables and the severance of the two
Empires,-and that not irregularly or at intervals,
but in steadily increasing force and constantly augmenting number. We should reflect that the earliest
intellectual exercise to which a young nation devotes
itself is the study of its laws. As soon as the mind
makes its first conscious efforts towards generalisation, the concerns of every-day life are the first to
press for inclusion within general rules and comprehensive formulas. The popularity of the pursuit
on which all the energies of the young commonwealth are bent is at the outset unbounded; but
it ceases in time.  The monopoly of mind by law
is broken down.    The crowd at the morning audience of the great 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 jurisprudence is confined within the circle of a profession,
never indeed limited or insignificant, but attracted




362  CAUSES OF IMPROVEMENT IN ROMAN LAW. CHAP. ix.
as much by the rewards as by the intrinsic recommendations of their science.   This succession
of changes exhibited itself even more strikingly at
Rome than in England.   To the close of the Republic
the law was the sole field for all ability except the
special talent of a capacity for generalship. But a
new stage of intellectual progress began with the
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 intellect was forcibly thrust back into its old courses, and
law again became no less exclusively the proper
sphere for talent than it had been in the days when
the Romans despised philosophy and poetry as the
toys of a childish race. Of what nature were the external inducements which, during the Imperial period,
tended to draw a man of inherent capacity to the
pursuits of the jurisconsult may best be understood




cHAPl. Ix  RO.MAN 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 approach to wealth, to fame, to office, to the councilchamber of the monarch-it may be to the very
throne itself."
The premium on the study of jurisprudence was so
enormous that there were schools of law in every part
of the Empire, even in the very domain of Metaphysics. But, though the transfer of the seat of empire
to Byzantium gave a perceptible impetus to its cultivation in the East, jurisprudence never dethroned
the pursuits which there competed with it. Its language was Latin, an exotic dialect in the 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 decided than ever. As soon then as they ceased to sit




364      ROMAN LAW IN WESTERN THEOLOGY. CHAP. IX.
at the feet of the Greeks and began to ponder out a
theology of their own, the theology proved to be permeated with forensic ideas and couched in a forensic
phraseology. It is certain that this substratum of
law in Western theology lies exceedingly deep.  A
new set of Greek theories, the Aristotelian philosophy,
made their way afterwards into the West, and almost
entirely buried its indigenous doctrines. But when
at the Reformation it partially shook itself free from
their influence, it instantly supplied their place with
Law. It is difficult to say whether the religious system of Calvin or the religious system of the Arminians has the more markedly legal character.
The vast influence of this specific jurisprudence of
Contract produced by the Romans upon the corresponding department of modern Law belongs rather
to the history of mature jurisprudence than to a
treatise like the present.  It did not make itself felt
till the school of Bologna founded the legal science
of modern 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 barbarian usage with Roman law; no other explanation
of it is tenable, or even intelligible.  The earliest
social forms of the feudal period differ in little from
the ordinary associations in which the men of primi



chAP. Ix.  CONTRACT-LAW AND FEUDALISM.      365
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 common with an Indian Village Community and much
in common with a Highland clan. But still it presents some phenomena which we never find in the associations which are spontaneously formed by beginners
in civilisation. True archaic communities are held
together not by express rules, but by sentiment, or,
we should perhaps say, by instinct; and new comers
into the 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 characteristics of a patriarchal chieftain, but his pre



366        CONTRACT-LAW AND FEUDALISM.    CHAP. IX.
rogative was limited by a variety of settled customs
traceable to the express conditions which had been
agreed upon when the infeudation took place. Hence
flow the chief differences which forbid us to class the
feudal societies with true archaic communities. They
were much more durable and much more various;
more durable, because express rules are less destructible than instinctive habits, and more various, because the contracts on which they were founded were
adjusted to the minutest circumstances and wishes of
the persons who surrendered or granted away their
lands.  This last consideration may serve to indicate
how greatly the vulgar opinions current among us
as to the origin of modern society stand in need of
revision.  It is often said that the irregular and
various contour of modern civilisation is due to the
exuberant and erratic genius of the Germanic races,
and it is often contrasted with the dull routine of
the 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 AngloSaxon ancestors, are the only bodies of archaic
secular law which have come down to us in such a
state that we can form an exact notion of their original dimensions. Although the extant 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 magnitude 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
civil part of the law has trifling dimensions as compared with the criminal. The traditions which speak
of the sanguinary penalties inflicted by the code of
Draco seem to indicate that it had the same characteristic. In the Twelve Tables 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




368        PENAL LAW IN ANCIENT CODES.    CHAP. x.
to the modes of redressing wrong, though not enormnous, appears to have been large. It may be laid
down, I think, that the more archaic the code, the
fuller and the minuter is its penal legislation.  The
phenomenon has often been observed, and has been
explained, no doubt to a great extent correctly, by
the violence habitual to the communities which for
the first time reduced their laws to writing.  The
legislator, it is said, proportioned the divisions of his
work to the frequency of a certain class of incidents
in barbarian life.  I imagine, however, that this
account is not quite complete. It should be recollected that the comparative barrenness of civil law
in archaic collections is consistent with those other
characteristics of ancient jurisprudence which have
been discussed in this treatise.  Nine-tenths of the
civil part of the law practised by civilised societies
are made up of the Law of Persons, of the Law of
Property and of Inheritance, and of the Law of
Contract.  But it is plain that all these provinces
of jurisprudence must shrink within narrower boundaries, the nearer we make our approaches to the
infancy of social brotherhood.  The Law of Persons,
which is nothing else than the Law of Status, will
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 his




CHAP. X.       CRIMES AND WRONGS.           369
Father, and the infant Ward none against the Agnates who are his Guardians. 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
civil law will always be caused by the absence of
Contract, which some archaic codes do not mention at
all, while others significantly attest the immaturity
of the moral notions on which Contract depends by
supplying its place with an elaborate jurisprudence
of Oaths. There are no corresponding reasons for
the poverty of penal law, and accordingly, even if
it be hazardous to pronounce that the childhood of
nations is always a period of ungoverned violence,
we shall still be able to understand why the modern
relation of criminal law to civil should be inverted in
ancient codes.
I have spoken of primitive jurisprudence as giving
to criminal law a priority unknown in a later age.
The expression has been used for convenience' sake,
but in fact the inspection of ancient codes shows that
the law which they exhibit in unusual quantities is
not true criminal law. All civilised systems agree
in drawing a distinction between offences against the
State or Community and offences against the Individual, and the two classes of injuries, thus kept
apart I may here, without pretending that the terms
B B




370            CRIMES AND WRONGS.          cuHP. x.
have always been employed consistently in jurisprudence, call Crimes and Wrongs, crimina and delicta.
Now 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 ordinary civil action, and recovers compensation in the
shape of money-damages if he succeeds.     If the
Commentaries of Gaius be opened at the place where
the writer treats of the penal jurisprudence founded
on the Twelve Tables, it will be seen that at the
head of the civil wrongs recognised by the Roman
law stood Furtum or Theft.  Offences which we are
accustomed to regard exclusively as crimes are exclusively treated as torts, and not theft only, but
assault and violent robbery, are associated by the
jurisconsult with trespass, libel, and slander. All
alike gave rise to an Obligation or vinculum juris,
and were all requited by a payment of money. This
peculiarity, however, is most strongly brought out
in the consolidated Laws of the Germanic tribes.
Without an exception, they describe an immense
system  of money compensations for homicide, and
with few exceptions, as large a scheme of compensation for minor injuries. " Under Anglo-Saxon law,"
writes Mr. Kemble (Anglo-Saxons, i. 177), "a sum
was placed on the life of every free man, according to
his rank, and a corresponding sum on every wound




CHAP. x.        WRONGS 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 circumnstances."  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 delict,
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 primitive jurisprudence. It must be added that Sins are
known to it also. Of the Teutonic codes it is almost
unnecessary to make this assertion, because those
codes, in the form in which we have received them,
were compiled or recast by Christian legislators. But
it is also true that non-Christian bodies of archaic
law entail penal consequences on certain classes of
*acts and on certain classes of omissions, as being
violations of divine prescriptions and commands.
The law  administered at Athens by the Senate of
BB 2




372            CONCEPTION OF CRIME.       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 conception 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 legislature. And this is the earliest conception of a
crimen or Crime-an act involving such high issues
that the State, instead of leaving its cognisance




CHAP. X.. ANCIENT CONCEPTION OF CRIME.       373
to the civil tribunal or the religious court, directed
a special law or privilegium against the perpetrator.
Every indictment therefore took the form of a bill
of pains and penalties, and the trial of a criminal
was a proceeding wholly extraordinary, wholly irregular, 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 classification of the acts prescribed or forbidden was possible, there was not at this epoch any Law of Crimes,
any criminal jurisprudence. The procedure was
identical with the forms of passing an ordinary
statute; it was set in motion by the same persons
and conducted with precisely the same solemnities.
And it is to be observed that, when a regular
criminal law with an apparatus of Courts and officers
for its administration had afterwards come into
being, the old procedure, as might be supposed
from its conformity with theory, still in strictness
remained practicable; and, much as resort to such
an expedient was discredited, the people of Rome
always retained the power of punishing by a special
law  offences against its majesty.  The  classical
scholar does not require to be reminded that in
exactly the same manner the Athenian      Bill of
Pains and Penalties, or elccayycXEa, survived the
establishment of regular tribunals. It is known too




374             ANCIENT PROCEDURE.          CHAP. X.
that when the freemen of the Teutonic races assembled for legislation, they also claimed authority to
punish offences of peculiar blackness or perpetrated
by criminals of exalted station.   Of this nature
was the criminal 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 interposing 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
tl7rough its tribuncals, is shown by the curious circumstances that in the original administration of justice,
the proceedings were a close imitation of the series
of acts which were likely to be gone through in
private 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 ROMAN 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 Sacramenti of the Romans, out of which all the later
Roman Law    of Actions may be proved to have
grown.   Gaius 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 Gaius, the suit is for a slave. The proceeding begins by the plaintiff's advancing with a
rod, which, as Gaius expressly tells, symbolised a
spear. He lays hold of the slave and asserts a right
to him with the words, "T une ego homninem ex Jure
Quiritiun meum   esse dico secundum  suam  causam
sicut dixi; "and then saying, " Ecce tibi Vindictam inposui," he touches him  with the spear.  The defendant goes through the same series of acts and
gestures; On this the Praetor intervenes, and bids the
litigants relax their hold,' Mittite ambo hominen."
They obey, and the plaintiff demands from the
defendant the reason of his interference, " Postudo




376        MEANING OF THE LEGIS ACTIO.      CHrA. x.
anne dicas quza ex causa vindicaveris," a question
which is replied to by a fresh assertion of right,
"Jus 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 injuria provocasti, D ceris Sacramento te
provoco," and the defendant, in the phrase " Similiter
ego te," accepts the wager. The subsequent proceedings were no longer of a formal kind, but it is to
be observed that the Pra3tor 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 Praetor, vir pietate gravis, happens to be going
by and interposes to stop the contest.   The disputants state their case to him, and agree that
he shall arbitrate between them, it being arranged
that the loser, besides resigning the subject of the
quarrel, shall pay a sum of money to the umpire
as remuneration for his trouble and loss of time.
This interpretation would be less plausible than it
is, were it not that, by a surprising coincidence, the
ceremony described   by Gaius 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 Hephastus is described by Homer as moulding
into the First Compartment of the Shield of Achilles.
In the Homeric trial-scene, the dispute, as if expressly intended to bring out the characteristics of
primitive society, is not about property, but about
the composition for a homicide.  One person asserts
that he has paid it, the other that he has never
received it.  The point of detail, however, which
stamps the picture as the counterpart of the archaic
Roman practice is the reward designed for the
judges.  Two talents of gold lie in the middle, to
be given to him who shall explain the grounds of the
decision most to the satisfaction of the audience.
The magnitude of this sum as compared with the
trifling amount of the Sacramentum   seems to me
indicative of the difference between fluctuating usage
and usage consolidated into law.  The scene introduced by the poet as a striking and characteristic,
but still only occasional, feature of city life in the
heroic age has stiffened, at the opening of the history
of civil process, into the 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 Prator




378        ANCIENT VIEW OF PROCEDURE.      CHAP. X.
represents.  But that the incidents described so
vividly by Homer, and by Gaius with even more
than the usual crudity of technical language, have
substantially the same meaning, I cannot doubt;
and in confirmation of this view it may be added
that many observers of the earliest judicial usages
of modern Europe have remarked that the fines
inflicted by Courts on offenders were originally
sacranenta.  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
bannum or fredum.
Ancient law furnishes other proofs that the earliest
administrators of justice simulated the probable acts
of persons engaged in a private quarrel. In settling
the damages to be awarded, they took as their guide
the measure of vengeance likely to be exacted by an
aggrieved person under the circumstances of the
case. This is the true explanation of the very different penalties imposed by ancient law on offenders
caught in the act or soon after it and on offenders
detected after considerable delay. Some strange exemplifications of this peculiarity are supplied by the
old Roman law of Theft.  The laws of the Twelve
Tables seem to have divided Thefts into Manifest and




CHAP. x.    OLD ROMAN LAW OF THEFT.          379
Non-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 property. 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 lergal 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




380      ANCIENT MEASURE OF PUNISHMIENT.  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 undertakes to discriminate between the degrees of criminality 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 bigamy, but it is often most difficult to pronounce what
extent of moral guilt he has incurred, and consequently what measure of punishment he has deserved.
There is hardly any perplexity in casuistry, or in the
analysis of motive, which we may not be called upon
to confront, if we attempt to settle such a point with
precision; and accordingly the law of our day shows
an increasing tendency to abstain as much as possible from 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
ia the Prerogative of Pardon, universally lodged with




CHAP. X.   TRUE CRIMINAL JURISPRUDENCE.        381
the Chief Magistrate. It is curious to observe how
little the men of primitive times were troubled with
these scruples, how completely they were persuaded
that the impulses of the injured person were the
proper measure of the vengeance he was entitled to
exact, and how literally they imitated the probable rise
and fall of his passions in fixing their scale of punishment. I wish it could be said that their method of
legislation is quite extinct. There are, however,
several 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 considerations which ultimately led ancient societies to
the formation of a true criminal jurisprudence. The
State conceived itself to be wronged, and the Popular
Assembly struck straight at the offender with the
same movement which accompanied its legislative
action. It is further true of the ancient worldthough 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  CRIMINAL JURISDICTION OF LEGISLATURE.  CHAP. 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 offences partly to the Archons, who
seem to have punished them as torts, and partly to
the Senate of Areopagus, which punished them as
sins. Both jurisdictions were substantially transferred in the end to the Heliaa, the High Court of
Popular Justice, and the functions of the Archons
and of the Areopagus became either merely ministerial or quite insignificant.  But " Heliea " is only
an old word for assembly; the Heliea of classical
times was simply the Popular Assembly convened
for judicial purposes, and the famous Dikasteries of
Athens were only its subdivisions or panels.  The
corresponding changes which occurred at Rome are
still more easily interpreted, because the Romans
confined their experiments to the penal law, and did
not, 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, at which the Kings are said
to have presided. These were simply solemn trials
of great offenders under legislative forms. It seems,
however, that from an early period the Comitia had
occasionally delegated its criminal jurisdiction to a
Questio or Commission, which bore much the same
relation to the Assembly which a Committee of the




CHAP. x.         THE QUzESTIONES.             383
House of Commons bears to the House itself, except
that the Roman Commissioners or Qusestores did not
merely report to the Comitia, but exercised all powers
which that body was itself in the habit of exercising,
even to the passing sentence on the accused.   A
Quasstio of this sort was only appointed to try a particular offender, but there was nothing to prevent
two or three Quaestiones sitting at the same time;
and it is probable that several of them were appointed simultaneously, when several grave cases of
wrong to the community had occurred      together.
There are also indications that now and then these
Qusestiones approached the character of our Standing
Committees, in that they were appointed periodically, and without waiting for occasion to arise in
the commission of some serious crime.    The old
Quoestores Parricidii, who are mentioned in connection with transactions of very ancient date, as being
deputed to try (or, as some take it, to search out
and try) all cases of parricide and murder, seem to
have been appointed regularly every year; and the
Duumviri Perduellionis, or Commission of Two for
trial of violent injury to the Commonwealth, are also
believed by most writers to have been named periodically. The delegations of power to these latter
functionaries bring us some way forwards. Instead
of being appointed when and as state-offences were
committed, they had a general, though a temporary




384           QULESTIONES PERPETULE.      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
"Perduellio," which mark the approach to something like a classification of crimes.
The true criminal law did not however come into
existence till the year B.C. 149, when L. Calpurnius
Piso carried the statute known as the Lex Calpurnia
de Repetundis. The law applied to cases Repetundarum Pecuniarum, that is, claims by Provincials to
recover monies improperly received by a GovernorGeneral, but the great and permanent importance of
this statute arose from its establishing the first Qusestio
Perpetua.  A Questio Perpetua was a Permanezt
Commission as opposed to those which were occasional
and to those which were temporary. It was a regular criminal tribunal, whose existence dated from
the passing of the statute creating it and continued
till another statute should pass abolishing it.  Its
members were not specially nominated, as were the
members of the older Quastiones, but provision was
made in the law constituting it for selecting from
particular classes the judges who were to officiate, and for renewing them  in conformity with
definite rules.  The offences of which it took cognisance were also expressly named and defined in
this statute, and the new Qumstio had authority to
try and sentence all persons in future whose acts




nCXA. x.     HISTORY OF CRIMINAL LAW.           385
should fall under the definitions of crime supplied by
the law.  It was therefore a regular criminal judicature, administering a true criminal jurisprudence.
The primitive history of criminal law divides itself therefore into four stages.  Understanding that
the conception of Crime, as 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 Quasstiones or Commissions, each of which
is deputed to investigate a particular accusation, and,
if it be proved, to punish the particular offender.
Yet another movement is made when the legislature,
instead of waiting for the alleged commission of a
crime as the occasion of appointing a Qusestio, periodically nominates Commissioners like the Qusestores
Parricidii and the Duumviri 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 Qusestiones
C C




386         THE QUALSTIONES PERPETUIE.    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.
If the Qusestiones Perpetuse had had a longer history, they would doubtless have come to be regarded
as a distinct institution, and their relation to the
Comitia would have seemed no closer than the connection of our own Courts of Law with the Sovereign,
who is theoretically the fountain of 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 Qumestiones to the Comitia which had
deputed them to put into exercise some of its own
inalienable functions. The view which regarded the
Quastiones, even when they became permanent,
as mere Committees of the Popular Assembly-as
bodies which only ministered to a higher authority




CBAP. x.   THEORY OF THE QULESTIONES.        387
-had some important legal consequences which left
their mark on the criminal law to the very latest
period. One immediate result was that the Comitia
continued to exercise criminal jurisdiction by way of
bills of pains and penalties, long after the Questiones
had been established. Though the legislature had
consented to delegate its powers for the sake of convenience to bodies external to itself, it did not follow
that it surrendered them. The Comitia and the
Qusestiones went on trying and punishing offenders
side by side; and any unusual outburst of popular
indignation was sure, until the extinction of the
Republic, to call down upon its object an indictment
before the Assembly of the Tribes.
One of the most remarkable peculiarities of the
institutions of the Republic is also traceable to this
dependence of the Qusstiones on the Comitia. The
disappearance of the punishment of death from
the penal system of Republican Rome used to be
a very favourite topic with the writers of the last
century, who were perpetually using it to point some
theory of the Roman character or of modern social
economy. The reason which can be confidently assigned for it stamps it as purely fortuitous. Of the
three forms which the Roman legislature successively
assumed, one, it is well known-the Comitia Centuriata
-was exclusively taken to represent the State as embodied for military operations.  The Assembly of the
cc2




388             PUNISIMENT OF DEATH.       CHAP. x.
Centuries, therefore, had all powers which may be
supposed to be properly lodged with a General commanding an army, and, among them, it had authority
to subject all offenders to the same correction to
which a soldier rendered himself liable by breaches
of discipline. The Comitia Centuriata could therefore inflict capital punishment. Not so, however,
the Comitia Curiata or Comitia Tributa.  They were
fettered on this point by the sacredness with which
the person of a Roman citizen, inside the walls of the
city, was invested by 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 the more democratic assembly, that of the Tribes,
almost entirely superseded the others, and became
the ordinary legislature of the later Republic. Now
the decline of the Republic was exactly the period
during which the Quoestiones Perpetua were established, so that the statutes creating them were all
passed by a legislative assembly which itself could
not, at its ordinary sittings, punish a criminal with




CHAP. x.     PUNISHMENT OF DEATH.           389
death. It followed that the Permanent Judicial Commissions, holding a delegated authority, were circumscribed 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
Questiones were equally incompetent to award capital punishment.  The anomaly thus resulting was
not viewed in ancient times with anything like the
favour which it has attracted among the moderns,
and indeed, while it is questionable whether the
Roman character was at all the better for it, it is
certain that the Roman Constitution was a great deal
the worse. Like every other institution which has
accompanied the human race down the current of its
history, the punishment of death is a necessity of
society in certain stages of the civilising process.
There is a time when the attempt to dispense with it
baulks both of the two great instincts which lie at
the root of all penal law. Without it, the community neither feels that it is sufficiently revenged
on the criminal, nor thinks that the example of
his punishment is adequate to deter others from
imitating him.  The incompetence of the Roman
Tribunals to pass sentence of death led distinctly and
directly to those frightful Revolutionary intervals,
known as the Proscriptions, during which all law was




;390  RESULTS TRACEABLE TO THE QUIESTIONES. 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
Roman people as this periodical abeyance of the
laws; and, when it had once been resorted to, we
need not hesitate to assert that the ruin of Roman
liberty became merely a question of time. If the
practice of the Tribunals had afforded an adequate
vent for popular passion, the forms of judicial procedure would no doubt have been as flagrantly perverted as with us in the reigns of the later Stuarts,
but national character would not have suffered as
deeply as it did, nor would the 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 tribunals, and the capricious and anomalous classification of crimes which characterised Roman penal
jurisprudence throughout its entire history. Every
Qucestio, it has been said, whether Perpetual or
otherwise, had its origin in a distinct statute. From
the law which created it, it derived its authority;
it rigorously observed the limits which its charter
prescribed to it, and touched no form of criminality
which that charter did not expressly define.  As




CHAP. x. RESULTS TRACEABLE TO THE QULESTIONES. 391
then the statutes which   constituted the various
Questiones were all called forth by particular emergencies, each of them being in fact passed to punish
a class of acts which the circumstances of the time
rendered particularly odious or particularly dangerous, these  enactments made not the slightest
reference to each other, and were connected by no
common principle.   Twenty or thirty different criminal laws were in existence together, with exactly
the same number of Questiones 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 Roman criminal jurisdiction at this period,
exhibited some resemblances to the administration
of civil remedies in England at the time whei 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 Quoestiones, the Courts
of Queen's Bench, Common Pleas, and Exchequer,
were all theoretical emanations from a higher authority, and each entertained a special class of cases
supposed to be committed to it by the fountain of its
jurisdiction; but then the Roman Quaestiones were
many more than three in number, and it was infinitely
less easy to discriminate the. acts which fell under




392         TRIAL BY THE QULESTIONES.      CHAP. X.
the cognisance of each Quoestio, than to distinguish
between the provinces of the three Courts in Westminster Hall.  The difficulty of drawing exact lines
between the spheres of the different Questiones made
the multiplicity of Roman tribunals something more
than a mere inconvenience; for we read with astonishment that when it was not immediately clear under
what general description a man's alleged offences
ranged themselves, he might be indicted at once or
successively before several different Commissions, on
the chance of some one of them    declaring itself
competent to convict him; and, although conviction
by one Qumstio ousted the jurisdiction of the rest,
acquittal by one of them could not be pleaded to an
accusation before another.  This was directly contrary to the rule of the Roman civil law; and we
may be sure that a people so sensitive as the Romans
to anomalies (or, as their significant phrase was, to
inelegancies) in jurisprudence, would not long have
tolerated it, had not the melancholy history of the
Quastiones 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.  The classifications of crimes which




CHAP, x.    CLASSIFICATIONS OF CRIMES.        393
are contained even in the Corpus Juris of Justinian
are remarkably capricious.  Each Qumstio had, in
fact, confined itself to the crimes committed to its
coonisance 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 subjectmatter of trials before a particular Qusestio impressed
itself naturally on the public attention, and so inveterate 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 Roman
criminal law, the legislator preserved the old grouping.  The Statutes of Sylla and Augustus were the
foundation of the penal jurisprudence of the Empire,
and nothing can be more extraordinary than some of
the classifications which they bequeathed to it. I
need only give a single example in the fact that
perjury was always classed with cutting and wounding
and with poisoning, no doubt because a law of 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 vernacular speech of the Romans. People naturally




394           LATER LAW OF CRIMES.        CHSP. x.
fell into the habit of designating all the offences enunerated in one law by the first name on the list,
which doubtless gave its style to the Law  Court
deputed to try them all. All the offences tried by
the Quoestio De Adulteriis would thus be called
Adultery.
I have dwelt on the history and characteristics of
the Roman Questiones because the formation of a
criminal jurisprudence is nowhere else so instructively exemplified. The last Quaestiones were added
by the Emperor Augustus, and from that time the
Romans may be said to have had a tolerably complete criminal law. Concurrently with its growth,
the analogous process had gone on, which I have
called the conversion of Wrongs into Crimes, for,
though the Roman legislature did not extinguish the
civil remedy for the more heinous offences, it offered
the sufferer a redress which he was sure to prefer.
Still, even after Augustus had completed his legislation, several offences continued to be regarded as
Wrongs, which modern societies look upon exclusively 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 description of offences called in the Digest cririna
extraordinaria.  These were doubtless a class of acts
which the theory of Roman jurisprudence treated
merely as wrongs; but the growing sense of the




CHAP..      LATER LAW OF CRIMES.           395
majesty of society revolted from their entailing nothing worse on their perpetrator than the payment
of money damages, and accordingly the injured
person seems to have been permitted, if he pleased,
to pursue them as crimes extra ordincm, that is, by a
mode of redress departing in some respect or other
from the ordinary procedure. From the period at
which these crimina extraordinaria were first recognised, the list of crimes in the Roman State must
have been as long as in any community of the
modern world.
It is unnecessary to describe with any minuteness
the mode of administering criminal justice under the
Roman Empire, but it is to be noted that both its
theory and practice have had powerful effect on
modern society. The Emperors did not immediately
abolish the Quoestiones, and at first they committed
an extensive criminal jurisdiction to the Senate, in
which, however servile it might show itself in fact,
the Emperor was no more nominally than a Senator
like the rest. But some sort of collateral criminal
jurisdiction had been claimed by the Prince from the
first; and this, as recollections of the free commonwealth decayed, tended steadily to gain at the expense of the old tribunals. Gradually the punishment of crimes was transferred to magistrates
directly nominated by the Emperor, and the privileges Qf the Senate passed to the Imperial Privy




396     SOVEREIGN THE FOUNTAIN OF JUSTICE. CHAP. x.
Council which also became a Court of ultimate
criminal appeal. Under these influences the doctrine, familiar to the moderns, insensibly shaped
itself that the Sovereign is the fountain of all Justice
and the depositary of all Grace. It was not so much
the fruit of increasing adulation and servility as of
the centralisation of the Empire which had by this
time perfected itself.  The theory of criminal justice
had, in fact, worked round almost to the point from
which it started. It had begun in the 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 awfulness and majesty which the guardianship of
justice appeared to throw around the person of the
Sovereign.
This later Roman view of the Sovereign's relation
to justice certainly assisted in saving modern societies
from the necessity of travelling through the series
of changes which I have illustrated by the history of
the Qumestiones. In the primitive law of almost all
the races which have peopled Western Europe there
are vestiges of the archaic notion that the punishment of crimes belongs to the general assembly of
freemen; and there are some States-Scotland is




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 Committee of the legislative body. But the development
of the criminal law was universally hastened by two
causes, the memory of the Roman Empire and the
influence of the Church. On the one hand, traditions
of the majesty of the Caesars, 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 society and representative of the State. On the other
hand, the Church, in its anxiety to put a curb on
sanguinary ferocity, sought about for authority to
punish the graver misdeeds, and found it in those
passages of Scripture which speak with approval of
the powers of punishment committed to the civil
magistrate. 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 degree, might be assimilated to the Roman Magistrates
spoken of by Saint Paul; and next, that the offences




398  DOCTRINE OF THE CHURCH AS TO CRIMES. CHAP. X.
which he was to chastise were those selected for
prohibition in the Mosaic Commandments, or rather
such of them as the Church did not reserve to her
own cognisance. Heresy, supposed to be included
in the First and Second Commandments, Adultery,
and Perjury were ecclesiastical offences, and the
Church only admitted the co-operation of the secular
arm for the purpose of inflicting severer punishment
in cases of extraordinary aggravation. At the same
time, she taught that murder and robbery, with their
various modifications, were under the jurisdiction of
civil rulers, not as an accident of their position, but
by the express ordinance of God.
There is a passage in the writings of King Alfred
(Kemble, ii. 209) which brings out into remarkable
clearness the struggle of the various ideas that prevailed in his day as to the origin of criminal jurisdiction. It will be seen that Alfred attributes it
partly to the authority of the Church and partly
to that of the Witan, while he expressly claims for
treason against the lord the same immunity from
ordinary rules which the Roman Law of Majestas
had assigned to treason against the Caesar. " After
this it 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




CHAP. 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
Himself."








INDEX.
D D








INDEX.
ADOPTION                             BURGUNDIANS
A DOPTION, fiction of, 130           Aristocracies, importance of judicial, be- influence of the sacra gentilicia    fore the invention of writing, 12
on the law of, 6, 7, 27       - foundation of aristocracies, 132
in Hindoo law, 193                  Aristotle, his "Treatise on Rhetoric,"
Adprehensio; or assumption of sove-     referred to, 75
reign power in a newly discovered   Assignees in Bankruptcy, succession of,
country, 249                          180
ZEquitas, the term, 58. See Equity    Athenian wills, 196.Equus, the word, 59                  Athens, primitive penal law of, 382
Agnatic and Cognatic relationship, dif-  Augustus, the Emperor, his alterations
ference between, 59, 146              in the Roman law, 41, 42
Agnation described, 147, 148          Austin's "Province of Jurisprudence
Agreement, Roman analysis of, 322        Determined " referred to, 7
Agri vectigales, Roman practice of letting out, 300
-limitrophi of the Romans on the      BAYLE referred to, 87
banks of the Rhine and Danube,     D     Benefices of the invading chiefs of
502                                 the Roman Empire, 229
Alexander the Sixth, Pope, his Bull,  -transformation of the Benefice into
249                                     the hereditary Fief, 230
Alfred, King, his remarks on criminal  Bengalee Wills, 197
jurisdiction, quoted, 398           Bentham, his "Fragment on GovernAlienation of property, ancient diffi-  ment," referred to, 7
culties of, 271                     - causes of his influence in England, 7S
- archaic ceremonies of, 272          - the Roman counterpart of BenthamAllodial property, of the ancient Ger-    ism, 79
mans, 228, 281                      - the theory of Jurisprudence, 117
America, United States of, Declaration  - his eulogy of the Bull of Pope Alexof Independence of, 95                   ander the Sixth, 249
Anglo-Saxons, character of their King-  - Bentham and Austin's rules as to the
ship, 108                               essentials of a contract, 323
-- their law of succession, 280       Blackstone, Sir William, his theory of
- their penal law, 370, 374, 379        the first principles of law, 114
Archon of Athens, the office of the, 10  - his justification for the exclusion of
Aristocracies, origin of the rule of, 10  the half-blood, 152
-  those of Greece, Italy, and Asia   - his theory of the origin of property
Minor, 10                             quoted, 251
-difference between those of the East  - his theory criticised, 253
and West, 11                      Bonorum Possessio of the Romans, 211
- aristocracies the depositaries and ad-  Bracton, his Plagiarisms, 82
ministrators of the law, 11, 12   Burgundians, the, referred to, 104
D D 2




404                               INDEX.
C(ESAR                                 CONTRACT
CESSAR, Julius, his contemplated ad     Cognatic relationship described, 146,
ditions to the Roman Statute Law, 42   147
Capet, Hugh, character of his sove-     Co-heirs, rights and duties of, 181
reignty, 108                          - rights of, under the Roman Law, 227
Capture in War, sources of the modern   Coloni of the Romans, 231
International Law of, 246             - origin and situation of the, 300
- ancient Law of, 247                   Comitia Calata, ancient Roman execuCaracalla, effect of his constitution in  tion of Wills in the, 199
enlarging the Patria Potestas, 144    - end of the, 203
Casuists, the, 350                      Comitia Centuriata, power of the, 387
- comparison of their system with that  - Curiata, powers of the, 318
of Grotius and his school, 351      - Tributa, powers of the, 388
- origin of Casuistry, 351              Commentaries of the Roman lawyers, 35
- blow struck at Casuistry by Pascal,   Common law of England, formerly an
352                                   unwritten law, 13
Cessio in Jure of Property, in Roman    -difference  between   Case-law  and
and in English Law,,89                   Code-law, 14
Cestui que Trust, special proprietorship  - Case-law and its anomalies, 31
created for the, 294                  - similarity between English Case-law
Chancellor, the Lord, compared with a       and the Responsa Prudentum of the
Roman Proetor, 64, 65                     Romans, 33
Chancery, Court of, in England, re-     Confarreation, or religious marriage of
marks on the, 44                        the ancient Romans, 154
- origin of its system, 44, 45          Constantine, the Emperor, his improveCharlemagne, his claim to univeral do-    ments in the Law, 42
minion, 104                           - his modification of the Patria Po- his distribution of Benefices, 229        testas, 143
Children, disinherison of, under the    Contract, movement of societies from
Romans, 215                             Status to, 170
China, cause of the arrest of progress  - early history of, 304
in, 25                                - Contract and Political Economy, 305
Churches, Eastern and Western, con-     - Rousseau's doctrine of an original
elusion of the East on theological        Social Contract, 308, 309
subjects accepted by the West with-   - Montesquieu's apologue of the Trogout dispute or review, 356                lodytes, 311
-problems of the Western Church, 357    -  early notions of Contract, 312
Cicero referred to, 61                  -- Roman Contracts, 314
-his allusions to the ancient Roman     - specialising process in ancient law,
Sacra, 193                              316
Code Napoleon, restraints imposed by it  - historical alliance between Contracts
on the testamentary power, 176            and Conveyances, 317
Codes, Ancient, 1- changes in the Nexum, 318
-sources of knowledge afforded by the   - Executory Contracts of Sale, 321
Greek Homeric poems, 2-               primitive association of Conveyances
-Themistes, 4                              and Contracts, 321
-  indoo Laws of Menu, 6              - ancient and modern doctrine of Con-difference   between  Case-law  and        tracts, 323
Code-law, 14                       - the Roman Obligation, 323
-era of Codes, 14                     - Roman classification of Contracts,
-the Twelve Tables, 1, 2, 14                325
-the Codes of Solon and Draco, 14       - the Verbal Contract, 327
-importance of Codes to ancient so-     -the Literal or Written Contract, 330
cieties, 16-19                     - the Real Contract, 331
Co-emption, or higher form of civil mar-  - Consensual Contracts, 332
riage of the ancient Romans, 154     - changes in Contract law, 337




INDEX.                               405
CONTRACT                             ELPHINSTONE
Contract, history of the progress of Con-  Delict and Crime, Furtum or Theft of
tract law, 338                         the Roman Law, 370, 379
- Quasi-Contracts, 343                 - Wrongs and Sins both known to pri- Contract law and Fiefs, 365              mitive jurisprudence, 371
Conveyances, relation of Wills to, under  - difference between the ancient and
the Roman Law, 204                       modern conception of Crime, 373
- consequence of this relation, 206    - the Roman Legis Actio Sacramenti,
- remedies, 207                            375
- historical alliance between Contracts  - Homer's description of an ancient
and Conveyances, 317                   law-suit, 377
Co-ownership of property, amongst the  - primitive penal law of Athens, 382
Hindoos, 260, 261                    - old Roman criminal jurisprudence,
- regarded by the Roman Law as ex-       382
ceptional and momentary, 261      - the Qusestiones, 382, 383
Corporations aggregate, 187            - Questores Parricidii, 383
- sole, leading attribute of, 187      - Duumviri Perduellionis, 383
( Corpus Juris Civilis" of Justinian, 68  -- the first true Roman Criminal Law,
— resorted to by English Chancery          384
judges, 44                         - the primitive history of criminal law,
Creation, Greek philosophical explana-     385
tion of the fabric of, 55            - extreme multiplicity of Roman criCreditors, cause of the extravagant        minal tribunals, 390
powers given to, by ancient laws,    -capricious classification of crimes,
321                                      392, 393
Crimes and Wrongs. See Delict and      - statutes of Sylla and Augustus, 393
Crime- later law of crimes, 394
Croatia, co-ownership of the villagers of,  - crimina extraordinaria, 394
267                                  - mode of administering criminal jusCuratores of male Orphans under the        tice under the Roman Empire, 395Roman Law, 161                       - modern history of crimes, 397
Curse, inherited, Greek notion of an,  - King Alfred on Criminal jurisdiction
127                                     quoted, 398
Customary Law, 5                       Discovery, considered as a mode of ac- Homeric terms for customs, 5           quiring dominion, 248
- origin. of customary law, 9          Dominion, its nature, limitation, and
- epoch of customary law and its cus-    mode of securing it, 102
tody by a privileged order, 13    -- of the Romans, 317
*Cyclops, Homer's account of, quoted,  Dower, the principle of, engrafted on the
124                                    Customary Law of Western Europe,
224
Draco, rudeness of the Code of, 16
DEATH, disappearance of, from the      - penal laws of, 367
penal system of republican Rome,  Dumoulin referred to, 86
387                               Dumont's "Sophismes Anarchiques,"
- causes for this, 387, 388             remarks, 92
- death punishment a necessity in cer-  Duumviri Perduellionis, the, 383
tain stages of society, 389
Debtors, cause of the severity of ancient
laws against, 321                     MDICT of the Roman Prsetor, 41, 57,
Decretals, forged, motives of the author  A2  63, 64, 66, 209, 293
of the, 82                          Egypt, Modern, rule of succession to the
Delict and Crime, early history of, 367  throne of, 242
- Penal law in ancient codes, 367      Eldon, Lord, his Chancellorship, 69
— Crimes and Wrongs, crivmnina and     Elphinstone's "History of India" quoted,
delicta, 370                         263




406                              INDEX.
EMPHYTEUSIS                              FRANCE
Emphyteusis, system of, 299 et seg.   Familise Emptor, office of the, 205
- rights of the Emphyteuta, 301       - rights and duties of the, 206
Emptor Familias. See Familise Emptor  - remarks on the expression Familiae
England, the Land-law of, at the present   Emptor, 208
time, 226                           Family, the, of Archaic society, 133
English Common Law, formerly an un-   - disintegration of the Family, 169
written law, 13                     - regarded as a corporation, 184
- law, hesitation of our Courts in de-  - organisations of elementary commuclaring principles of, 40             nities, 234
Equality of men, doctrine of the, 92  - Highland chieftainship, 234
- as understood by the Roman juris-   - Families, not Individuals, known to
consults, 93                          ancient law, 258
- its meaning in its modern dress, 93  - Indian, Russian, Croatian, and Scla- ordinance of Louis Hutin quoted, 94     vonian laws respecting the property
— declaration of American Indepen-         of Families, 260, 269
dence, 95                         Feudal view of the ownership of pro- assumption of the Grotian school,     perty, 295
101                               Feudal services, 303
Equity, early history of, 25          Feudalism, its connection with territo-equity considered as an agent by        rial sovereignty, 107
which the adaptation of law to so-  - feudal organisation, 107, 108
cial wants is carried on, 28      - the modern Will an accidental fruit
- meaning of the term equity, 28           of, 224, 225
-difference between equity and legal  - Feudalism and Contract law, 365
fictions, 28                      Fictions, legal, 21, 23
-    - between equity and legislation,  - early history of, 23
28, 29                            - meaning of fctio in old Roman Law,
remarks on the law of nature and         25
equity, 44 et seq.                - object of the fictiones, 26
-the English Court of Chancery, 44    - instances cited from the English and
- origin of its system, 44, 45             Roman Law, 26
- the equity of Rome, 45              - their former importance and modern
-origin and history of the term            uselessness, 27, 28
" Equity," 58                     - difference between legal fictions and
- the terms ZEquitas and'IGo-rjs, 58     equity, 28
- picture presented to the Roman mind  - and between legal fictions and legisby the word " Equity," 60             lation, 29
-the English   Chancellor compared    - instances of legal fictions, 31
with the Roman Prsetor, 65        -- Case-law and its anomalies, 31
- exhaustion of the power of growth   Fidei-Commissa, or Bequests in Trust,
in Roman Equity, 68                 of the Roman Law, 223
-features common to English and       Fiefs, hereditary, gradual transformaRoman Equity, 68 et seq.            tion of Benefices into, 230
distinction between Law and Equity   - original tenures, 230, 231
in their conceptions of proprietary  - laws of fiefs, 365
right, 293,                       Foreigners, causes of immigration of,
Ethics, obligations of, to the Roman    into ancient Rome, 46, 47
Law, 347                            - exclusion of, under the early Roman
— the Casuists', 350                      republic, 48
- Grotius and his school, 350         France, lawyers and judicial science of,
80 et seq.
-effects of the alliance between the
FAMILIA, meaning of, in the lan-          lawyers and the kings, on the forguage of the ancient Roman Law,        tunes of, 80, 81
208                                 France, difference between the Pays du




INDEX.                                407
PRANCE                                 IINDOOS
IDroit Coutumier and the Pays du      Grotius, his doctrines. 100
Droit Ecrit, 84                      - success of his treatise "De Jure Belli
France, pre-eminence given in France to     et Pacis," 111
Natural Law, 85                      - his theory of a natural state and of
- Rousseau, 87                              a system of principles congenial to
-the Revolution, 89                         it, 114
Franks, the, referred to, 104           - his moral philosophy and that of his
-Roman institution of the Patria Po-        school, 350
testas not known to the, 143         - comparison of his system with that
Freewill and Necessity, question of, un-    of the Casuists, 351
known to the Greeks, 304              Guardianship, Perpetual, of Women,
Furtum, or Theft, of the Roman Law, 370     under the Roman Law, 153
- amongst the Hindoos, 158
- amongst the Scandinavians, 153
p AIUS referred to, 52
- his description of the institution
of the Patria Potestas, 133          TTLEREDITAS, or Inheritance, defini- his information respecting the Per-   H    tion, 181
petual Tutelage of women, 153      Hteres or Heir, his rights and duties,
- on the duplication of proprietary       181, 190, 227
right, referred to, 295            Half-blood relationship, 151
Galatse, the Patria Potestas of the, 136  - the rule according to tne customs of
Gens, or House, of the Romans compared      Normandy, 151
with the Village Community of India,  Hafis-Gesetze of Germany, 232
264                                  Heirs, rights of, under the Roman Law,
Gentiles, Roman, their rights in cases of  131, 190, 227
Intestate Succession, 221            Highland chieftainship hereditary, 234
German law of Succession, 280          - form of Primogeniture, 240
Germans, Wills of the ancient, 196, 198  Hindoo laws of Menu, 6, 17, 18
- penal laws of the ancient, 367       - Customary Law, 7
- Patria Potestas of the, 143          -law of Succession, 280
- primitive property of, 198           - difference between Inheritances and
-the ancient law of allodial property,    Acquisitions, 281
228                                - Perpetual   Tutelage   of Women
"Germany" of Tacitus, its value, 120        amongst the Hindoos, 153
-  suspicions as to its fidelity, 121  - right amongst the Hindoos, to
- allodial property of, 281                 inherit a dead man's property, 191
Greece, aristocracies of, 10           - the Hindoo sacra, 192
Greek theory of a Law of Nature, 52, 53  - the Suttee, 193
Greeks, equality of laws on which they  - the place of Wills amongst the Hinprided themselves, 58                     doos occupied by Adoptions, 193
- their tendency to confound law and    - rights of the first-born son amongst
fact, 75                                the Hindoos, 228
- their notion of an inherited cirse, 127  - primogeniture of the Hindoos in
- assistance afforded by, in the forma-     public office or political power, but
tion of the Roman codes, 15            not in property, 233
- limited Patria Potestas of the, 136,  Hindoos, form of Ownership of Property
137                                  amongst the,-the Village Commu- metaphysics of the, 300                nity, 260
- their want of capacity for producing  - Co-ownership, 261
a philosophy of law, 354           - simplest form of the Village CommuGrote, Mr, his "History of Greece," re-     nity, 262, 965
ferred to, 5, 9                      - Acquisitions of Property and Inh'eGrotius, Hugo, and his successors, on      ritances,Hindoo distinction between,
International law, 96                     281




408                              INDEX.
HOBBES                              JUS NATURALE
Hobbes, his theory of the origin of law,  Italy, territorial sovereignty of princes
114                                   of, 108
Homer, his account of the Cyclops,
quoted, 124
- his description of an ancient law-suit,  TEWS, Wills of the, 197
377                                   Julianus, Salvius, the Praetor,. his
Homeric poems, rudimentaryjuralideas      Edict, 64
afforded by the, 2, 3               - effect of his measures on the Proeto- Themis and Themistes, 4, 5              rian Edicts, 66
- Homeric words for Custom, 5         Jurisconsults, early Roman, 37-39
- later, 41
- Natural Law of the, 76
INDIA, heroic and aristocratic eras of  Jurisprudence, golden age of Roman, 55
l the races of, 10                    Jurists, Roman, period of, 66, 68
- laws of Menu, 6, 17,18              Jus Gentium, origin of, 47 et seq.
- Customary law of, 7                 - circumstances of the origin of, 50
- stage beyond which India has not    - how regarded by a Roman, 51
passed, 23                        - and by a modern lawyer, 51
Inheritance a form of universal succes-  - difference between the Jus Gentium
sion, 177                               and the Jus Naturale, 52, 53
- Roman definition of an Inheritance,  - point of contact between the old Jus
181                                   Gentium and the Jus Naturale, 58
- old Roman Law of, 189               -difference between the Jus Gentium
- and Acquisition, Hindoo differences     and the Quiritarian Law, 59
between, 281                      - influence of the, on modern civilisaInjunction of the Court of Chancery,      tion, 103
293                                 Jus Feciale, or International Law of the
Institutes of the Roman lawyers, 35       Romans, 53
International Law, modern confusion   Jus Naturale, or Law of Nature, 52
between it and Jus Gentium, 53      - difference between the Jus Naturale
- function of the Law of Nature in         and the Jus Gentium, 53
giving birth to modern Interna-   - Greek conceptions of Nature and her
tional Law, 96                        law, 53
- postulates forming the foundation of  - point of contact between the old Jus
International Law, 96                 Gentium and the Law of Nature, 58
-- Grotius and his successors, 96     - modern history of the Law of Na- dominion, 102                            ture, 73
-territorial sovereignty, 103         -Natural law of the Roman Juris-the ante-Grotian system of the Law       consults, 76
of Nations, 109                   - ancient counterpart of Benthamism,
- preparation of the public mind for      79
the reception of the Grotian system,  - vastness of the influence of the Law
110                                   of Nature on modern society, 80
-success of the treatise "De Jure     - history of the Law of Nature, 80 et
Belli et Pacis," 111                  seq.
- points of junction between modern   - pre-eminence given to Natural law in
public law and territorial sove-      France, 85
reignty, 112                      - its condition at the middle of the
- sources of the mode in case of Cap-      18th century, 86
ture in War, 46                   - Rousseau, 87
Intestacy. See Succession, Intestate  - the French Revolution, 89'Iodrs, the Greek principle of, 58, 61  - equality of men, 92
Italy, aristocracies of, 10           - function of the Law of Nature in
- codes of, 17                            giving birth to modern Interna- instability of society in ancient, 47   tional Law, 96




INDEX.                               409
JUS NATURALE                             NATIONS
Jus Naturale, sources of the ModernIn-     adaptation of law to the social
ternational Law of Capture in War, 246   wants is carried on, 29
Justinian's " Institutes" quoted, 46  Legislation, difference between it and
-referred to, 57                        legal fictions, 28, 29
-     "Pandects" of, 67               Lex Calpurnia de Repetundis, the first
- "Corpus Juris Civilis" of, 68         true Roman Criminal Law, 384.
his modifications of the Patria Po-  Lex Pletoria, purport of the, 161
testes, 143                       Lidi of the Germans, 231
- his scale of Intestate Succession, 219  Local Contiguity as the condition of
community in political functions, 132
Locke, John, referred to, 87
INGS, origin of the doctrine of the   - his theory of the origin of law, 114
divine right of, 346               Lombards, referred to, 114
Kingship, heroic, origin of, 9         Louis Hutin, King of France, his ordinance quoted, 94
T ACEDAjMONIAN kings, authority
of the, 10)                         /AHOMETAN       Law of Succession,
Land-law of England at the present     J1     242
day, 226                            Majority and Minority, meaning of the
Land and goods, English distinction      terms in Roman Law, 162
between, 283                        Mancipation, Roman, 50, 204, 278,
Latifundia, Roman mode of cultivating    317
the, 299                            - mode of giving the effect of ManciLaw, social necessities and opinions al-   pation to a Tradition, 279
ways in advance of, 24              Manus of the Romans, 317
-- agencies by which law is brought   Marriage, ancient Roman, 154
into harmony with society, 25     - later Roman, 155
ancient, 113                        Master and Slave, 162
-theories of a natural state and of a  - under the Romans, 163
system congenial to it, 113       - in the United States, 163
- Grotius, Blackstone, Locke, and     Menu, Hindoo Laws of, 6, 17, 18
Hobbes, 114                       Merovingian kings of the Franks, 104
- theory of Montesquieu, 115          Metayers, the, of the south of Europe,
-- Bentham, 117                          301
- dissatisfaction with existing theories,  "Moniteur," the, during the period of
118                                 the French Revolution, 92
proper mode of inquiry, 119          Montesquieu's "Esprit des Lois," re-the Patriarchical theory, 122           marks on, 86
- fiction of Adoption, 130             - his Theory of Jurisprudence, 115
-- the archaic Family, 133             - Apologue of Montesquieu concerning
-the Patria Potestas of the Romans,        the Troglodytes, in the "Lettres
133                                   Persanes," 311
- agnatic and cognatic relationships,  Moral doctrines, early, 127
146                               Mortgagor, special proprietorship cre.
-Guardianship of Women, 153            ated by the Court of Chancery for
ancient Roman Marriage, 154          the, 294
- Master and Slave, 162               Moses, testamentary power not provided
Leges Barbarorum, 297                    for by the Laws of, 197
Leges Corneliae of Sylla, 41, 42
Leges Julire of Augustus, 41, 42
Legis Actio Sacramrenti of the Romans  ]APLES, territorial sovereignty of
described, 375                       N    the monarchs of, 108
ILegislation, era of, 25              Nations, Law of, 96 et seq. See Inter- considered as an agent by which the   national Law and Jus Gentium




410                              INDEX.
NATURE                             PRIMOGENITURE
Nature and her Law, Greek conceptions  Penal law in ancient codes, 367
of, 53                              Perjury, how punished by the ancient
Nexczm of the ancient Romans, 48, 315    Romans, 893
-changes in the, 318                  Persian monarchy, heroic and aristoNormandy, customs of, referred to, 151   cratic eras of the races composing
No/ios, the word not known to the Ho-    the, 11
meric poems, 5                      Persians, the ancient, their veracity, 308
Nuncupatio, of the Romans, 205         4vris of the Greeks, meaning of the,
53
Plebeian Wills of the Romans, 201
OBLIGATIONS of the Roman Law,         - legalised by, at the Twelve Tables,
323                                   202
- rights and duties of, 324           - their influence on the civilisation of
Occupatio, or Occupancy, of the Roman     the modern world, 203
Law, a "natural mode of acquiring   Political ideas, early, 128
property," 245, 250                 - foundation of aristocracies, 132
- things which never had an owner, 245  Political Economy and Contract, 305
- things which have not an owner, 245  Polygamy, its influence on Primogeni- Capture in war, 246                    ture, 243
- Discovery, 248                      Possessory interdicts of the Roman Law,
- objections to the popular theory of    291
Occupancy, 256                    Praetor, origin of the office of, 62
Ordinance of Louis Hutin, quoted, 94  - Edict of the, 41, 57, 63, 66
Orphans, Guardianship of male, under  - the Roman, compared with an Engthe Roman Law, 160                       lish Chancellor, 64, 65
— restraints on the Praetor, 65
- the Praetor the chief equity judge as
PACTES de Famille of France, 232           well as the great common law maI Pascal, his' Lettres Provinciales,"    gistrate, 67
352                               Praetor Peregrinus, office of the, 63
Paterfamilias in elementary communi-   Prsetorian Edict of the Romans, 41, 57,
ties, 234, 235                         65, 66
Patria Potestas, the, of the Romans, 133  - the Edictum Perpetuum, 63
- of the Galatae, 136                  - that of Salvius Julianus, 64, 66
- of the Greeks, 136, 137             - remedies given by the, 293
- causes which helped to mitigate the  Prnetorian Will, the, 209
stringency of the father's power  - described, 210
over the persons of his children, 141  Prescription of Property, history of,
- liabilities of the Paterfamilias, 145  284 et seq.
- unity of person between the Pater-  Primogeniture, changes in the Law of
familias and the Filiusfamilias, 145  Succession, caused by, 225
- rights and duties of the Paterfami-  - almost destroyed by the authors of
lias, 145, 146, 234, 235              the French code, 225, 226
-the Patria Potestas not a durable    - results of the French system, 226
institution, 146                  - rights of the first-born son amongst
Patriarchal theory of primeval juris-      the Hindoos, 228
prudence, 122                       - early history of Primogeniture, 229
-chief points from Scripturalaccounts,  - Benefices, 229
123                               - gradual transformation of Benefices
- Homer's account of the Cyclops, 124     into hereditary Fiefs, 230
Pays du Droit 1Ecrit and Pays du Droit  -  the Pactes de Famille of France and
Coutumier, difference between the, 84   the Hauz-Gesetze of    Germany,
Peculium, the, of the Romans, 142          232
Castrense Peculium, 142              - causes of the diffusion of Primogeni- Quasi-castrense Peculium, 142           ture, 232




INDEX.                                411
PRIMOGENITURE                          RES MANCIPI
Primogeniture in public offices or poli-  Property, influence of Courts of Law and
tical power amongst the Hindoos, but  of their procedure upon Property, 290
not in property, 233                - distinction between Property and
- ancient forms of Primogeniture, 235      Possession, 290
- why did Primogeniture gradually      - and between Law and Equity in their
supersede every other principle of    conceptions of proprietary right,
Succession? 235                       under the Roman and English
- earlier and later Primogeniture, 257     Law, 293
- Hindoo rule of the eldest son and of  - feudal view of Ownership, 295
the eldest line also, 239         -- Roman and barbarian law of Owner- Celtic form of Primogeniture, 240        ship, 296
- Mahometan form, 242                 - Roman system of Tenancy, 299
-influence of polygamy on Primogeni-  -the Coloni of the Romans and the
ture, 243                              Metayers of the South of Europe,
Progress, causes of the arrest of, of the  300, 301
greater part of mankind, 77         - rights of the Emphyteuta, 301
Property, early history of, 244       - the Agri Limitrophi of the Rhine
-" natural modes" of acquisition, 244    and the Danube, 302
- Occupancy, 245                      Proscriptions, Roman, origin of the, 389
- Capture in War, 246                 Pupilage or Wardship in modern juris- rule of Discovery, 248                   prudence, 162
- history of the origin of property, 250  - compared with the Guardianship of
- Blackstone on the theory of Occu-        Orphans under the Roman Law,
pancy as the origin of property, 251   162
- aphorism of Savigny on the origin of
property, 254
objections to the popular theory of    UIJASI-CONTRACT, 343
Occupancy, 256                         - meaning of, in Roman Law, 344
- Co-ownership amongst the Hindoos,   Quasi, meaning of the word, in Roman
260                                 Law, 344
-- the Gens, or House, of the Romans  Qusestiones Perpetuse of the Romans,
compared with the Village Com-      384
munity of India, 264              - theory of the Qusestiones, 386
- Russian village co-ownership, 266   - results traceable to the Qusestiones,
- Croatian and Sclavonian Laws re-         391
specting the property of Families,  Qusestores Parricidii of the ancient Ro269                                 mans, 383
- ancient difficulties of Alienation, 271  Querela Inofficiosi Testamenti of the old
-natural classification of property, 273  Roman Law, 215
- ancient modes of transfer of pro-    Quiritarian Law, the, 48
perty, 276                        - principles of the, 59
- definition of the Res Mancipi, 277   - difference between it and the Jus
- tradition of property, 278               Gentium, 59
- distinction between Res Mancipi, and
Res nee Mancipi, 279
-   indoo Law of Inheritances and     RECOVERIES, collusive, of property
Acquisitions, 281, 282                 in the Roman and English Law,
-law of moveables and law of land,       289
according to the French codes,    Regency, form   of, according to the
283                                 French custom regulating the succes- and in England, 283                   sion to the throne, 240
- Usucapion, or Prescription, 284     Reipus, the, of Germany, 281
- Cessio in Jure, or recovery, in a   Res Mancipi and Res nec Mancipi 274,
Court of Law, of property sought    279
to be conveyed, 289                - definition of the Res Mancipi, 277




41.2                              INDEX.
RES NULLIUS                               ROMANS
Res nullius of the Roman Law, 246       Roman Law, Wills anciently executed
Responsa Prudentium of the Romans         in the Comitia Calata, 199, 201
described, 33                            ancient Roman Law of Intestate Suc- similarity between them and English       cession, 199
Case-law, 33- Roman Wills described, 201
- decline and extinction of the Re-     - the Mancipation, 204
spouses, 40, 41                     - the Nuncupatio, 205
Revolution, French, effects of the theory  - the Prsetorian Will, 209
of the state of Nature on the, 91     - first appearance of Sealing in the
Rex Sacrorum, or Rex Sacrificlus, office    history of jurisprudence as a mode
of the, 10, 62                            of authentication, 210
Roman Law, 1                            -  Querela Inofficiosi Testamenti, 215
- the Twelve Tables, 1, 2, 14, 33       - Disinherison of Children under, 215
- influence of the sacra on the Law of  - Intestate Succession under, 218
Adoption and of Wills, 6, 7         - Fidei-Commissa,orbequests in trusts,
-class of codes to which the Roman         223
code belongs, 15                    -  rights of Co-heirs, 227
- probable   assistance  afforded  by   - Occupancy, 245
the Greeks, 15                      - Roman distinction between the Law
- meaning offictio, 25                      of Persons and the Law of Things,
- instances offictiones cited, 26           258
- the Responsa Prudentium described,    - influence of Roman classifications,
33                                      259
- judicial functions of the Magistrates    Co-ownership of property regarded
of Republican Rome, 36                  by the mature Roman Law as ex- reasons why the Roman Law was not         ceptional and momentary, 261
popularised, 36                     -the Gens of the Romans compared
-sources of the characteristic excel-      with an Indian Village Commulence of the Roman Law, 38              nity, 264
- decline and extinction of the Re-     - Res Mancipi, and Res nec Mancipi,
spouses, 40, 41                         274, 277
- the Prsetorian Edict, 41, 57, 63, 66  - Mancipation, 278
-the Leges Cornelise, 41, 42           - Usucapion, or Prescription, 284
- later jurisconsults, 41               - the Cessio in Jure, 289
-remarks on the Statute Law of the      - distinction  between Property and
Romans, 41-43                           Possession, 290
-and on the Equity of the Romans,      - Roman and Barbarian Law. 296
44, 45                              -- Roman Contracts, 314 et seq.
-golden age of Roman jurisprudence,     - the Four Contracts, 325
55                                  -connection between    Theology and
- Roman Equity, 58, 67                      Roman Law, 355
- features common to both English and   - causes of improvement in Roman
Roman Equity, 68 et seq.                Law, 361
- International Law largely indebted    - Roman Law in the Eastern Empire,
to Roman Law, 97                        363
the Patria Potestas of the Roman       - Civil Wrongs of the Roman Law. 370
Law, 137 et seq.                    - the Legis Actio Sacramenti, 375
- Agnatic and Cognatic Relationship,    - old Roman Criminal Jurisprudence,
146                                     382
- Perpetual Tutelage of Women, 153      - extreme multiplicity of Roman cri- Roman Marriage, 154, 155                  minal tribunals, 390
- Guardianship of male Orphans, 160     - results traceable to the Qusestiones,
- Law of Persons-Master and Slave,          391
162                                Romans, causes of the rapid progress of
- Testamentary Law, 172 et seq.           the Stoical philosophy amongstthe, 55




INDEX.                               413
ROMANS                            STOIC PHILOSOPHY
Romans, their progress in legal improve-  into harmony with Progressive Soment, 57                                 cieties, 25
Rome, immigration of foreigners into,  Societies, perils of early, 75
46, 47                              - primitive, 128
- exclusion of, under the early Repub-  - early moral doctrines, 127
lie, 46                           - early political ideas, 128
-See of, origin of the tendency to    - fiction of Adoption, 130
attribute secular superiority to the,  - foundation of aristocracies, 132
108                               - principle of Local Contiguity, 132
- decline of ecclesiastical influence in  - the ancient Family, 133
international questions, 110      - the Patria Potestas, 133
-early political ideas of, 130         - agnatic and cognatic relationships,
Rousseau, J. J., influence of his writings,  146
87                                  - Guardianship of Women, 153
- his doctrine of an original Social  - ancient Roman Marriage, 154
Compact, 308, 309                 - Master and Slave, 162
Russian villages, Co-ownership of the  - uniformity of movement of the prooccupiers of, 266                        gressive societies, 168
- disintegration of the Family, 169
-movement of societies from status to
SACRA, or Family Rites, of the            contract, 170
Romans, 6, 7, 27, 191, 192        - Universal Succession, 177, 179, 181
-of the Hindoos, 192                  -primitive society and universal sucSacramental Action of the Ancient Ro-      cession, 183
mans, 48                            - the ancient family a corporation, 184
Salic Law, origin of the, 157         Society in primitive times not a collecSavigny, on Possession and Property,    tion of individuals, but an aggregation
290, 291                              of families, 126
- his aphorism on the Origin of Pro-  Solon, Attic code of, 16
perty, 254                        "Sophismes Anarchiques " of Dumont,
Scevola, Q. MIucius, his Manual of the  remarks on, 92
Civil Law, 40, 41                   Sovereign, origin of the doctrine that
Scandinavian nations, their laws respect-  the monarch is the fountain ofj ustice,
ing the Perpetual Tutelage of Women,  396
153, 159                            Sovereignty, territorial, proposition of
Sclavonian laws respecting the property  International Law on, 102, 103
of families, 268                    - Tribe-sovereignty, 104
Sealing, first appearance of, in jurispru-  - Charlemagne and universal domidence, as a mode of authentication,     nion, 106
210                                 - Territorial sovereignty an offshoot
Sin, mortal and venial, casuistical dis-  of feudalism, 107
tinction between, 351               - the See of Rome, 108
Sins known to primitive jurisprudence,  - Hugh Capet, 108
371                                 - the Anglo-Saxon princes, 108
Slavery, ancient, 162                 - Naples, Spain, and Italy, 108
- under the Romans, 163               - Venice, 109
- in the United States of America, 163  - points of junction between territorial
Socage, English law of, 232               sovereignty and modern public law,
Social Compact, Rousseau's doctrine of    112
an original, 308, 309, 345          Spain, territorial sovereignty of the mo- Dr. Whewell quoted, 347               narchs of, 108
Societies, stationary and progressive, 22  Status, movement of societies from, to
-difference between stationary and      contract, 170
progressive societies, 23         Statute Law of the Romans, 41, 45
- agencies by which Law is brought    Stoic philosophy, principles of the, 54




414                               INDEX.
STOIC PHILOSOPHY                          TESTAMENTS
Stoic philosophy, its rapid progress in  Succession, ancient Wills not written, 207
Roman society, 55                     - remarks on the expression Emptor
- alliance of the Roman lawyers with        Familise, 208
the Stoics, 55                     - the Prsetorian Will, 209
Succession, rules of, according to the  - the Bonorum Possessio, and the BoHindoo Customary law, 7                norum Possessor, 211
Testamentary, 171                    - improvements in the old Will, 212,
- early history, 171                        213
- influence of the Church in enforcing  - ancient and modern ideas respecting
the sanctity of Wills, 173              Wills and Successors, 215
- English law of, 173                   - Disinherison of Children, 215
- qualities  necessarily  attached to   - the age of Wills coeval with that
Wills, 174                              of Feudalism. 224
- natural rights oftestation, 175       - introduction of the principle of Dower,
- restraints imposed by the CodeNapo-       224
leon, 176                          - rights of Heirs and Co-heirs under
- nature of a Will, 177                     the Roman Law, 227
- rights and duties of universal suc-   - intestate, 195
cessor, 177                        - ancient Roman law of, 199, 218
- usual Roman definition of an In-      - the Justinian   scale of Intestate
heritance, 181                          Succession, 219
- difference between modern testa-      - order of Intestate Succession among
mentary jurisprudence and the an-       the Romans, 220
cient law of Rome, 182             - horror of intestacy felt by the Ro- the Family regarded as a Corpora-         mans, 222, 323
tion, 184                          - rights of all the children of the de- old Roman Law of Inheritance and          ceased under the Roman Law, 227
its notion of a Will, 189          - Universal, 177, 189
- ancient objects of Wills, 190         - in what it consists, 179
-  Sacra, or Family Rites, of the Ro-   - the universal successor, 181
mans, 191                          -formula of old Roman investiture
- and of the Hindoos, 191, 192              referred to, 190
-  the invention of Wills due to the    Suttee of the Hindoos, 193
Romans, 194                        Sylla, L. Cornelius, his improvements in
- Roman ideas of Succession, 195          the Roman Law, 41, 42
- Testamentary Succession less ancient
than Intestate Succession, 195
- primitive operation of Wills, 196     TABLES, the Twelve Decemviral, 1,
- Wills of the ancient Germans, 196     1     2, 14, 33
- Jewish and Bengalee Wills, 197       - collections of opinions interpretative
- mode of execution of ancient Ro-          of the, 33
man Wills, 199                     - their legalisation of Plebeian Wills,
- description of ancient Roman Wills,       202
201                                - Law of the Twelve Tables respecting
-influence of ancient Plebeian Wills on     Testamentary Dispositions, 216
the civilisation of the modernworld,  Tablets, laws engraven on, 14
203                                Tacitus, value of his " Germany " as a
-the Mancipation, 204                     record of primitive history, 120
- relation of Wills to conveyances,     - suspicions as to its fidelity, 121
204                                Tarquins, change in the administration
- the Testament per as et libram, 204,   of the law after the expulsion of the,
213, 214                             61, 62
- consequence of this relation of Testa-  Tenancy, Roman system of, 229
ments to Conveyances, 206          Testaments. See Succession, Testamen- remedies, 207                          tary.




INDEX.                                 415
THEFT                                   ZEUS
Theft, ancient Roman Law of, 307, 308   Village Communities of India, 260, 262
379                                     et seq.
- modern breaches of trust, 307         Visigoths, the, referred to, 104
Themis and Themistes of the Greek       Voltaire, referred to, 87
Homeric poems, 4, 5, 125
Theology, connection between it and
Roman Law, 355                        TTARFARE, ancientforms of, 247
Thirty Years' War, influence of the      VV   Wehrgeld, the, of Germany, 281
horrors of the, on the success of the  Whewell, Dr., on original Social Corntreatise " De Jure Belli et Pacis " of  pact, quoted, 347
Grotius, 111                         - his view of Moral Philosophy, 348
Torts, law of, 370                      Widow's share of her husband's estate,
Tradition of property amongst the Ro-       224
mans, 278                            - the reipus, or fine leviable on the re- practical effect of a Mancipation         marriage of a widow in Germany,
given to a Tradition, 278               281
Transfer of property, ancient modes of,  Wills, influence of the Sacra Gentilicia
276                                    on the law of, 6, 7
Troglodytes, the, 311                   - See Succession, Testamentary
Turkey, rule of succession to the throne  Women, laws respecting the status of,
of, 242                                 152
- Roman law of the Perpetual Tutelage of, 153
TTLPIAN, his attempt to distinguish    - amongst the Hindoos, 153
between the Jus Naturale and the    - and amongst the Scandinavians, 155
Jus Gentium, 52                      - Guardianship of Women under the
Universitatis juris, in what it consists,   Roman Law, 153
178                                  - tutelage of, amongst the Hindoos,
Usucapion, principle of Roman Law           153
known as, 212                        - tutelage of, amongst the Scandina- history of, 284                           vians, 153
Usus, or lower form of civil marriage of  - ancient Roman Marriage, 154
the ancient Romans, 154              - later Roman Marriage, 155
- special Proprietorship created by
the Court of Chancery for, 295
ITANDALS, the, referred to, 104
V     Venetians, their lapse from tribe
sovereignty to territorial sovereignty,  [EUS, not a lawmaker, but a judge,
109                                  ZJ      n 4, 5
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8                       LIST OF WORKS
CHURCH (THE) & THE AGE. Essays on the Principles and
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24                      LIST OF WORKS
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26                      LIST OF WORKS
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28                      LIST OF WORKS
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PUBLISHED BY MR. MURRAY.                        29
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