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Title: Ancient Law
Its Connection to the History of Early Society
Author: Sir Henry James Sumner Maine
Release Date: October 7, 2007 [EBook #22910]
Language: English
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HISTORY
ANCIENT LAW
BY SIR HENRY JAMES SUMNER MAINE
INTRODUCTION BY PROF. J. H. MORGAN
SIR HENRY JAMES SUMNER MAINE, the
son of a doctor, born 1822 in India. Educated
at Christ's Hospital and Pembroke College,
Cambridge. In 1847 professor of civil law
at Cambridge; 1850, called to the Bar.
Member of Indian Council for seven years.
Died at Cannes, 1888.
ANCIENT LAW
[Illustration]
SIR HENRY MAINE
LONDON: J. M. DENT & SONS LTD.
NEW YORK: E. P. DUTTON & CO. INC.
_All rights reserved
Made in Great Britain
at The Temple Press Letchworth
and decorated by Eric Ravilious
for
J. M. Dent & Sons Ltd.
Aldine House Bedford St. London
First Published in this Edition 1917
Reprinted 1927, 1931, 1936_
INTRODUCTION
No one who is interested in the growth of human ideas or the origins
of human society can afford to neglect Maine's _Ancient Law_.
Published some fifty-six years ago it immediately took rank as a
classic, and its epoch-making influence may not unfitly be compared to
that exercised by Darwin's _Origin of Species_. The revolution
effected by the latter in the study of biology was hardly more
remarkable than that effected by Maine's brilliant treatise in the
study of early institutions. Well does one of Maine's latest and most
learned commentators say of his work that "he did nothing less than
create the natural history of law." This is only another way of saying
that he demonstrated that our legal conceptions--using that term in
its largest sense to include social and political institutions--are as
much the product of historical development as biological organisms are
the outcome of evolution. This was a new departure, inasmuch as the
school of jurists, represented by Bentham and Austin, and of political
philosophers, headed by Hobbes, Locke, and their nineteenth-century
disciples, had approached the study of law and political society
almost entirely from an unhistoric point of view and had substituted
dogmatism for historical investigation. They had read history, so far
as they troubled to read it at all, "backwards," and had invested
early man and early society with conceptions which, as a matter of
fact, are themselves historical products. The jurists, for example,
had in their analysis of legal sovereignty postulated the commands of
a supreme lawgiver by simply ignoring the fact that, in point of time,
custom precedes legislation and that early law is, to use Maine's own
phrase, "a habit" and not a conscious exercise of the volition of a
lawgiver or a legislature. The political philosophers, similarly, had
sought the origin of political society in a "state of nature"--humane,
according to Locke and Rousseau, barbarous, according to Hobbes--in
which men freely subscribed to an "original contract" whereby each
submitted to the will of all. It was not difficult to show, as Maine
has done, that contract--_i.e._ the recognition of a mutual agreement
as binding upon the parties who make it--is a conception which comes
very late to the human mind. But Maine's work covers much wider ground
than this. It may be summed up by saying that he shows that early
society, so far as we have any recognisable legal traces of it, begins
with the group, not with the individual.
This group was, according to Maine's theory, the Family--that is to
say the Family as resting upon the patriarchal power of the father to
whom all its members, wife, sons, daughters, and slaves, were
absolutely subject. This, the central feature of Maine's speculation,
is worked out with infinite suggestiveness and great felicity of style
in chapter V. ("Primitive Society and Ancient Law") of the present
work, and his chief illustrations are sought in the history of Roman
law. The topics of the other chapters are selected largely with a view
to supplying confirmation of the theory in question and, as we shall
see in a moment, Maine's later works do but serve to carry the train
of reasoning a step further by the use of the Comparative Method in
invoking evidence from other sources, notably from Irish and Hindu
Law. Let us, however, confine ourselves for the moment to "Ancient
Law." Maine works out the implications of his theory by showing that
it, and it alone, can serve to explain such features of early Roman
law as Agnation, _i.e._ the tracing of descent exclusively through
males, and Adoption, _i.e._ the preservation of the family against the
extinction of male heirs. The perpetual tutelage of women is the
consequence of this position. Moreover, all the members of the family,
except its head, are in a condition best described as _status_: they
have no power to acquire property, or to bequeath it, or to enter into
contracts in relation to it. The traces of this state of society are
clearly visible in the pages of that classical text-book of Roman Law,
the _Institutes_ of Justinian,[1] compiled in the sixth century A.D.,
though equally visible is the disintegration wrought in it by the
reforming activity of the praetor's edicts. That reformation followed
the course of a gradual emancipation of the members of the family,
except those under age, from the despotic authority of the father.
This gradual substitution of the Individual for the Family was
effected in a variety of ways, but in none more conspicuously than by
the development of the idea of contract, _i.e._ of the capacity of the
individual to enter into independent agreements with strangers to his
family-group by which he was legally bound--an historical process
which Maine sums up in his famous aphorism that the movement of
progressive societies has hitherto been a movement from Status to
Contract.
In the chapters on the early history of Wills, Property, and Contract,
Maine supports his theory by showing that it is the key which unlocks
many, if not all, of the problems which those topics present. The
chapter on Wills--particularly the passage in which he explains what
is meant by Universal Succession--is a brilliant example of Maine's
analytic power. He shows that a Will--in the sense of a secret and
revocable disposition of property only taking effect after the death
of the testator--is a conception unknown to early law, and that it
makes its first appearance as a means of transmitting the exercise of
domestic sovereignty, the transfer of the property being only a
subsidiary feature; wills only being permitted, in early times, in
cases where there was likely to be a failure of proper heirs. The
subsequent popularity of wills, and the indulgence with which the law
came to regard them, were due to a desire to correct the rigidity of
the Patria Potestas, as reflected in the law of intestate succession,
by giving free scope to natural affection. In other words, the
conception of relationship as reckoned only through males, and as
resting on the continuance of the children within their father's
power, gave way, through the instrumentality of the will, to the more
modern and more natural conception of relationship.
In the chapter on Property Maine again shows that the theory of its
origin in occupancy is too individualistic and that not separate
ownership but joint ownership is the really archaic institution. The
father was in some sense (we must avoid importing modern terms) the
trustee of the joint property of the family. Here Maine makes an
excursion into the fields of the Early Village Community, and has,
too, to look elsewhere than to Rome, where the village community had
already been transformed by coalescence into the city-state. He
therefore seeks his examples from India and points to the Indian
village as an example of the expansion of the family into a larger
group of co-proprietors, larger but still bearing traces of its origin
to the patriarchal power. And, to quote his own words, "the most
important passage in the history of Private Property is its gradual
separation from the co-ownership of kinsmen." The chapter on Contract,
although it contains some of Maine's most suggestive writing, and the
chapter on Delict and Crime, have a less direct bearing on his main
thesis except in so far as they go to show that the reason why there
is so little in early law of what we call civil, as distinct from
criminal, law, and in particular of the Law of Contract, is to be
found in the fact that, in the infancy of society, the Law of Persons,
and with it the law of civil rights, is merged in the common
subjection to Paternal Power.
Such, putting it in the simplest possible language, is the main
argument of _Ancient Law_. The exigencies of space and of simplicity
compel me to pass by, to a large extent, most of the other topics with
which Maine deals--the place of custom, code, and fiction in the
development of early law, the affiliation of international Law to the
_Jus Gentium_ and the Law of Nature, the origins of feudalism and of
primogeniture, the early history of delict and crime, and that most
remarkable and profound passage in which Maine shows the heavy debt of
the various sciences to Roman law and the influence which it has
exerted on the vocabulary of political science, the concepts of moral
philosophy, and the doctrines of theology. I must confine myself to
two questions: how far did Maine develop or modify in his subsequent
writings the main thesis of _Ancient Law_? to what extent has this
thesis stood the test of the criticism and research of others? As
regards the first point, it is to be remembered that _Ancient Law_ is
but the first, though doubtless the most important, of a whole series
of works by its author on the subject of early law. It was followed at
intervals by three volumes: _Village Communities in the East and
West_, _Early Institutions_, and _Early Law and_ _Custom_. In the
first of these he dealt with a subject which has excited an enormous
degree of attention and not a little controversy among English,
French, German, and Russian scholars,[2] amounting as it does to
nothing less than an investigation into the origin of private property
in land. The question has been put in various forms: did it commence
with joint (or, as some would put it, less justifiably, communal or
corporate) ownership or with individual ownership, and again was the
village community free or servile? It is now pretty generally
recognised that there was more than one type, though common
cultivation was doubtless a feature of them all, and even in India
there were at least two types, of which the one presenting several, as
opposed to communal, ownership is not the less ancient. But it may
well be that, as Maitland so often pointed out, much of the
controversy has been literally an anachronism; that is to say, that
nineteenth-century men have been asking the Early Ages questions which
they could not answer and reading back into early history distinctions
which are themselves historical products. Ownership is itself a late
abstraction developed out of use. We may say with some certainty that
family "ownership" preceded individual ownership, but in what sense
there was communal ownership by a whole village it is not so easy to
say.
Maine was on surer ground when, as in his studies of Irish and Hindu
law, he confined himself to the more immediate circle of the family
group. In his _Early Institutions_ he subjects the Brehon Laws of
early Ireland to a suggestive examination as presenting an example of
Celtic law largely unaffected by Roman influences. He there shows, as
he has shown in _Ancient Law_, that in early times the only social
brotherhood recognised was that of kinship, and that almost every form
of social organisation, tribe, guild, and religious fraternity, was
conceived of under a similitude of it. Feudalism converted the village
community, based on a real or assumed consanguinity of its members,
into the fief in which the relations of tenant and lord were those of
contract, while those of the unfree tenant rested on status. In his
_Early Law and Custom_ he pursues much the same theme by an
examination of Hindu Law as presenting a peculiarly close implication
of early law with religion. Here he devotes his attention chiefly to
Ancestor-worship, a subject which about this time had engaged the
attention, as regards its Greek and Roman forms, of that brilliant
Frenchman, Fustel de Coulanges, whose monograph _La Cité Antique_ is
now a classic. As is well known, the right of inheriting a dead man's
property and the duty of performing his obsequies are co-relative to
this day in Hindu law, and his investigation of this subject brings
Maine back to the subject of the Patriarchal Power. He points out that
both worshipper and the object of worship were exclusively males, and
concludes that it was the power of the father which generated the
practice of worshipping him, while this practice in turn, by the
gradual admission of women to participate in the ceremonies, gradually
acted as a solvent upon the power itself. The necessity of finding
some one to perform these rites, on failure of direct male heirs,
marked the beginning of the recognition of a right in women to
inherit. The conception of the family becomes less intense and more
extensive. These discussions brought Maine, in chapter VII. of _Early
Law and Custom_, to reconsider the main theory of _Ancient Law_ in the
light of the criticism to which it had been exposed, and every reader
of _Ancient Law_ who desires to understand Maine's exact position in
regard to the scope of his generalisations should read for himself the
chapter in the later work entitled "Theories of Primitive Society."
His theory of the patriarchal power had been criticised by two able
and industrious anthropologists, M'Lennan and Morgan, who, by their
investigation of "survivals" among barbarous tribes in our own day,
had arrived at the conclusion that, broadly speaking, the normal
process through which society had passed was not patriarchal but
"matriarchal," _i.e._ understanding by that term a system in which
descent is traced through females. It would take up far too much space
to enter into this controversy in detail. It is sufficient to say that
the counter-theory rested on the assumption that society originated
not in families, based on the authority of the father and relationship
through him, but in promiscuous hordes among whom the only certain
fact, and, consequently, the only recognised basis of relationship,
was maternity. Maine's answer to this was that his generalisations as
to the prevalence of the patriarchal power were confined to
Indo-European races, and that he did not pretend to dogmatise about
other races, also that he was dealing not with all societies but all
that had any permanence. He argues that the promiscuous horde, where
and when it is found, is to be explained as an abnormal case of
retrogression due to a fortuitous scarcity of females resulting in
polyandry, and he opposes to the theory of its predominance the
potency of sexual jealousy which might serve as only another name for
the patriarchal power. On the whole the better opinion is certainly
with Maine. His theory, at any rate, alone accords with a view of
society so soon as it is seen to possess any degree of civilisation
and social cohesion.
It will be seen that Maine's work, like that of most great thinkers,
presents a singular coherence and intellectual elegance. It is
distinguished also by an extraordinary wide range of vision. He lays
under contribution with equal felicity and suggestiveness the Old
Testament, the Homeric poems, the Latin dramatists, the laws of the
Barbarians, the sacerdotal laws of the Hindus, the oracles of the
Brehon caste, and the writings of the Roman jurists. In other words,
he was a master of the Comparative Method. Few writers have thrown so
much light on the development of the human mind in its social
relations. We know now--a hundred disciples have followed in Maine's
footsteps and applied his teaching--how slow is the growth of the
human intellect in these matters, with what painful steps man learns
to generalise, how convulsively he clings in the infancy of
civilisation to the formal, the material, the realistic aspects of
things, how late he develops such abstractions as "the State." In all
this Maine first showed the way. As Sir Frederick Pollock has
admirably put it--
Nowadays it may be said that "all have got the seed,"
but this is no justification for forgetting who first
cleared and sowed the ground. We may till fields that
the master left untouched, and one man will bring a
better ox to yoke to the plough, and another a worse;
but it is the master's plough still.
We may conclude with some remarks on Maine's views of the
contemporary problems of political society. Maine was what, for want
of a better term, may be called a Conservative, and, indeed, it may be
doubted whether, with the single exception of Burke, any English
writer has done more to provide English Conservatives with reasons for
the faith that is in them. He has set forth his views in a collection
of polemical essays under the title of _Popular Government_, which
were given to the world in book form in 1885. He viewed the advent of
Democracy with more distrust than alarm--he appears to have thought it
a form of government which could not last--and he has an unerring eye
for its weaknesses.[3] Indeed, his remarks on the facility with which
Democracy yields itself to manipulation by wire-pullers, newspapers,
and demagogues, have found not a little confirmation in such studies
of the actual working of democratic government as M. Ostrogorski's
_Democracy and the Organisation of Political Parties_. Maine
emphasised the tyranny of majorities, the enslavement of untutored
minds by political catchwords, their susceptibility to "suggestion,"
their readiness to adopt vicarious opinion in preference to an
intellectual exercise of their own volition. It is not surprising that
the writer who had subjected the theories of the Social Contract to
such merciless criticism sighed for a scientific analysis of political
terms as the first step to clear thinking about politics. Here he was
on strong ground, but for such an analysis we have yet to wait.[4] He
seems to have placed his hopes in the adoption of some kind of written
constitution which, like the American prototype, would safeguard us
from fundamental changes by the caprice of a single assembly. But this
is not the place to pursue such highly debateable matters. Enough if
we say that the man who wishes to serve an apprenticeship to an
intelligent understanding of the political society of the present
cannot do better than begin by a careful study of Maine's researches
into the political society of the past.
J.H. MORGAN.
_Note._--The reader who desires to study Maine in the
light of modern criticism is recommended to read Sir F.
Pollock's "Notes on Maine's _Ancient Law_" (published
by John Murray at 2_s._ 6_d._, or, with the text, at
5_s._). The best short study of Maine with which I am
acquainted is the article by Professor Vinogradoff in
the _Law Quarterly Review_ for April 1904. The field of
research covered by Maine in his various writings is so
vast that it is impossible to refer the reader, except
at great length, to anything like an adequate list of
later books on the subjects of his investigation. In
addition to the works on the Village Community
mentioned in a previous footnote, I may, however, refer
the beginner to Mr. Edward Jenks' little book on _The
History of Politics_ in Dent's Primers, to Professor
Ashley's translation of a fragment of Fustel de
Coulanges under the title of _The Origin of Property in
Land_, and to Sir Frederick Pollock's brilliant little
book, _The Expansion of the Common Law_. The reader is
also recommended to study Mr. H.A.L. Fisher's succinct
survey of the contributions of Maitland to legal
history under the title of _F.W. Maitland; an
Appreciation_ (Cambridge University Press). One of the
most brilliant and ingenious studies of the origins of
European civilisation is to be found in the work of the
great German jurist, Ihering, _Die Vorgeschichte der
Indo-Europder_, translated into English under the title
of _The Early History of the Indo-European Races_
(Sonnenschein, 1897).
[1] The reader who desires to pursue the subject by
reference to one of Maine's chief authorities is
recommended to read the translation of the _Institutes_
by Sandars.
[2] English literature on the subject is best studied in
Maitland's _Domesday Book and Beyond_, Vinogradoff's
_The Growth of the Manor_ and _Villeinage in England_
(with an excellent historical introduction), and
Seebohm's _English Village Community_.
[3] Witness the characteristic sentence: "On the whole
they [_i.e._ the studies of earlier society] suggest
that the differences which, after ages of change,
separate the civilised man from savage or barbarian, are
not so great as the vulgar opinion would have them....
Like the savage, he is a man of party with a newspaper
for a totem ... and like a savage he is apt to make of
his totem his God."
[4] Something of the kind was done many years ago by Sir
George Cornewall Lewis in his little book on the _Use
and Abuse of Political Terms_. I have attempted to carry
the task a step farther in an article which appeared in
the form of a review of Lord Morley's "History and
Politics" in the _Nineteenth Century_ for March 1913.
BIBLIOGRAPHY
Navis ornate atque armata in aquam deducitur (Prize Poem), 1842; The
Birth of the Prince of Wales (Prize Poem), 1842; Cæsar ad Rubiconem
constitit (Prize Poem), 1842; Memoir of H.F. Hallam, 1851; Roman Law
and Legal Education (Essay), 1856; Ancient Law: its Connection with
the Early History of Society and its Relation to Modern Ideas, 1861;
Short Essays and Reviews on the Educational Policy of the Government
of India, 1866; Village Communities in the East and West (Lectures),
1871; The Early History of the Property of Married Women as collected
from Roman and Hindoo Law (Lecture), 1873; The Effects of Observation
of India on Modern European Thought (Lecture), 1875; Lectures on the
Early History of Institutions, 1875; Village Communities, etc.; third
ed. with other Lectures and Addresses, 1876; Dissertations on Early
Law and Custom (selected from Lectures), 1883; Popular Government
(four Essays), 1885; India [1837-1887] (in "The Reign of Queen
Victoria," ed. by Thos. Humphry Ward, vol. i.), 1887; The Whewell
Lectures: International Law, 1887, 1888; Ancient Law (ed. with
introduction and notes by Sir Frederick Pollock), 1906; Ancient Law
(Allahabad ed., with introduction by K.C. Banerji), 1912.
Contributions to: "Morning Chronicle," 1851; "Cornhill Magazine,"
1871; "Quarterly Review," 1886; "Saturday Review," and "St. James's
Gazette."
A brief memoir of the life of Sir Henry Maine, by Sir M.E. Grant Duff;
with some of his Indian speeches and minutes, selected by Whitley
Stokes, 1892.
PREFACE
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 earliest portions the
traces of the most remote antiquity and supplying from its later rules
the staple of the civil institutions by which modern society is even
now controlled. The necessity of taking the Roman law as a typical
system has compelled the author to draw from it what may appear a
disproportionate number of his illustrations; but it has not been his
intention to write a treatise on Roman jurisprudence, and he has as
much as possible avoided all discussions which might 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 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
CHAP. PAGE
I. ANCIENT CODES 1
II. LEGAL FICTIONS 13
III. LAW OF NATURE AND EQUITY 26
IV. THE MODERN HISTORY OF THE LAW OF NATURE 43
V. PRIMITIVE SOCIETY AND ANCIENT LAW 67
VI. THE EARLY HISTORY OF TESTAMENTARY SUCCESSION 101
VII. ANCIENT AND MODERN IDEAS RESPECTING WILLS
AND SUCCESSIONS 127
VIII. THE EARLY HISTORY OF PROPERTY 144
IX. THE EARLY HISTORY OF CONTRACT 179
X. THE EARLY HISTORY OF DELICT AND CRIME 216
INDEX 235
CHAPTER I
ANCIENT CODES
The most celebrated system of jurisprudence known to the world begins,
as it ends, with a Code. From the commencement to the close of 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. 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
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.
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. _Themistes_, Themises, the plural of _Themis_, are the
awards themselves, divinely dictated to the judge. Kings are spoken of
as if they had a store of "Themistes" ready to hand for use; but it
must be distinctly understood that they are not laws, but judgments.
"Zeus, or the human king on earth," says Mr. Grote, in his History of
Greece, "is not a lawmaker, but a judge." He 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 _à 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."
[Greek: Nomos], 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 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 Menu, 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 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
compound of the elements which Bentham determined. It is certain
that, in the infancy of mankind, no sort of legislature, not 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, 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 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 Lacedæmon, a
mere functionary, as the King Archon at Athens, or a mere formal
hierophant, like the _Rex Sacrificulus_ at Rome. In Greece, Italy, and
Asia Minor, the dominant orders seem to have universally consisted of
a number of 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 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
difference, however, that they do not appear to have pretended to
direct inspiration for each sentence. The connection of ideas which
caused the judgments of the patriarchal chieftain to be attributed to
superhuman dictation still shows itself here and there in the claim of
a divine origin for the entire body of rules, or for certain parts of
it, but the progress of thought no longer permits the solution of
particular disputes to be explained by supposing an extra-human
interposition. What the juristical oligarchy now claims is to
monopolise the _knowledge_ of the laws, to have the exclusive
possession of the principles by which quarrels are decided. We have in
fact arrived at the epoch of Customary Law. Customs or Observances now
exist as a substantive aggregate, and are assumed to be precisely
known to the aristocratic order or caste. Our authorities leave us no
doubt that the trust lodged with the oligarchy was sometimes abused,
but it certainly ought not to be regarded as a mere usurpation or
engine of tyranny. Before the invention of writing, and during the
infancy of the art, an aristocracy invested with judicial privileges
formed the only expedient by which accurate preservation of the
customs of the race or tribe could be at all approximated to. Their
genuineness was, so far as possible, insured by confiding them to the
recollection of a limited portion of the community.
The epoch of Customary Law, and of its custody by a privileged order,
is a very remarkable one. The condition of the 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 case-law is
sometimes spoken of as unwritten, and there are some English theorists
who assure us that if a code of English jurisprudence were prepared we
should be turning unwritten law into written--a conversion, as they
insist, if not of doubtful policy, at all events of the greatest
seriousness. Now, it is quite true that there was once a period at
which the 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 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 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 depositary 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
classifications, 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, 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
community--was not so much whether there should be a code at all, for
the majority of ancient societies seem to have obtained them sooner or
later, and, but for the great interruption in the history of
jurisprudence created by 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 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 Menu, 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 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 Menu should pretend to the highest
antiquity and claim to have emanated in their complete form from the
Deity. Menu, 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 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 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 the 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.
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 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 that we are concerned, and nothing is more remarkable than
their extreme fewness. In spite of overwhelming evidence, it is most
difficult for a citizen of western Europe to bring thoroughly home to
himself the truth that the civilisation which surrounds him is a rare
exception in the history of the world. The tone of thought common
among us, all our hopes, fears, and speculations, would be materially
affected, if we had vividly before us the relation of the progressive
races to the totality of human life. It is indisputable that much the
greatest part of mankind has never shown a particle of desire that its
civil institutions should be improved since the moment when external
completeness was first given to them by their embodiment in some
permanent record. One set of usages has occasionally been violently
overthrown and superseded by another; here and there a primitive code,
pretending to a supernatural origin, has been greatly extended, and
distorted into the most surprising forms, by the perversity of
sacerdotal commentators; but, except in a small 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 seems 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 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 advanced with respect to
the agencies by which Law is brought into harmony with society. These
instrumentalities seem to me to be three in number, Legal Fictions,
Equity, and Legislation. Their historical order is that in which I
have placed them. Sometimes two of them will be seen operating
together, and there are legal systems which have escaped the influence
of one or other of them. But I know of no instance in which the order
of their appearance has been changed or inverted. The early history of
one of them, Equity, is universally obscure, and 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 exercise 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
averment that the plaintiff was a Roman citizen, when in truth he was
a foreigner. The object of these "fictiones" was, of course, to give
jurisdiction, and they therefore strongly resembled the allegations
in the writs of the English Queen's Bench, and Exchequer, by which
those Courts contrived to usurp the jurisdiction of the Common
Pleas:--the allegation that the defendant was in custody of the king's
marshal, or that the plaintiff was the king's debtor, and could not
pay his debt by reason of the defendant's default. But I now employ
the expression "Legal Fiction" to signify any 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. 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. They have had their day, but it has long since gone by.
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 legal fictions are the
greatest of obstacles to symmetrical classification. The rule of law
remains sticking in the system, but it is a mere shell. It has been
long ago undermined, and a new rule hides itself under its cover.
Hence there is at once a difficulty in knowing whether the rule which
is actually operative should be classed in its true or in its apparent
place, and minds of different casts 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 Prætors 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 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 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-making_; they differ only in respect of the machinery by which
the new law is produced. That is perfectly true, and we must never
forget it; but it furnishes no reason why we should deprive ourselves
of so convenient a term as Legislation in the special sense.
Legislation and Equity are disjoined in the popular mind and in the
minds of most lawyers; and it will never do to neglect the distinction
between them, however conventional, when important practical
consequences follow from it.
It would be easy to select from almost any regularly developed body of
rules examples of _legal fictions_, which at once betray their true
character to the modern observer. In the two instances which I proceed
to consider, the nature of the expedient employed is not so readily
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
illustrate the wide diffusion of legal fictions, and the efficiency
with which they perform their two-fold office of transforming a system
of laws and 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. When a group of facts
come before an English Court for adjudication, the whole course of the
discussion between the judge and the advocate assumes that no question
is, or can be, raised which will call for the application of any
principles but old ones, or 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 has been
rendered and reported, we slide unconsciously or unavowedly into a new
language and a new train of thought. We now admit that the new
decision _has_ modified the law. The rules applicable have, to use the
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 nubibus_ 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 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 so 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 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 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 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 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 well-known oration of
Cicero, _Pro Muræna_, that the reverence of the commons for forensic
success was apt to be excessive rather than deficient.
We cannot doubt that the peculiarities which have been noted in the
instrumentality by which the development of the Roman law was first
effected, were the source of its characteristic excellence, its early
wealth in principles. The growth and exuberance of principle was
fostered, in part, by the competition among the expositors of the law,
an influence wholly unknown where there exists a Bench, the
depositaries intrusted by king or commonwealth with the prerogative
of justice. But the chief agency, no doubt, was the uncontrolled
multiplication of cases for legal decision. The state of facts which
caused genuine perplexity to a country 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 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. A still more 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 resembling a
Bench or Chamber of judges; and therefore no combination of facts
possessed any particular value more than another. When a difficulty
came for opinion before the jurisconsult, there was nothing to prevent
a person endowed with a nice perception of analogy from at once
proceeding to adduce and consider an entire class of supposed
questions with which a particular feature connected it. Whatever were
the practical advice given to the client, the _responsum_ treasured up
in the note-books of 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 _débris_ 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 assuming a form which must have been fatal to their
farther expansion. They are becoming systematised and reduced into
compendia. Q. Mucius Scævola, 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 Prætor, 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 Corneliæ_,
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 Prætor's Edict.
The _Equity_ of the Romans and the Prætorian 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 and dynasties. There seems
in the minds of the Romans to have been some association between the
enactment of a large body of statutes and the settlement of society
after a great civil commotion. Sylla signalised his reconstitution of
the republic by the Leges Corneliæ; Julius Cæsar contemplated vast
additions to the Statute Law; Augustus caused to be passed the
all-important group of Leges Juliæ; and among later emperors the most
active promulgators of constitutions are princes who, like
Constantine, have the concerns of the world to readjust. The true
period of Roman Statute Law does not begin till the establishment of
the empire. The enactments of the emperors, clothed at first in the
pretence of popular sanction, but afterwards emanating undisguisedly
from the imperial prerogative, extend in increasing 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 risen 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.
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_ 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 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 "which natural reason
appoints for all mankind" was the element which the Edict of the
Prætor 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
æquitas_) 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 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 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 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 the
different commonwealths surrounding Rome, the actual transfer,
tradition, or delivery of the article intended to be conveyed was a
part of the ceremonial in all of them. It was, for instance, a part,
though a subordinate part, in the Mancipation or conveyance peculiar
to Rome. Tradition, therefore, being in all probability the only
common ingredient in the modes of conveyance which the jurisconsults
had the means of observing, was set down as an institution Juris
Gentium, or rule of the Law common to all Nations. A vast number of
other observances were scrutinised with the same result. Some common
characteristic was discovered in all of them, which had a common
object, and this characteristic was classed in the Jus 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 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 had 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
procedure. The Jus Gentium was merely a system forced on his attention
by a political necessity. He loved it as little as he loved the
foreigners from whose institutions it was derived and for whose
benefit it was intended. A complete revolution in his ideas was
required before it could challenge his respect, but so complete was it
when it did occur, that the true reason why our modern estimate of the
Jus Gentium differs from that which has just been described, is that
both 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 between them
was entirely historical, and no distinction in essence could ever be
established between them. It is almost unnecessary to add that the
confusion between Jus Gentium, or Law common to all Nations, and
_international law_ is entirely modern. The classical expression for
international law is Jus Feciale or the law of negotiation and
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 [Greek: physis], 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, force, fire,
moisture, or generation. In its simplest and most ancient sense,
Nature is precisely the physical universe looked upon in this way as
the manifestation of a principle. Afterwards, the later Greek sects,
returning to a path from which the greatest intellects of Greece had
meanwhile strayed, added the _moral_ to the _physical_ world in the
conception of Nature. They extended the term till it embraced not
merely the visible creation, but the thoughts, observances, and
aspirations of mankind. Still, as before, it was not solely the moral
phenomena of human society which they understood by _Nature_, but
these phenomena considered as resolvable into some general and simple
laws.
Now, just as the oldest Greek theorists 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 self-denial and self-command would enable
the aspirant to observe. It is notorious that this proposition--live
according to nature--was the sum of the tenets of the famous Stoic
philosophy. Now on the subjugation 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 Cæsars, the most famous disciples to whom that
philosophy has given a rule of life. The long diffusion of these
doctrines among the members of a particular profession was sure to
affect the art which they practised and influenced. Several positions
which we find in the remains of the Roman jurisconsults are scarcely
intelligible, unless we use the Stoic tenets as our key; but at the
same time it is a serious, though a very common, error to measure the
influence of Stoicism on Roman law by counting up the number of legal
rules which can be 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 Prætor in framing an Edictal jurisprudence on the
principles of the Jus Gentium was gradually restoring a type from
which law had only departed to deteriorate. The inference from this
belief was immediate, that it was the Prætor'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 ground plan of the system had been
sketched long before the imperial reforms were effected.
What was the exact point of contact between the old Jus Gentium and
the Law of Nature? I think that they touch and blend through Æquitas,
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 Æquitas is the equivalent of the
Greek [Greek: isotês], _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 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 "æquus" carries with it more distinctly
than the Greek "[Greek: isos]" 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" and Things "nec Mancipi." The neglect of demarcations and
boundaries seems to me, therefore, the feature of the Jus Gentium
which was depicted in Æquitas. I imagine that the word was at first a
mere description of that constant _levelling_ or removal of
irregularities which went on wherever the prætorian 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 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 Æquitas was understood to convey
an allusion to the Greek theory, associations which grew out of the
Greek notion of [Greek: isotês] 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
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 Prætor, 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 as
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 law,
if the Prætor had not undertaken to decide them, and he must soon
have addressed himself to the more critical disputes which in the
extension of commerce arose between Roman subjects and avowed
foreigners. The great increase of such cases in the Roman Courts about
the period of the first Punic War is marked by the appointment of a
special Prætor, known subsequently as the Prætor 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 Prætor 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 Prætor's proclamation, thus lengthened by a new
portion every year, obtained the name of the Edictum Perpetuum, that
is, the _continuous_ or _unbroken_ edict. The immense length to which
it extended, together perhaps with some distaste for its necessarily
disorderly texture, caused the practice of increasing it to be stopped
in the year of Salvius Julianus, who occupied the magistracy in the
reign of the Emperor Hadrian. The edict of that Prætor 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 Prætor were restrained? How was
authority so little definite 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 Prætor, 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 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 Prætor 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
prætorship, 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 this 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 Prætor, 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 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 Prætor 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 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 Prætor 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 Prætor'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 supplied 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 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
centuries--not of the present--that they have received nearly as much
application as they are capable of, and that though of course they do
not differ largely from the ethical creed of our own day, they are not
necessarily on a level with it. The imperfect theories of the subject
which are commonly adopted have generated errors of opposite sorts.
Many writers of treatises on Equity, struck with the completeness of
the system in its present state, commit themselves expressly or
implicitly to the paradoxical assertion that the founders of the
chancery jurisprudence contemplated its present fixity of form when
they were settling its first bases. Others, again, complain--and this
is a grievance frequently observed upon in forensic arguments--that
the moral rules enforced by the Court of Chancery fall short of the
ethical standard of the present day. They would have each Lord
Chancellor perform precisely the same office for the jurisprudence
which he finds ready to his hand, which was performed for the old
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 English and Roman Equity is
the falsehood of the assumptions upon which the claim of the equitable
to superiority over the legal rule is originally defended. Nothing is
more distasteful to men, either as individuals or as masses, than the
admission of their moral progress as a substantive reality. This
unwillingness shows itself, as regards individuals, in the exaggerated
respect which is ordinarily paid to the doubtful virtue of
consistency. The movement of the collective opinion of a whole society
is too palpable to be ignored, and is generally too visible 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 Prætor, 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 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 tenour 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.
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 characterised 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 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 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 nobility 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 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 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 exempted by a
marvellous fate from this calamity, and grafts from these stocks have
fertilised a few modern societies, but it is still true that, over the
larger part of the world, the perfection of law has always been
considered as consisting in adherence to the ground plan supposed to
have been marked out by the original legislator. If intellect has in
such cases been exercised on jurisprudence, it has uniformly prided
itself on the subtle perversity of the conclusions it could build on
ancient texts, without discoverable departure 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
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 law-reformers who maintained a steady pursuit of the general good
of the community. It would be a mistake, however, to suppose it a
conscious anticipation of Bentham's principles. The happiness of
mankind is, no doubt, sometimes assigned, both in the popular and in
the legal literature of the Romans, as the proper object of remedial
legislation, but it is very remarkable how few and faint are the
testimonies to this principle compared with the tributes which are
constantly offered to the overshadowing claims of the Law of Nature.
It was not to anything resembling philanthropy, but to their sense of
simplicity and harmony--of what they significantly termed
"elegance"--that the Roman jurisconsults freely surrendered
themselves. The coincidence of their labours with those which a more
precise philosophy would have counselled has been part of the good
fortune of mankind.
Turning to the modern history of the law of nature, we find it easier
to convince ourselves of the vastness of its influence than to
pronounce confidently whether that influence has been exerted for good
or for evil. The doctrines and institutions which may be attributed to
it are the material of some of the most violent 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 house of Capet, 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 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 of law
to which it belonged had any authority to supersede local customs, the
elder jurist would not probably have ventured to do more than question
the applicability of the rule, or at best cite some counter
proposition from the Pandects or the Canon Law. It is extremely
necessary to bear in mind the 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.
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-Angoulême 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
organisation which distributed their profession over France in great
chartered corporations possessing large defined powers and still
larger indefinite claims. In all the qualities of the advocate, the
judge, and the legislator, they far excelled their compeers throughout
Europe. Their juridical tact, their ease of expression, their fine
sense of analogy and harmony, and (if they may be judged by the
highest names among them) their passionate devotion to their
conceptions of justice, were as remarkable as the singular variety of
talent which they included, a variety covering the whole ground
between the opposite poles of Cujas and Montesquieu, of D'Aguesseau
and Dumoulin. But, on the other hand, the system of laws which they
had to administer stood in striking contrast with the habits of mind
which they had cultivated. The France which had been in great part
constituted by their efforts was smitten with the curse of an
anomalous and dissonant jurisprudence beyond every other country in
Europe. One great division ran through the country and separated it
into _Pays du Droit Ecrit_ and _Pays du Droit Coutumier_, 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 du Droit Coutumier_
province differed from province, county from county, municipality from
municipality, in the nature of its customs. In the _Pays du 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 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 infested 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 præ-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,
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 indicated 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 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 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 signatory 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 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 relation 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 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, popularity, 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, natural, condition of society or the
individual. It is chiefly, however, by allying themselves with
political and social tendencies that the doctrines of Nature and her
law have preserved their energy. Some of these tendencies they have
stimulated, others they have actually created, to a great number they
have given expression and form. They visibly enter largely into the
ideas which constantly radiate from France over the 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 universal at the time,
disdain of positive law, impatience of experience, and the preference
of _à 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 _Sophismes Anarchiques_ which Dumont published for Bentham, and
which embody Bentham's exposure of errors distinctively French, are
derived from the Roman hypothesis in its French 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. They are comparatively rare in the
Constituent Assembly; they are much more frequent in the Legislative;
in the Convention, amid the din of debate on conspiracy and war, they
are perpetual.
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 naturâ
æquales sunt," but in their eyes this is a strictly juridical axiom.
They intend 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 "æquales 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, composition, and
development of human institutions, were beginning to express the sense
of a great standing wrong suffered by mankind. As early as the
beginning of the fourteenth century, the current language concerning
the birth-state of men, though visibly intended to be identical with
that of Ulpian and his contemporaries, has assumed an altogether
different form and meaning. The preamble to the celebrated ordinance
of King Louis Hutin enfranchising the serfs of the royal domains would
have sounded strangely to Roman ears. "Whereas, according to 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, etc." 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 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, 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 grandest 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 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 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
jurisconsults abhorred. There is certainly apparent reason for
thinking that if the mind of a Roman lawyer rested on any sphere from
which civil law was banished, it would 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 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 Naturæ 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 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 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 _inter se_ are to be
deemed not _paramount_, but _absolute_, owners of the state's
territory."
Many contemporary writers on International Law tacitly assume that the
doctrines of their system, founded on principles of equity and common
sense, were capable of being readily reasoned out in every stage of
modern 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 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. The alternative to this peculiar notion of sovereignty
appears to have been--and this is the important point--the idea of
universal dominion. The moment 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 only
precedent which suggested itself for his adoption was the domination
of the Emperors of Rome. To parody a common quotation, he became "_aut
Cæsar aut nullus_." Either he pretended to the full prerogative of the
Byzantine Emperor, or he had no political status whatever. 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 unwilling to call themselves 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.
These singularities of view were not altered on the partition of the
inheritance of Charlemagne among his three grandsons. Charles the
Bald, Lewis, and Lothair were still theoretically--if it be proper to
use the word--Emperors of Rome. Just as the Cæsars of the Eastern and
Western Empires had each been _de jure_ emperor of the whole world,
with _de facto_ control over half of it, so the three Carlovingians
appear to have considered their power as limited, but their title as
unqualified. The same speculative universality of sovereignty
continued to be associated with the Imperial throne after the second
division on the death of Charles the Fat, 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 _à priori_, for it was feudalism which for the
first time linked personal duties, and by consequence personal rights,
to the ownership of land. Whatever be 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 Cæsars 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 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. When the feudal
prince of a limited territory surrounding Paris began, from the
accident of his uniting an unusual number of suzerainties in his own
person, to call himself _King of France_, he became king in quite a
new sense, a sovereign standing in the same relation to the soil of
France as the baron to his estate, the tenant to his freehold. The
precedent, however, was as influential as it was novel, and 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 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 Ægean.
During the period through which the popular ideas on the subject of
sovereignty were undergoing this remarkable change, the system which
stood in the place of what we now call International Law, was
heterogeneous in form and inconsistent in the principles to which it
appealed. Over so much of Europe as was comprised in the Romano-German
empire, the connection of the confederate states was regulated by the
complex and as yet incomplete mechanism of the Imperial 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 Cæsar was still the
centre. This doctrine was less confidently repudiated in the outlying
countries than we might have supposed antecedently; but,
substantially, through the rest of Europe feudal subordinations
furnished a 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 consolidated by 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 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 license 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 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.
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. Grotius and his
successors invested them not less 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
præ-social state, and as to the nature of the abnormal 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 labour 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 jurisprudence, there is an evident
anxiety to thrust into especial prominence those manners and
institutions which astonish the civilised reader by their uncouthness,
strangeness, or indecency. The inference constantly suggested is, that
laws are the creatures of climate, local situation, accident, or
imposture--the fruit of any causes except those which appear to
operate with tolerable constancy. Montesquieu seems, in fact, to have
looked on the nature of man as entirely plastic, as passively
reproducing the impressions, and submitting implicitly to the
impulses, which it receives from without. And here no doubt lies 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 overestimated 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 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 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 imposing these commands on
themselves, as to the connection of these commands with each other, and
the nature of their dependence on those which preceded them, and
which they have superseded. Bentham 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
speculations are chargeable, except perhaps those of Montesquieu. They
take no account of what law has actually been at epochs remote from
the particular period at which they made their appearance. Their
originators 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 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 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 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 Menu, are as a whole of suspicious
authenticity; and, using the key we have obtained, we are in a
position to discriminate those portions of them which are truly
archaic from those which have been affected by the prejudices,
interests, or ignorance of the compiler. It will at least be
acknowledged that, if the materials for this process are sufficient,
and if the comparisons be accurately executed, the methods followed
are as little objectionable as those which have led to such surprising
results in comparative philology.
The effect of the evidence derived from comparative jurisprudence is
to establish that view of the primeval 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 connection 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 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
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 from 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 _Odyssee_ of Homer:
[Greek: toisin d out agorai boulêphoroi oute themistes.
* * * themisteuei de ekastos
paidôn êd alochôn, oud allêlôn alegousin.]
"They have neither assemblies for consultation nor _themistes_, 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 _themistes_ which
were analysed in the first chapter of this work. When we go forward to
the state of society in which these early legal conceptions show
themselves as formed, we find that they still partake of the mystery
and spontaneity which must have seemed to characterise a despotic
father's commands, but that at the same time, inasmuch as they proceed
from a sovereign, they presuppose a union of family groups in some
wider organisation. The next question is, what is the nature of this
union and the degree of intimacy which it involves? It is just here
that archaic law renders us one of the greatest of its services and
fills up a gap which otherwise could only have been bridged by
conjecture. It is full, in all its provinces, of the clearest
indications that society in primitive times was not what it is assumed
to be at present, a collection of _individuals_. In fact, and in the
view of the men who composed it, it was _an aggregation of families_.
The contrast may be most forcibly expressed by saying that the _unit_
of an ancient society was the Family, of a modern society the
Individual. We must be prepared to find in ancient law all the
consequences of this difference. It is so framed as to be adjusted to
a system of small independent corporations. It is therefore scanty,
because it is supplemented by the despotic commands of the heads of
households. It is ceremonious, because the transactions to which it
pays regard resemble international concerns much more than the quick
play of intercourse between individuals. Above all it has a
peculiarity 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 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
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 the type of them, and they are so described to us that we can
scarcely help conceiving them as a system of concentric circles which
have gradually expanded from the same point. The elementary group is
the Family, connected by common subjection to the highest male
ascendant. The aggregation of Families forms the Gens or House. The
aggregation of Houses makes the Tribe. The aggregation of Tribes
constitutes the Commonwealth. Are we at liberty to 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 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 admitted 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 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 circumstance, 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 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 connection 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 theory which they vanquished and
dethroned.
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 important limitation. We must look on
the family as constantly enlarged by the absorption of strangers
within its circle, and we must try to regard the fiction of adoption
as so closely simulating the reality of kinship that neither law nor
opinion makes the slightest difference between a real and an adoptive
connection. 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 nevertheless _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 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 of 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 idea of the
ultimate result to which it was tending. And, in pursuing this last
inquiry, we need not suffer ourselves to be stopped by the imaginary
barrier which separates the modern from the ancient world. For one
effect of that mixture of refined Roman law with primitive barbaric
usage, which is known to us by the deceptive name of feudalism, was to
revive many features of archaic jurisprudence which had died out of
the Roman world, so that the decomposition 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
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, Gaius could find
none which exhibited an institution resembling the Roman "Power of the
Father," except only the Asiatic Galatæ. 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
same time, if it is natural in the sons to obey the father, it is
equally natural that they should look to him for superior strength or
superior wisdom. Hence, when societies are placed under circumstances
which cause an especial value to be attached to bodily and mental
vigour, there is an influence at work which tends to confine the
Patria Potestas to the cases where its possessor is actually skilful
and strong. When we obtain our first glimpse of 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 _Odyssee_ appear to show that,
where extraordinary valour and sagacity were united in the son, the
father in the decrepitude of age was deposed from the headship of the
family. In the mature Greek jurisprudence, the rule advances a few
steps on the practice hinted at in the Homeric literature; and though
very many traces of stringent family obligation remain, the direct
authority of the parent is limited, as in European codes, to the
nonage or minority of the children, or, in other words, to the period
during which their mental and physical inferiority may always be
presumed. The Roman law, however, with its remarkable tendency to
innovate on ancient usage only just so far as the exigency of the
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
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 vitæ necisque_, the power of life and
death, and _à 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 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 step in advance
was a call for the expatriation of more Roman citizens and a fresh
draft on the blood of the failing Latin race. We may infer, I think,
that a strong sentiment in favour of the relaxation of the Patria
Potestas had become fixed by the time that the pacification of the
world commenced on the establishment of the Empire. The first serious
blows at the ancient institution are attributed to the earlier Cæsars,
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.
Many of the causes which helped to mitigate the stringency of the
father's power over the persons of his children are doubtless among
those which do not lie upon the face of history. We cannot tell how
far public opinion may have paralysed an authority which the law
conferred, or how far natural affection may have rendered it
endurable. But though the powers over the _person_ may have been
latterly nominal, the whole tenour of the extant Roman jurisprudence
suggests that the father's rights over the son's _property_ were
always exercised without scruple to the full extent to which they were
sanctioned by law. 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 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 Peculium in the case of civil servants.
Other modifications of the parental privileges followed, which showed
a less studious outward respect for the ancient principle. Shortly
after the 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
_usufruct_, or life-interest. A few more changes of slight importance
followed in the Western Empire, but the furthest point reached was in
the East, under Justinian, who enacted that unless the acquisitions of
the child were derived from the parent's own property, the parent's
rights 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 Germanic immigrants
seem to have recognised a corporate union of the family under the
_mund_, or authority of a patriarchal chief; but his powers are
obviously only the relics of a decayed Patria Potestas, and fell far
short of those enjoyed by the Roman father. The Franks are
particularly mentioned as not having the Roman Institution, and
accordingly the old French lawyers, even when most busily engaged in
filling the interstices of barbarous custom with rules of Roman law,
were obliged to protect themselves against the intrusion of the
Potestas by the express maxim, _Puyssance de père 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 familias_.
It does not fall within the province of this treatise to examine the
mechanism of the later Roman society, but I may be permitted to remark
that there is little foundation for the opinion which represents the
constitution of Antoninus Caracalla conferring Roman citizenship on
the whole of his subjects as a measure of small importance. However we
may interpret it, it must have enormously enlarged the sphere of the
Patria Potestas, and it seems to me that the tightening of family
relations which it effected is an agency which ought to be kept in
view more than it has been, in accounting for the great moral
revolution which was transforming the world.
Before this branch of our subject is dismissed, it should be observed
that the Paterfamilias was answerable for the delicts (or _torts_) of
his Sons under Power. He was similarly liable for the torts of his
slaves; but in both cases he originally possessed the singular
privilege of tendering the 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 Filius-familias. In the chapter on Successions I shall attempt
to show in what sense, and to what extent, this "unity" can be
accepted as a reality. I can only say at present that these
responsibilities of the Paterfamilias, and other legal phenomena which
will be discussed hereafter, appear to me to point at certain _duties_
of the primitive Patriarchal chieftain which balanced his _rights_. I
conceive that, if he disposed absolutely of the persons and fortune of
his clansmen, this representative 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 connection 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 relationship 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
connection 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 connection in blood which it
indicates depends on the particular marriage which is selected as the
commencement of the calculation. If we begin with the marriage of
father and mother, Cognation 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 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 connection exclusively
through males. A table of Cognates is, of course, formed by taking
each lineal ancestor in turn and including all his descendants of both
sexes in the tabular view; if then, in tracing the various branches of
such a 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 familiæ"--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 Agnate thus obtained all persons,
male or female, who have been brought into the Family by the
artificial extension of its boundaries. But the descendants of such
persons will only be Agnates, if they satisfy the conditions which
have just been described.
What then is the reason of this arbitrary 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 organisation 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 might
be subject to two distinct Patriæ Potestates; but distinct Patriæ
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 Parental 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 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 Prætors 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 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 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 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 Roman
jurisprudence 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 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 blood-relations, while a
prime phenomenon of modern jurisprudence has been her subordination to
her husband. The history of the change is remarkable. It begins far
back in the annals of Rome. Anciently, there were three modes in which
marriage might be contracted according to Roman usage, one involving a
religious solemnity, the other two the observance of certain secular
formalities. By the religious marriage or _Confarreation_; by the
higher form of civil marriage, which was called _Coemption_; and by
the lower form, which was termed _Usus_, the Husband acquired a 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 little more than a temporary deposit of the
woman by her family. The rights of the family remained unimpaired, and
the lady continued in the tutelage of guardians whom her parents had
appointed and whose privileges of control overrode, in many material
respects, the inferior authority of her husband. The consequence was
that the situation of the Roman female, whether married or unmarried,
became one of great personal and proprietary independence, for the
tendency of the later law, as I have already hinted, was to reduce
the power 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 the liberal doctrines of the great Antonine
jurisconsults. And the prevalent state of religious sentiment may
explain why it is that modern jurisprudence, forged in the furnace of
barbarian conquest, and formed by the fusion of Roman jurisprudence
with patriarchal usage, has absorbed, among its rudiments, much more
than usual of those rules concerning the position of women which
belong peculiarly to an imperfect civilisation. During the troubled
era which begins modern history, and while the laws of the Germanic
and Sclavonic immigrants remained superposed like a separate layer
above the Roman jurisprudence of their provincial subjects, the women
of the dominant races are seen everywhere under various forms of
archaic guardianship, and the husband who takes a wife from any family
except his own pays a money-price to her relations for the tutelage
which they surrender to him. When we move onwards, and the code of the
middle ages has been formed by the amalgamation of the two systems,
the law 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 Western and Southern 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 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 keeping alive and
consolidating 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 Napoléon; 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. 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 Scandinavian laws, harsh till lately to all females, are still
remarkable for their severity to wives. And scarcely less 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 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. All 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 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 Lætoria_ or _Plætoria_
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 validate their acts or contracts. The
twenty-sixth year of the young man's age was the limit of this
statutory supervision; and it is exclusively with reference to the age
of twenty-five that the terms "majority" and "minority" are employed
in Roman law. _Pupilage_ or _wardship_ in modern jurisprudence had
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 nature jurisprudence regulate the connection of _Master and
Slave_, present no very distinct traces of the original condition
common to ancient societies. But there are reasons for this exception.
There seems to be something in the institution of Slavery which has at
all times either shocked or perplexed mankind, however little
habituated to reflection, and however 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 imaginary principle upon which a
defence, or at least a rationale, of slavery could be plausibly
founded. Very early in their history the Greeks explained the
institution as grounded on the intellectual inferiority of certain
races and their consequent natural aptitude for the servile condition.
The Romans, in a spirit equally characteristic, derived it from a
supposed agreement between the victor and the vanquished in which the
first stipulated for the perpetual services of his foe; and the other
gained in consideration the 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. The
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 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
acknowledgment 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 were
unequal to comprehending any basis of the connection _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 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 are better in many material respects 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 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 reaches only to the heads of families, and to
every other individual the rule of conduct is the law of his home, of
which his Parent is the legislator. But the sphere of civil law, small
at first, tends steadily to enlarge itself. The agents of legal
change, Fictions, Equity, and Legislation, are brought in turn to bear
on the primeval institutions, and at every point of the progress, a
greater number of personal rights and a larger amount of property are
removed from the domestic forum to the cognisance of the public
tribunals. The ordinances of the government obtain gradually the same
efficacy in private concerns as in matters of state, and are no longer
liable to be overridden by the behests of a despot enthroned by each
hearthstone. We have in the annals of Roman law a nearly complete
history of the crumbling away of an archaic system, and of the
formation of new institutions from the recombined 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 collapse of the
ancient organisation can only be perceived by careful study of the
phenomena they present. But, whatever its pace, the change has not
been subject to reaction or recoil, and apparent retardations 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 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 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_.
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 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 connection
entangled and obscured by the confusions of six troubled centuries,
while other inquirers, not naturally deficient in patience and
industry, have been misled by idle pride in the legal system of their
country, and by consequent unwillingness to confess its obligations to
the jurisprudence of Rome. But these unfavourable influences have had
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 afterwards in all its integrity. The influence
of the Church had much to do with this rapid assimilation. The
ecclesiastical power had very early succeeded to those privileges of
custody and registration of Testaments which several of the heathen
temples had enjoyed; and even thus early it was almost exclusively to
private bequests that the religious foundations owed their temporal
possessions. Hence it is that the decrees of the earliest Provincial
Councils perpetually contain anathemas against those who deny the
sanctity of Wills. Here, in England, Church influence was certainly
chief among the causes which by universal acknowledgment have
prevented that discontinuity in the history of Testamentary Law, which
is sometimes 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 personalty has become a modified form of the
dispensation under which the inheritances of Roman citizens were
administered.
It is not difficult to point out the extreme difference of the
conclusions forced on us by the historical treatment of the subject
from those to which we are conducted when, without the help of
history, we merely strive to analyse our _primâ 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.
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 connection, is in substance
followed by those who affirm that the right of dictating or
controlling the posthumous disposal of property is a necessary or
natural consequence of the proprietary rights themselves. And every
student of technical 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 Napoléon_, and has witnessed the steady multiplication of
systems for which the French codes have served as a model. To the
second assertion we must object that it is contrary to the
best-ascertained facts in the early history of law, and I venture to
affirm generally that, in 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 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
_fact_ there is no university of rights and duties. The 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 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 "personalty." 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
_adrogated_ a son, _i.e._ took a man, not already under Patria
Potestas, as his adoptive child, he succeeded _universally_ to the
adoptive child's estate, _i.e._ he took all the property and became
liable for all the obligations. Several other forms of universal
succession appear in the primitive Roman Law, but infinitely the most
important and the most durable of all was that one with which we are
more immediately concerned, Hæreditas or Inheritance. Inheritance was
a universal succession occurring at a death. The universal successor
was Hæres 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
Hæres remained the same, whether he was named by a Will or whether he
took on an Intestacy. The term Hæres is no more emphatically used of
the Intestate than of the Testamentary Heir, for the manner in which a
man became Hæres 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. _Hæreditas 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
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 turned
on the continuity of succession. Unless provision was made in the will
for the instant devolution of the testator's rights and duties on the
Heir or Co-heirs, the testament lost all its effect.
In modern Testamentary jurisprudence, as in the later Roman law, the
object of first importance is the execution of the testator's
intentions. In the ancient law of Rome the subject of 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 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
member of a gens, house, or clan; and lastly, he is a member of his
_family_. This last was the narrowest and most personal relation in
which he stood; nor, paradoxical as it may seem, was he ever regarded
as _himself_, as a distinct individual. His individuality was
swallowed up in his family. I repeat the definition of a primitive
society given before. It has for its units, not individuals, but
groups of men united by the reality or the fiction of blood-relationship.
It is in the peculiarities of an undeveloped society that we seize the
first trace of a universal succession. Contrasted with the
organisation of a modern state, the commonwealths of primitive times
may be fairly described as consisting of a number of little despotic
governments, each perfectly distinct from the rest, 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 contemplation of his fellow-citizens and in the eye of
the law, quite as much those of the collective body as his own. Let us
consider for a moment the effect which would be produced by the death
of such a representative. In the eye 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
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, 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 had 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 speculations, 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 Corporations--Perpetuity.
Now in the older theory of Roman Law the individual bore to the family
precisely the same relation which in the rationale of 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 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 Testamentary 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 Testaments 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 _Family_, that is, the
aggregate of rights and duties contained in the Patria Potestas and
growing out of it. The material property is in three instances not
mentioned at all; in two others, it is visibly named as an adjunct or
appendage of the Family. The original Will or Testament was therefore
an instrument, or (for it was probably not at first in writing) a
proceeding, by which the devolution of the _Family_ was regulated. It
was a mode of declaring who was to have the chieftainship, in
succession to the Testator. When Wills are understood to have this for
their original object, we see at once how it is that they came to be
connected with one of the most curious relics of ancient religion and
law, the _sacra_, or Family Rites. These _sacra_ were the Roman form
of an institution which shows itself wherever society has not wholly
shaken itself free from its primitive clothing. They are the
sacrifices and ceremonies by which the brotherhood of the family is
commemorated, the pledge and the witness of its perpetuity. Whatever
be their nature,--whether it be true or not that in all cases they are
the worship of some mythical ancestor,--they are everywhere employed
to attest the sacredness of the family-relation; and therefore they
acquire prominent significance and importance, whenever the continuous
existence of the Family is endangered by a change in the person of its
chief. Accordingly we hear most about them in connection with demises
of domestic sovereignty. Among the Hindoos, the right to inherit a
dead man's property is exactly co-extensive 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 those 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 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 Indo-European
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 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 proprietary
rights. No such consequences as these appear in fact to have been
associated with the Testamentary power even by the latest Roman
lawyers. It will be found that Wills were never looked upon in the
Roman community as a contrivance for parting Property and the Family,
or for creating a variety of miscellaneous interests, but rather as a
means of making a better provision for the members of a household than
could be secured through the rules of Intestate succession. We may
suspect indeed that the associations of a Roman with the practice of
will-making were extremely different from those familiar to us
nowadays. The habit of regarding Adoption and Testation as modes of
continuing the Family cannot but have had something to do with the
singular laxity of Roman notions as to the inheritance of sovereignty.
It is impossible not to see that the succession of the early Roman
Emperors to each other was 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 Cæsar 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. 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 Barbarorum_, the great object of investigation being to detach
those portions of each system which formed the customs of the tribe in
its original home from the adventitious ingredients which were
borrowed from the laws of the Romans. In the course of this process,
one result has invariably disclosed itself, that the ancient nucleus
of the code contains no trace of a Will. Whatever testamentary law
exists, has been taken from Roman jurisprudence. Similarly, the
rudimentary Testament which (as I am informed) the Rabbinical Jewish
law provides for, has been attributed to contact with the Romans. The
only form of testament, not belonging to a Roman or Hellenic society,
which can reasonably be supposed indigenous, is that recognised by the
usages of the province of Bengal; and the testament of Bengal is 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 later 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
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 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 Prætor, to the
following effect:--First, the _sui_ or direct descendants who had
never been emancipated succeeded. On the failure of the _sui_, the
Nearest Agnate came into their place, that is, the nearest person or
class of the kindred who was or might have been under the same Patria
Potestas with the deceased. The third and last degree came next, in
which the inheritance devolved on the _gentiles_, that is on the
collective members of the dead man's _gens_ or _House_. The House, I
have explained already, was a fictitious extension of the family,
consisting of all Roman Patrician citizens who bore the same name, and
who, on the ground of bearing the same name, were supposed to be
descended from a common ancestor. Now the Patrician Assembly called
the Comitia Curiata was a Legislature in which Gentes or Houses were
exclusively represented. It was a representative assembly of the Roman
people, constituted on the assumption that the constituent unit of the
state was the Gens. This being so, the inference seems inevitable,
that the cognizance 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 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 Will, 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 Gentem
non habet_, "a Plebeian cannot be a member of a House," was entirely
to exclude the Plebeians from the Comitia Curiata. Some critics have
accordingly supposed that a Plebeian could not have his Will read or
recited to the Patrician Assembly, and was thus deprived of
Testamentary privileges altogether. Others have been satisfied to
point out the hardships of having to submit a proposed Will to the
unfriendly jurisdiction of an assembly in which the Testator was not
represented. Whatever be the true view, a form of Testament came into
use, which has all the characteristics of a contrivance intended to
evade some distasteful obligation. The Will in question was a
conveyance _inter vivos_, a complete and irrevocable alienation of the
Testator's family and substance to the person whom he meant to be his
heir. The strict rules of Roman law must always have permitted such an
alienation, but, when the transaction was intended to have a
posthumous effect, there may have been disputes whether it was valid
for Testamentary purposes without the formal assent of the Patrician
Parliament. If a difference of opinion existed on the point between
the two classes of the Roman population, it was 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 pecuniâ tutelâve rei suæ legâssit, ita jus
esto_"--a law which can hardly have had any other object than the
legalisation 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 probable
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 _mancipium_, or ancient Roman conveyance, a proceeding to
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 æs et libram_, "with the copper and the scales," as it
long continued to be technically called--was an ordinary Mancipation
with no change in the form and hardly any in words. The Testator was
the grantor; the five witnesses and the libripens were present; and
the place of grantee was taken by a person known technically as the
_familiæ 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 _Emptor familiæ_ 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 _familiæ 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 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 Familiæ 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 consequence 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 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
feoffment bore to the feoffment itself. Previously, indeed, to the
Twelve Tables, no writing would have been of the slightest use, for
the Testator had no power of giving legacies, and the only persons who
could be advantaged by a will were the Heir or Co-heirs. But the
extreme 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 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
_familiæ emptor_ was commissioned to pay.
The terms of the expression _Emptor familiæ_ demand notice. "Emptor"
indicates that the Will was literally a sale, and the word "familiæ,"
when compared with the phraseology in the Testamentary clause in 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 suæ_, "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 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 Prætors 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 _Prætorian_ Testament derived
the whole of its impregnability from the _Jus Honorarium_ or Equity of
Rome. The Prætor 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 Prætor's
successor, and repeated by the next in office, till at length it
formed a recognised portion of that body of jurisprudence which from
these successive incorporations was styled the Perpetual or Continuous
Edict. On examining the conditions of a valid Prætorian Will they will
be plainly seen to have been determined by the requirements of the
Mancipatory Testament, the innovating Prætor 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 Prætorian Will: two of them corresponding to the
_libripens_ and _familiæ 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 Prætorian 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. It is to be observed that the seals of Roman Wills,
and other documents of importance, did not simply serve as the index
of the presence or assent of the signatory, but were 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 Prætor therefore could not confer an _Inheritance_
on anybody. He could not place the Heir or Co-heirs in that very
relation in which the Testator had himself stood to his own rights and
obligations. All he could do was to confer on the person designated as
Heir the practical enjoyment of the property 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 Prætor was
technically said to communicate the _Bonorum Possessio_. The Heir
specially inducted under these circumstances, or _Bonorum Possessor_,
had every proprietary privilege of the Heir by the Civil Law. He took
the profits and he could alienate, but then, for all his remedies for
redress against wrong, he must go, as we should phrase it, not to the
Common Law, but to the Equity side of the Prætorian 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 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 Prætorian 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 Cæsars, 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 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 "Familiæ Emptor"
had other ulterior consequences. As soon as it was legalised, a Roman
Testament came to consist of two parts or stages--a conveyance, which
was a pure form, and a Nuncupatio, or Publication. In this latter
passage of the 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 Nuncupation 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 Prætorian law. Meantime the ingenuity of the
Jurisconsults effects, in the Common-Law Will or Mancipatory
Testament, the very improvements which the Prætor 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 Prætorian Testament on one side, and to
the Testament "with the copper and the scales" on the other. Like the
Testament of the Prætor, it required no Mancipation, and was invalid
unless sealed by seven witnesses. Like the Mancipatory Will, it passed
the Inheritance and not merely a _Bonorum Possessio_. Several,
however, of its most important features were annexed by positive
enactments, and it is out of regard to this threefold derivation from
the Prætorian Edict, from the Civil Law, and from the Imperial
Constitutions, that Justinian speaks of the Law of Wills in his own
day as _Jus Tripertitum_. The new Testament thus described is the one
generally known as the Roman Will. But it was the Will of the Eastern
Empire only; and the researches of Savigny have shown that in Western
Europe the old Mancipatory Testament, with all its apparatus of
conveyance, copper, and scales, continued to be the form in use far
down in the Middle Ages.
CHAPTER VII
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 Prætor very actively exerted in the same interest;
and we are also presented with a new remedy, very anomalous in
character and of uncertain origin, called the Querela Inofficiosi
Testamenti, "the Plaint of an Unduteous Will," directed to the
reinstatement of the issue in inheritances from which they had been
unjustifiably excluded by a father's Testament. Comparing this
condition of the law with the text of the Twelve Tables which concedes
in terms the utmost liberty of Testation, several writers have been
tempted to interweave a good deal of dramatic incident into their
history of the Law Testamentary. They tell us of the boundless license
of disinherison in which the heads of families instantly began to
indulge, of the scandal and injury to public morals which the new
practices engendered, and of the applause of all good men which hailed
the courage of the Prætor 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 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 Prætor, 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 effecting 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 would rather seem as if the Testamentary Power were
chiefly valued for the assistance it gave in _making provision_ for a
Family, and in dividing the 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 that 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, _à priori_, that it was
something in the rules of Intestate Succession which caused this
vehement preference for the distribution of property under a Testament
over its distribution by law. The difficulty, however, is, that on
glancing at the Roman Law of Intestate Succession, in the form which
it wore for many centuries before Justinian shaped it into that scheme
of inheritance which has been almost universally adopted by 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
pre-Justinianean 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 Prætor. The Civil
Law, as I have already stated for another purpose, calls to the
inheritance only three orders of successors in their turn; the
Unemancipated children, the nearest class of Agnatic kindred, and the
Gentiles. Between these three orders, the Prætor 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 Prætorian 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, 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,
persevered 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 _à 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
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 Prætor 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 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 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 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
conservation of property in families, is much liker that which
prevailed through 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 co-heirs. This group succeeded as a single unit, and the
assets were afterwards divided among them in a separate legal
proceeding. When the Succession was _ab intestato_, and the group
consisted of the children of the deceased, they each took an equal
share of the property; nor, though males had at one time some
advantages over females, is there the faintest trace of Primogeniture.
The mode of distribution is the same throughout archaic jurisprudence.
It certainly seems that, when civil society begins and families cease
to hold together through a series of generations, the idea which
spontaneously suggests itself is to divide the domain equally among
the members of each successive generation, and to reserve no privilege
to the eldest son or stock. Some peculiarly significant hints as to
the close relation of this phenomenon to primitive thought are
furnished by systems yet more archaic than the Roman. Among the
Hindoos, the instant a son is 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 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 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 the domainial (or Roman) and the
allodial (or German). The allods were wholly absorbed by the fiefs.
The greater allodial proprietors transformed themselves into feudal
lords by conditional 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 Settlements, the
Pactes de Famille of France and Haus-Gesetze of Germany, which
universally stipulated that lands held by knightly service should
descend to the eldest son. 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 Primogeniture 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 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, indeed, in India, tend to become hereditary, and, when their
nature permits it, to vest in the eldest member of the oldest stock.
Comparing these Indian successions with some of the ruder social
organisations which have survived in Europe almost to our own day, the
conclusion suggests itself that, when Patriarchal power is not only
_domestic_ but _political_, it is not distributed among all the
issue at the parent's death, but is the birthright of the eldest
son. The chieftainship of a Highland clan, for example, followed
the order 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 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
Roman Paterfamilias was visibly 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
family-government known to the invading races, though not in general
use. Some ruder tribes may have still practised it, or, what is still
more probable, society may have been so slightly removed from its more
archaic condition that the minds of some men spontaneously recurred to
it, when they were called upon to settle the rules of inheritance for
a new form of property. But there is still the question, Why did
Primogeniture gradually 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 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
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 were called in to
interpret and define it, the principles of interpretation which they
applied to it were those of the latest Roman jurisprudence, and were
therefore excessively refined and matured. In a patriarchally governed
society, the eldest son may succeed to the government of the Agnatic
group, and to the absolute disposal of its property. But he is not
therefore a true proprietor. He has correlative duties not 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 fortune, or the
hanger-on of the mansion. The legal revolution was identical with that
which occurred on a smaller scale, and in quite recent times, through
the greater part of the Highlands of Scotland. When called in to
determine the legal powers of the 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
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 France--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 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 begun 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 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 Macdonalds.
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 in Egypt, I am informed that there is some
doubt as to its governing the devolution of the Turkish sovereignty.
The policy of the Sultans has in fact hitherto prevented cases for its
application from occurring, and it is possible that their wholesale
massacres of their younger brothers may have been perpetuated 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 Mahometan
sovereigns, without pretending to any distinct testamentary power,
claim the right of nominating the son who is to succeed. The
_blessing_ mentioned in the Scriptural history of Isaac and his sons
has sometimes been spoken of as a will, but it seems rather to have
been a mode of naming an eldest son.
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 proportion 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 had_ an owner are wild animals, fishes, wild fowl, jewels
disinterred for the first time, and lands newly discovered or never
before cultivated. Among things which _have not_ an owner are
moveables which have been abandoned, lands which have been deserted,
and (an anomalous but most formidable item) the property of an enemy.
In all these objects the full rights of dominion were acquired by the
_Occupant_ who first took possession of them with the intention of
keeping them as his own--an intention which, in certain cases, had to
be manifested by specific 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 attributed by
another to the Law of Nature. But for its fortunes in modern legal
history we are less prepared by _à 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 has 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 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 them
his own, is an institution of Natural Law. The rules which
International jurisprudence derives from these positions have
sometimes been stigmatised as needlessly indulgent to the ferocity and
cupidity of combatants, but the charge has been made, I think, by
persons who are unacquainted with the history of wars, and who are
consequently ignorant how great an exploit it is to command obedience
for a rule of any kind. The Roman principle of Occupancy, when it was
admitted into the modern law of Capture in War, drew with it a number
of 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 fifteenth and sixteenth
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 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 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 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 immediate 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 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 of 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 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 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 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 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 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 Hobbes is hardened
into the social rock by the wholesome discipline of force. It is an
Individual who, in the picture drawn by Blackstone, "is in the
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 permeating 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 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 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 _à 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 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 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, _Nemo in communione
potest invitus detineri_ ("No one can be kept in co-proprietorship
against his will"). But in India this order of ideas is reversed, and
it may be said that separate proprietorship is always on its way to
become proprietorship in common. The process has been adverted to
already. As soon as a son is born, he acquires a vested interest in
his father's substance, and on attaining years of discretion he is
even, in certain contingencies, permitted by the letter of the law to
call for a partition of the family estate. As a fact, however, a
division rarely takes place even at the death of the father, and the
property constantly remains undivided for several 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 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 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 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
Familiæ, 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 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 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 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 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 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 any
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
elimination 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 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. 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 them, 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 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 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 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 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 written,
so that their language, well pondered by the professional draftsman,
is rarely defective in accuracy. But an ancient conveyance was not
written, but _acted_. Gestures and words took the place of written
technical phraseology, and any formula mispronounced, or symbolical
act omitted, would have vitiated the proceeding as fatally as a
material mistake 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 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 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 Nec
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 property are first, from disdain
and disregard, released from the perplexed ceremonies in which
primitive law delights, and thus 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 classification, 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 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 completed,
there was practically but one distinction left standing of all those
which had been known to the western world--the distinction between
land and goods, 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 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 short--one or two years according to the
nature of the commodities--and in historical times Usucapion was only
allowed to operate when possession had commenced in a particular way;
but I think it likely that at a less advanced epoch possession was
converted into ownership under conditions even less severe than we
read of in our authorities. As I have said before, I am far from
asserting that the respect of men for _de facto_ possession is a
phenomenon which jurisprudence can account for by itself, but it is
very necessary to remark that primitive societies, in adopting the
principle of Usucapion, were not beset with any of the speculative
doubts and hesitations which have impeded its reception among the
moderns. Prescriptions were viewed by the modern lawyers, first with
repugnance, afterwards with reluctant approval. In several countries,
including our own, legislation long declined to advance beyond the
rude device of barring all actions based on a wrong 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 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 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 farther
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 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 English legal history, was of immemorial antiquity in
Roman law; such indeed is its apparent age that some German civilians,
not sufficiently aware of the 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 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, 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 Prætor 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
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 Mr. John Austin pointed out,
exactly reproduced itself in English law. Proprietors, _domini_, began
to prefer the simpler forms or speedier course of the Interdict to the
lagging and intricate formalities of the Real Action, and for the
purpose of availing themselves of the possessory remedy fell back
upon the possession which was supposed to be involved in their
proprietorship. The liberty conceded to persons who were not true
Possessors, but Owners, to vindicate their rights by possessory
remedies, though it may have been at first a boon, had ultimately the
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 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 Prætor'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 the legal owner was somewhat different in
the two systems. With us their independence is secured by the
Injunction of the Court of Chancery. Since however Law and Equity,
while not as yet 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 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 Prætor
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 proprietory 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 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 co-existing 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, re-consolidated 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 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 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 half-understood
Roman rules, and that it was the foreign ingredient which enabled them
to coalesce with a Roman jurisprudence that had already receded
somewhat from the comparative finish which it had acquired under the
Western Emperors.
But, though all this must be allowed, there are several considerations
which render it unlikely that the feudal form of ownership was
directly suggested by the Roman duplication of domainial rights. The
distinction between legal and equitable property strikes one as a
subtlety little likely to be 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 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
slave-gangs, 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 of letting out _agri vectigules_, 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 Prætor 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 had an
interest in the produce of the land. We know that their servitude was
predial; that it wanted many of the characteristics of absolute
slavery, and that they acquitted their service to the landlord in
rendering to him a fixed portion of the annual crop. We know further
that they survived all the mutations of society in the ancient and
modern worlds. Though included in the lower courses of the feudal
structure, they 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 Juris_, 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 Prætor, 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 proprietory 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 nonpayment 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 juxtaposition of legal and equitable rights. The history of
the Roman tenure does not end, however, at this point. We have clear
evidence that between the great fortresses which, disposed along the
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 limitrophi_, which were occupied by veteran
soldiers of the Roman army on the terms of an Emphyteusis. There was a
double ownership. The Roman State was landlord of the soil, but the
soldiers cultivated it without disturbance so long as they held
themselves ready to be called out for military service whenever the
state of the border should require it. In fact, a sort of
garrison-duty, under a system closely resembling that of the military
colonies on the Austro-Turkish border, had taken the place of the
quit-rent which was the service of the ordinary Emphyteuta. It seems
impossible to doubt that this was the precedent copied by the
barbarian monarchs who founded feudalism. It had been within their
view for some hundred years, and many of the veterans who guarded the
border were, it is to be remembered, themselves of barbarian
extraction, who probably spoke the Germanic tongues. Not only does the
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 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.
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 bygone institutions, and whether the
only relation between employer and labourer which commends 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 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 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 criminality. But the very character of these
frauds shows clearly that, before they became possible, the moral
obligations of which they are the breach must have been more than
proportionately developed. It is the confidence reposed and deserved
by the many which affords 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 Romans 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 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 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 eluding the doctrines which claimed a divine parentage for
Imperative Law, that they devised the theory that all Law had its
origin in Contract. In another stage of thought, they would have been
satisfied to leave their theory in the condition of an ingenious
hypothesis or a convenient verbal formula. But that age was under the
dominion of legal superstitions. The State of Nature had been talked
about 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 supposing that every wheel and bolt in the modern social machine
had its counterpart in more rudimentary societies. Such impressions
ramify very widely, and masque themselves very subtly, in historical
works written in the modern fashion; but I find the trace of their
presence in the domain of jurisprudence in the praise which is
frequently bestowed on the little apologue of Montesquieu concerning
the Troglodytes, inserted in the _Lettres Persanes_. The Troglodytes
were a people who systematically violated their 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 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 advancing
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 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
accompanied with a solemn ceremonial. Not only are 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 and energy of
social intercourse depends. 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 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 æs 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 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 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 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 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 over
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 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 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 right of property was
transmitted, and the personal obligation of the debtor for the unpaid
purchase-money. 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 and jurist as singularly enigmatical, I mean the extraordinary
and uniform severity of very ancient systems of law to _debtors_, and
the extravagant powers which they lodge with _creditors_. When once we
understand that the _nexum_ was artificially prolonged to give time to
the debtor, we can better comprehend his position in the eye of the
public and of the law. His indebtedness was doubtless regarded as an
anomaly, and suspense of payment in general as an artifice and a
distortion of strict rule. The person who had duly consummated his
part in the transaction must, on the contrary, have stood in peculiar
favour; and nothing would seem more natural than to arm him with
stringent 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 Convention or Pact.
Bentham and Mr. Austin have laid down that the "two main essentials of
a contract are these: first, a signification by the promising party of
his _intention_ to do the acts or to observe the forbearances which he
promises to do or to observe. Secondly, a signification by the
promisee that he _expects_ the promising party will fulfil the
proffered promise." This is virtually identical with the doctrine of
the Roman lawyers, but then, in their view, the result of these
"significations" was not a Contract, but a Convention or Pact. A Pact
was the utmost product of the engagements of individuals agreeing
among themselves, and it distinctly fell short of a Contract. Whether
it ultimately became a Contract depended on the question whether the
law annexed an Obligation to it. A Contract was a Pact (or Convention)
_plus_ an Obligation. So long as the Pact remained unclothed with the
Obligation, it was called _nude_ or _naked_.
What was an Obligation? It is defined by the Roman lawyers as "Juris
vinculum, quo necessitate adstringimur alicujus solvendæ 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 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 act 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" signified 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.
In the developed Roman law, the Convention, as soon as it was
completed, was, in almost all cases, at once crowned with the
Obligation, and so became a Contract; and this was the result to which
contract-law was surely tending. But for the purpose of this inquiry,
we must attend particularly to the intermediate stage--that in which
something more than a perfect agreement was required to attract the
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 Contracts 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 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 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 to 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 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 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 stumbling-blocks
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 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. i; 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
bookkeeping 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 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
corresponding entry in his own books was necessary to give it legal
effect. The essential point is however established that, in the case
of this Contract, all formalities were dispensed with on a condition
being complied with. This is another step downwards in the history of
contract-law.
The Contract which stands next in historical succession, the Real
Contract, shows a great advance in ethical conceptions. Whenever any
agreement had for its object the delivery of a specific thing--and
this is the case with the large majority of simple engagements--the
Obligation was drawn down as soon as the delivery had actually taken
place. Such a result must have involved a serious innovation on the
oldest ideas of Contract; for doubtless, in the primitive times, when
a contracting party had neglected to clothe his agreement in a
stipulation, nothing done in pursuance of the agreement would be
recognised by the law. A person who had paid over money on loan would
be unable to sue for its repayment unless he had formally _stipulated_
for it. But, in the Real Contract, performance on one side is allowed
to impose a legal duty on the other--evidently on ethical grounds. For
the first time then moral considerations appear as an ingredient in
Contract-law, and the Real Contract differs from its two predecessors
in being founded on these, rather than on respect for technical forms
or on deference to Roman domestic habits.
We now reach the fourth class, or Consensual Contracts, the most
interesting and important 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 ago, 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 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 _Literæ_ 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 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 Gentium_. Yet I
do not think that they were so named at a very early period. The first
notions of a Jus Gentium may have been deposited in the minds of the
Roman lawyers long before the appointment of a Prætor 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 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 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 Prætors in
making their advances towards the greatest of their innovations. Their
theory of Natural law must have led them to look with especial favour
on the Consensual Contracts and on those Pacts or Conventions of which
the Consensual Contracts were only particular 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
Prætor 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
Prætor would have been styled new Contracts, new Consensual Contracts.
Legal phraseology is, however, the part of the law which is the last
to alter, and the Pacts equitably enforced continued to be designated
simply Prætorian 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 Nexum, in which a Contract and a Conveyance are
blended, and in which the formalities which accompany the agreement
are even more important than the agreement itself. From the Nexum we
pass to the Stipulation, which is a simplified form of the older
ceremonial. The Literal Contract comes next, and here all formalities
are waived, if proof of the agreement can be supplied from the rigid
observances of a Roman household. In the Real Contract a moral duty is
for the first time recognised, and persons who have joined or
acquiesced in the partial performance of an engagement are forbidden
to repudiate it on account of defects in form. Lastly, the Consensual
Contracts emerge, in which the mental attitude of the contractors is
solely regarded, and external circumstances have no title to notice
except as evidence of the inward undertaking. It is of course
uncertain how far this progress of Roman ideas from a gross to a
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 conceptions are
important, not because they typify the necessary results of advancing
thought under all conditions, but because they have exercised
perfectly enormous influence on the intellectual diathesis of the
modern world.
I know nothing more wonderful than the variety of sciences to which
Roman law, Roman Contract-law more particularly, has contributed modes
of thought, courses of reasoning, and a 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 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 subtle,
delicate enough for the most refined, had never lost its attractions
for the educated classes of the Western provinces. To the cultivated
citizen of Africa, of Spain, of Gaul and of Northern Italy, it was
jurisprudence, and jurisprudence only, which stood in the place of
poetry and history, of 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 every-day 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 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 term 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 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 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 Cæsarian despotism--the 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
mediæval constitutions out of working order, and when 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 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 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 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.
Shortly[5] 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 of 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 object 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
conception of a Law Natural be not exclusively a creation of the Roman
jurisconsults, we may lay down that, even on the admission of Grotius
himself, the dicta of the Roman jurisprudence as to what parts of
known positive law must be taken to be parts of the Law of Nature,
are, if not infallible, to be received at all events with the
profoundest respect. Hence the system of Grotius is 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 with Protestantism by
disburthening it of an inconvenient theory, were the motives which
impelled the authors of the Casuistical philosophy to the invention of
an elaborate system of criteria, intended to remove immoral actions,
in as many cases as possible, out of the category of mortal offences,
and to stamp them as venial sins. The fate of this experiment is
matter of ordinary history. We know that the distinctions of
Casuistry, by enabling the priesthood to adjust spiritual control to
all the varieties of human character, did really confer on it an
influence with princes, statesmen, and generals, unheard of in the
ages before the Reformation, and did really contribute largely to that
great reaction which checked and narrowed the first successes of
Protestantism. But beginning in the attempt, not to establish, but to
evade--not to discover a principle, but to escape a postulate--not to
settle the nature of right and wrong, but to determine what was not
wrong of a particular nature,--Casuistry went on with its dexterous
refinements till it ended in so attenuating the moral features of
actions, and so belying the moral instincts of our being, that at
length the conscience of mankind rose suddenly in revolt against it,
and consigned to one common ruin the system and its doctors. The blow,
long pending, was finally struck in the _Provincial Letters_ of
Pascal, and since the appearance of those memorable Papers, no
moralist of the smallest influence or credit has ever avowedly
conducted his speculations in the footsteps of the Casuists. The whole
field of 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 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 connection? 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 solvendæ 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 had 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 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 Latin-speaking provinces of the Empire adopted the
conclusions of the East without disputing or reviewing them. "Latin
Christianity," says Dean Milman, "accepted the creed which its narrow
and barren vocabulary could hardly express in adequate terms. Yet,
throughout, the adhesion of Rome and the West was a passive
acquiescence in the dogmatic system which had been wrought out by the
profounder theology of the Eastern divines, rather than a vigorous and
original examination on her part of those mysteries. The Latin Church
was the scholar as well as the loyal 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 lengthened out
and cast forth sect after sect from the enfeebled community"--the
Western Church threw itself with passionate ardour into a new order of
disputes, the same which from those days to this have never lost their
interest for any family of mankind at any time included in the Latin
communion. The nature of Sin and its transmission by inheritance--the
debt owed by man and its vicarious satisfaction--the necessity and
sufficiency of the Atonement--above all the apparent antagonism
between Free-will and the Divine Providence--these were the points
which the West began to debate as ardently as ever the East had
discussed the articles of its more special creed. Why is it then that
on the two sides of the line which divides the Greek-speaking from the
Latin-speaking provinces there lie two classes of theological problems
so strikingly different from one another? The historians of the Church
have come close upon the solution when they remark that the new
problems were more "practical," less absolutely speculative, than
those which had torn Eastern Christianity asunder, but none of them,
so far as I am aware, has quite reached it. I affirm without
hesitation that the difference between the two 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 some centuries 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 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 whence
the description of reasoning employed in their solution. It must only
be recollected that 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 it perhaps aimed at a higher degree of elegance, certainty, and
precision, than human affairs will permit to the limits within which
human laws seek 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 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[6] of a given community
in jurisprudence depends in the long run on the same conditions as its
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 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 State ceases to
be parallel to the routes which mental progress had 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 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 council-chamber of the monarch--it may be to
the very throne itself."
The premium on the study of jurisprudence was so enormous that there
were schools of law in every part of the Empire, even in the very
domain of 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 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 the 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 primitive 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 prerogative 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.
[5] The passage quoted is transcribed with slight
alterations from a paper contributed by the author to
the _Cambridge Essays_ for 1856.
[6] _Cambridge Essays_, 1856.
CHAPTER X
THE EARLY HISTORY OF DELICT AND CRIME
The Teutonic Codes, including those of our Anglo-Saxon ancestors, 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 to the modes of
redressing wrong, though not enormous, 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 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 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 compensations 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 that could be
inflicted on his person, for nearly every injury that could be done to
his civil rights, honour or peace; the sum being aggravated according
to adventitious circumstances." These compositions are evidently
regarded as a valuable source of income; highly complex rules regulate
the title to them and the responsibility for them; and, as I have
already had occasion to state, they often follow a very peculiar line
of devolution, if they have not been acquitted at the decease of the
person to whom they belong. If therefore the criterion of a _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 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 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 [Greek: eisangelia], survived
the establishment of regular tribunals. It is known too that when the
freemen of the Teutonic races assembled for legislation, they also
claimed authority to punish offences of peculiar blackness or
perpetrated by criminals of exalted station. Of this nature was the
criminal 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 _through its tribunals_, is shown by the curious
circumstances that in the original administration of justice, the
proceedings were a close imitation of the series of acts which were
likely to be gone through in private 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.
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, "_Hunc ego hominem ex Jure Quiritium meum
esse dico secundum suam causam sicut dixi_;" and then saying, "_Ecce
tibi Vindictam imposui_," he touches him with the spear. The defendant
goes through the same series of acts and gestures. On this the Prætor
intervenes, and bids the litigants relax their hold, "_Mittite ambo
hominem_." They obey, and the plaintiff demands from the defendant the
reason of his interference, "_Postulo anne dicas quâ ex causâ
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 injuriâ provocasti, D æris
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 Prætor 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 dramatisation of the Origin of Justice. Two armed men are
wrangling about some disputed property. The Prætor, _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 the
same with one of the two subjects which the God Hephæstus 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
indifference 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 Prætor 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 _sacramenta_. The State did not take from the defendant a
composition for any wrong supposed to be done to itself, but claimed a
share in the compensation awarded to the plaintiff simply as the fair
price of its time and trouble. Mr. Kemble 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
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 was 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 legal scale of penalties was adjusted. The
principle is precisely the same as that followed in the Anglo-Saxon
and other Germanic codes, when they suffer a thief chased 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 the 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 in the Prerogative of Pardon, universally lodged
with the Chief Magistrate. It is curious to observe how little the men
of primitive times were troubled with these scruples, how completely
they were persuaded that the impulses of the injured person were the
proper measure of the vengeance he was entitled to exact, and how
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 world--though not precisely of the modern, as I shall
have occasion to point out--that the earliest criminal tribunals were
merely subdivisions, or committees, of the legislature. This, at all
events, is the conclusion pointed at by the legal history of the two
great states of antiquity, with tolerable clearness in one case, and
with absolute distinctness in the other. The primitive penal law of
Athens entrusted 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 Heliæa, the High Court of
Popular Justice, and the functions of the Archons and of the Areopagus
became either merely ministerial or quite insignificant. But "Heliæa"
is only an old word for Assembly; the Heliæa 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 Quæstio or Commission, which bore much the
same relation to the Assembly as a Committee of the House of Commons
bears to the House itself, except that the Roman Commissioners or
Quæstores 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 Quæstio of this sort was only
appointed to try a particular offender, but there was nothing to
prevent two or three Quæstiones 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 Quæstiones
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 Quæstores 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 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 Governor-General, but the great and permanent
importance of this statute arose from its establishing the first
Quæstio Perpetua. A Quæstio Perpetua was a _Permanent_ Commission as
opposed to those which were occasional and to those which were
temporary. It was a regular criminal tribunal whose existence dated
from the passing of the statute creating it and continued till another
statute should pass abolishing it. Its members were not specially
nominated, as were the members of the older Quæstiones, 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 Quæstio had authority to try and sentence all persons in
future whose acts 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
Quæstiones 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 Quæstio, periodically nominates Commissioners like the
Quæstores 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
Quæstiones 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 Quæstiones Perpetuæ 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 Quæstiones, to the Comitia which had deputed them to put
into exercise some of its own inalienable functions. The view which
regarded the Quæstiones, even when they became permanent, as mere
Committees of the Popular Assembly--as bodies which only ministered to
a higher authority--had some important legal consequences which left
their mark on the criminal law to the very latest period. One
immediate result was that the Comitia continued to exercise criminal
jurisdiction by way of bill of pains and penalties, long after the
Quæstiones 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 Quæstiones 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 dependance of the Quæstiones 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 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 Quæstiones Perpetuæ were established, so that the statutes
creating them were all passed by a legislative assembly which itself
could not, at its ordinary sittings, punish a criminal with death. It
followed that the Permanent Judicial 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 Quæstiones
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 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
_Quæstio_, 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 then the statutes which
constituted the various Quæstiones 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 Quæstiones 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 when the
English Courts of Common Law had not as yet introduced those
fictitious averments into their writs which enabled them to trespass
on each other's peculiar province. Like the Quæstiones, 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 Quæstiones were many more than three
in number, and it was infinitely less easy to discriminate the acts
which fell under the cognisance of each Quæstio, 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
Quæstiones 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 Quæstio 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 Quæstiones 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 are contained even in the Corpus
Juris of Justinian are remarkably capricious. Each Quæstio had, in
fact, confined itself to the crimes committed to its cognisance by its
charter. These crimes, however, were only classed together in the
original statute because they happened to call simultaneously for
castigation at the moment of passing it. They had not therefore
anything necessarily in common; but the fact of their constituting the
particular subject-matter of trials before a particular Quæstio
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 fell into the habit of designating all
the offences enumerated 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 Quæstio De Adulteriis would thus be
called Adultery.
I have dwelt on the history and characteristics of the Roman
Quæstiones because the formation of a criminal jurisprudence is
nowhere else so instructively exemplified. The last Quæstiones 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 _crimina
extraordinaria_. These were doubtless a class of acts which the theory
of Roman jurisprudence treated merely as wrongs; but the growing sense
of the majesty of society 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 ordinem_, that is by a mode
of redress departing in some respect or other from the ordinary
procedure. From the period at which these _crimina extraordinaria_
were first 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
Quæstiones, and at first they committed an extensive criminal
jurisdiction to the Senate, in which, however servile it might show
itself in fact, the Emperor was no more nominally than a Senator like
the rest. But some sort of collateral criminal jurisdiction had been
claimed by the Prince from the first; and this, as recollections of
the free commonwealth decayed, tended steadily to gain at the expense
of the old tribunals. Gradually the punishment of crimes was
transferred to magistrates directly nominated by the Emperor and the
privileges of the Senate passed to the Imperial Privy Council, which
also became a Court of ultimate criminal appeal. Under these
influences the doctrine, 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 mandatary 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 Quæstiones. In the primitive law of almost all the races which
have peopled Western Europe there are vestiges of the archaic notion
that the punishment of crimes belongs to the general assembly of
freemen; and there are some States--Scotland is said to be one of
them--in which the parentage of the existing judicature can be traced
up to a Committee of the legislative body. But the development of the
criminal law was universally hastened by two causes, the memory of the
Roman Empire and the influence of the Church. On the one hand
traditions of the majesty of the Cæsars, 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 evildoers; 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 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 Cæsar. "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 Witan. They then ordained that, out of that mercy which
Christ had taught, secular lords, with their leave, might without sin
take for every misdeed the _bot_ in money which they ordained; except
in cases of treason against a lord, to which they dared not assign any
mercy because Almighty God adjudged none to them that despised Him,
nor did Christ adjudge any to them which sold Him to death; and He
commanded that a lord should be loved like Himself."
INDEX
Austin, 69, 171;
_Province of Jurisprudence Determined_, 4
Ayala, 64
Bentham, 18, 46, 54, 70, 147;
_Fragment on Government_, 4
Blackstone, 67, 89, 150, 152
_Cambridge Essays_, 1856, Maine, 205, 212
Capture in war, 145, 146
Casuistry, 205, 206, 207
Charlemagne, 62, 233
Codes, Attic of Solon, 9;
era of, 8;
first introduced into the West, 10;
Hindoo Law of Menu, 10-12;
Justinian, 25, 27;
Napoléon, 104;
Roman, superiority over Hindoo, 10-12;
Twelve Tables of Rome, 1, 8, 9, 12, 20
Contract, Austin on, 190;
Bentham on, 190;
Imperative Law, 182;
judicial and popular error, 181;
Law of Nations, 181, 196, 197;
literal or written, 194;
origin lies in the family, 99;
pact or convention, 184, 185;
real, 195;
Roman, classification, 191, 192;
consensual, 195-198;
Domestic System, 194;
Nexum, definition of, 185-189;
Rousseau, 181;
sale, 188
Conveyances and contracts, confusion between, 185-187;
and mancipation, 185
_Corpus juris civilis_, 26
Creditors, powers of, in ancient system, 189
Crimes and wrongs, confusion between, 231, 232;
distinction between primitive and modern, 217, 218;
Kemble in _Anglo-Saxons_, 218
Criminal Law, Athens, 224;
degree of guilt, 223;
four stages of primitive history, 226;
influence of Church, 233;
primitive religious code, 218, 219;
Roman, crime against State, 219;
B.C. 149, 225;
origin of, 225;
sentence of death, 227-229;
theft, 222, 223;
tribunals, 228-230;
under emperors, 230-232
Customary Law, epoch of, 7, 8;
Hindoo, 4
Dangers of Law, rigidity, too rapid development, 44, 45
Debtors, severity of ancient system, 189
Equity, 172;
early history of, 15;
Lord Eldon on, 40;
English, 40, 41;
meaning of, 17;
origin, 34, 35;
Roman compared with English, 40-42
Feudalism, explanation of, 214
Gaius, 90, 174, 220-223
Grote, decline of kingly rule, 6;
_History of Greece_, 3, 5;
law administered by aristocracies, 7
Grotius, Hugo, 56, 58, 59, 64;
_De Jure Belli et Pacis_, 205
Homer, earliest notions of law derived from, 2, 3;
Themis, Themistes, 2-5
Indian (Hindoo) Law, _see_ separate headings Codes, Customary,
Primogeniture, Property, Testamentary Law, Village communities
Institutional Treatise (Justinian), 27
International Law, 64;
and occupancy, 145
Law of Nations (Jus Gentium), incorporation with Roman Law, 36, 37;
origin of, 27-31
Legal fictions, benefit of, 77;
examples in English Law, 18;
in Roman Law, 15, 16;
meaning, useful purpose of, 15, 16
Legis Actio Sacramenti, Gaius on, 220, 221
Legislation, the agent of legal
improvement, 17;
differing from equity, legal fictions, 17, 18
_Lettres Persanes_, 183
Maine, _Cambridge Essays_, 1856, 205, 212
Mancipation, 120, 121, 163-169, 185
Menu, Laws of, 10-12
Montesquieu, 49, 51, 183
Natural Law (Law of Nature), American Law and, 56;
antagonistic to historical method, 53;
confusing past with present, 43;
equality of man, 54-56;
equality of sex, 90;
feudalism, 62, 65;
French history, 47, 48, 50, 53;
French Law, 56;
Greek interpretation of, 44;
Grotian system, 56, 58, 59, 64-66;
incorporated with Roman Law, 36, 37;
influence of Stoics, 32, 33;
Modern International Law, 56-60;
most critical period, 50;
modern society, 54;
occupancy, 145-147, 153;
origin of, 31, 32;
private property, 164;
Rousseau on, 51;
slavery, 95;
territorial sovereignty, 60-63;
Testamentary Law, 103, 104
Occupancy, 144, 145;
in Roman Law, 145
Pascal, _Provincial Letters_, 207
Prescriptions, 167, 168;
and Canon Law, 168
Primogeniture, Celtic customs, 141, 142;
feudal system, 135-137;
Hindoo Law, 134, 137, 141;
Mahometan Law, 142;
Roman Law, 133, 134
Property, natural modes of acquiring, 144
Property Law, ancient Germanic, 165,
ancient Sclavonic, 165;
descent in Middle Ages, 132;
Indian Law, 165;
origin of, 145;
possession, 170, 172;
private, ancient forms of transfer, 160, 162-164;
Roman, 60, 66, 166;
Cessio in Jure, 170;
Edictum Perpetuum, 37;
Emphyteusis, 175-178;
Gaius on, 174;
Justinian, 174;
law of persons and things, 152;
mancipation, 163, 169;
possessory interdicts, 171;
Praetor's interdict, 172;
Res Mancipi, 160-164, 173;
Res Nec Mancipi, 164;
system of farming, 176;
usucapion, 167, 169, 173
Roman Law, _see_ separate headings Contracts, Criminal, Property,
Occupancy, Testamentary;
Decemviral Law, 20;
definition of inheritance, 107;
end of period of jurists, 40;
influence of Praetor, 38;
intestacy, 127-130;
law of inheritance, 111;
Leges Corneliae, 24, 25;
Leges Juliae, 25;
marriage, 91;
obligation in, 190, 191, 195, 197;
Pandects of Justinian, 39;
powers of Praetor, 37, 39;
Praetorian edict, 24, 25;
Responsa Prudentum, 20, 21, 24;
reverence of Romans for, 22;
Statute Law, 25;
Twelve Tables, 1, 8, 9, 12, 20
Rousseau, on Social Contract, 181
Savigny, 171;
on occupancy, 150
Slavery, American opinions of, 96;
influence of Law of Nature upon, 97;
Roman system, 95-97
Status, definition of, 100
Testamentary Law, adoption and testation, 114, 115;
Church's influence upon, 102;
corporation, aggregate and sole, 110;
Hindoo Law, 113, 114;
Hindoo compared with Roman, 113;
Law of Nature, 103, 104;
Roman Law, 111, 112, 117-123;
mancipation, 120, 123;
Praetorian testament, 123-125;
Twelve Tables, 112, 119, 122;
Roman family, agnatic and cognatic relationship, 86-89;
duties and rights of father, 85;
effects of Christianity, 92;
family, the basis of State, 75, 76;
kinship, 86, 88;
modification of parental privileges, 84;
origin of contract in, 99;
origin of law of persons, 89;
parental powers, 80-82, 88
Theology, and Jurisprudence, 208-210;
moral, 204, 205
Theories, based on Roman doctrine, Bentham, 69;
Blackstone, 67;
differing from Roman Glossators, annotations of, 67;
Grotius, 67;
Jurisprudence, dissatisfaction with, 70;
Locke, 67;
Montesquieu, 68;
patriarchal, 72-75
Universal succession, 106;
in Roman Law, 106, 107
"Universatis Juris," 105
Village communities, Indian, 153, 154, 156, 158;
Indian, compared with Roman gens, 155;
Indian, Elphinstone, _History of India_, 155, 156;
Russian 157
Women, ancient rules defeated by Natural Law, 90;
Canon Law, 93;
English Common Law, 93, 94;
Roman family, 90, 91;
gradual independence under Roman Law, 91, 92;
Roman, perpetual tutelage of, 90;
under Roman Law, 89, 90;
subordination to husband in Middle Ages, 92;
subordination of Roman to relations, 90
MADE AT THE
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