Ancient law : its connection with the early history of society and its relation to modern ideas

This is a digital copy of a book that was preserved for generations on library shelves before it was carefully scanned by Google as part of a project
to make the world's books discoverable online.

It has survived long enough for the copyright to expire and the book to enter the public domain. A public domain book is one that was never subject
to copyright or whose legal copyright term has expired. Whether a book is in the public domain may vary country to country. Public domain books
are our gateways to the past, representing a wealth of history, culture and knowledge that's often difficult to discover.

Marks, notations and other marginalia present in the original volume will appear in this file - a reminder of this book's long journey from the
publisher to a library and finally to you.

Usage guidelines

Google is proud to partner with libraries to digitize public domain materials and make them widely accessible. Public domain books belong to the
public and we are merely their custodians. Nevertheless, this work is expensive, so in order to keep providing this resource, we have taken steps to
prevent abuse by commercial parties, including placing technical restrictions on automated querying.

We also ask that you:

+ Make non-commercial use of the files We designed Google Book Search for use by individuals, and we request that you use these files for
personal, non-commercial purposes.

+ Refrain from automated querying Do not send automated queries of any sort to Google's system: If you are conducting research on machine
translation, optical character recognition or other areas where access to a large amount of text is helpful, please contact us. We encourage the
use of public domain materials for these purposes and may be able to help.

+ Maintain attribution The Google "watermark" you see on each file is essential for informing people about this project and helping them find
additional materials through Google Book Search. Please do not remove it.

+ Keep it legal Whatever your use, remember that you are responsible for ensuring that what you are doing is legal. Do not assume that just
because we believe a book is in the public domain for users in the United States, that the work is also in the public domain for users in other
countries. Whether a book is still in copyright varies from country to country, and we can't offer guidance on whether any specific use of
any specific book is allowed. Please do not assume that a book's appearance in Google Book Search means it can be used in any manner
anywhere in the world. Copyright infringement liability can be quite severe.

About Google Book Search

Google's mission is to organize the world's information and to make it universally accessible and useful. Google Book Search helps readers
discover the world's books while helping authors and publishers reach new audiences. You can search through the full text of this book on the web

at |http : //books . google . com/

HI

3 2044 049 682 206

L "^^

\

>'

^,"

■Q/'

yH 2

;

I

4:!.-

^ ANCIENT Lit : •''"'■''''M

ITS CONNEOTION
WITH THE BAELT HISTOBT OF SOCIETT, KSil> ITS BELATION TO

MOBEEN IDEAS.

BY HENEY SUMNEE MAINE,

KJBAsmB cnr jtoisvbusisos ars> chs oxtil law at thi middlb nicru, akd vobicsblt bxoius
nonsBOB ov xhb cnrn, law nr vhb uitiybbsztt ov cahbbisob.

LONDON!

JOHN MFEEAT, ALBEMAELE 8TEEET.

1861.

lY'^l

M^i^A

Le ip- <- ■ /^^

/

f

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 rela-
tion of those ideas to modem 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 modem
society is even now controlled. The necessity of
taking the Roman law as a typical system, has com-
pelled the author to draw from it what may appear
a disproportionate number of his illustrations; but it
has not been his intention to write a treatise on Ro-
man jurisprudence, and he has as much as possible
avoided aU discussions which might give that appear-

VI PREFACE.

ance to his work. The space allotted in the Third
and Fourth Chapters to certain philosophical theories *
of the Roman Jurisconsults, has been appropriated to
them for two reasons. In the first place, those theo-
ries appear to the author to have had a much wider
and more permanent influence on the thought and
action of the world than is usually supposed. Se-
condly, 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 specu-
lations.

H. S. M.

London : January, 1861.

CONTENTS.

Chap.

I. Ancient Codes

II. Legal Fictions

III. Law of Nature and Equity ....

IV. The Modern History of the Law of Nature
V. Primitive Society and Ancient Law

VI. The Early History of Testamentary Succession

VII. Ancient and Modern Ideas respecting Wills and

Successions

VJII. The Early History of Property
EX. The Early History of Contract
X. The Early History of Delict and Crime

Paoi
1

21

44

73

113

171

215
244
304
367

ERRATA.

Page 6, line 9 from top, for " circumatanced " read " circumstence "
16, line 11 from bottom, for •' attained" read "obtained "

ANCIENT LAW.

CHAPTER I.

ANCIENT CODES.

The most celebrated system of jurisprudence known
to the world begins, as it ends, with a Code. From
the commencement to the close of its history, the ex-
positors 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 re-
cognised at Rome. The theoretical descent of Roman
jurisprudence from a code, the theoretical ascrip-
tion of English law to immemorial unwritten tradi-
tion, were the chief reasons why the development of
their system differed from the development of ours.

/ ^

2 ANaENT CODES. chap. i.

Neither theory corresponded exactly with the facts,
but each produced consequences of the utmost im-
portance.

I need hardly say that the publication of the
Twelve Tables is not the earliest point at which we
can take up the history of law. The ancient Roman
code belongs to a class of which almost every civilised
nation in the world can show a sample, and which, so
far as the Roman and Hellenic worlds were con-
cerned, were largely diffused over them at epochs
not widely distant from one another. They appeared
under exceedingly similar circumstances, and were
produced, to our knowledge, by very similar causes.
Unquestionably, many jural phenomena lie behind
these codes and preceded them in point of time. Not
a few documentary records exist which profess to
give us information concerning the early phenomena
of law; but, until philology has effected a complete
analysis of the Sanskrit literature, our best sources
of knowledge are undoubtedly the Greek Homeric
poems, considered of course not as a history of actual
occurrences, but as a description, not wholly ideal-
ised, of a state of society known to the writer. How-
ever 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 meta-
physical conceptions which were not yet the subjects

CHAP. I. RUDIMENTARY JURAL IDEAS. D

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 in-
fluences. 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 re-
search into the primitive history of society and law ;
and they obscure the truth not only by diverting
attention from the only quarter in which it can be
found, but by that most real and most important
influence which, when once entertained and believed
in, they are enabled to exercise on the later stages of
jurisprudence.

B 2

4 ANCIENT CODES. chap. i.

The earliest notions connected with the conception,
now so fully developed, of a law or rule of life, are
those contained in the Homeric words " Themis " and
" Themistes." " Themis," it is well known, appears
in the later Greek pantheon as the Goddess of
Justice, but this is a modem 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 them-
selves, divinely dictated to the judge. Kings are
spoken of as if they had a store of " Themistes" ready
to hand for use; but it must be distinctly understood
that they are not laws, but judgments. " Zeus, or

CHAP. I. TIIEMISTES.

the human king on earth," says Mr.
History of Greece, " is not a law-mal
judge." He is provided with Themistes, but, con-
sistently mth 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 circumstancell^were
probably commoner in the simple mechanism of an-
cient society than they are now, and in the succes-
sion of similar cases awards are likely to follow and
resemble each other. Here we have the germ or
rudiment of a Custom, a conception posterior to that
of Themistes or judgments. However strongly we,
with our modern associations, may be inclined to lay
down a priori that the notion of a Custom must pre-
cede that of a judicial sentence, and that a judgment
must affirm a Custom or punish its breach, it seems
quite certain that the historical order of the ideas is
that in which I have placed them. The Homeric
word for a custom in the embryo is sometimes
" Themis" in the singular — more often " Dike," the
meaning of which visibly fluctuates between a "judg-
ment" and a " custom" or " usage." iNo/jto^, a Law,
so great and famous a term in the political voca-
bulary of the later Greek society, does not occur in
Homer.

II 3

(M

6 ANCIENT CODES. chat. i.

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 con-
ception 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 support-
ing every relation of life, every social institution. In
early law, and amid the rudiments of political
thought, symptoms of this belief meet us on all
sides. A supernatural presidency is supposed to
consecrate and keep together all the cardinal institu-
tions of those times, the State, the Race, and the
Family. Men, grouped together in the different re-
lations 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 >vith ordinary classical literature will
remember the aacra gentilicia^ which exercised so
important an influence on the early Roman law of

CHAP. I. BENTHAM'S ANALYSIS. 7

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 stu-
dent. Bentham, in his " Fragment on Government,"
and Austin, in his " Province of Jurisprudence De-
termined," resolve every law into a command of
the lawgiver, an obligation imposed thereby on the
citizen, and a sanction threatened in the event of
disobedience ; and it is further predicated of the
command^ which is the first element in a law, that
it must prescribe, not a single act, but a series or
number of acts of the same class or kind. The
results of this separation of ingredients tally exactly
with the facts of mature jurisprudence ; and, by a
little straining of language, they may be made to
correspond in form with all law, of all kinds, at all
epochs. It is not, however, asserted that the notion
of law entertained by the generality is even now
quite in conformity with this dissection ; and it is
curious that, the farther we penetrate into the primi-
tive history of thought, the farther we find ourselves

B 4

8 ANCIENT CODES. chap. i.

from a conception of law which at all resembles a
compound of the elements which Bentham deter-
mined. It is certain that, in the infancy of man-
kind, 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
Iby a higher power into the judge's mind at the
Jmoment of adjudication. It is of course extremely
difficult for us to realise a view so far removed
from us in point both of time and of association, but
it will become more credible when we dwell more
at length on the constitution of ancient society, in
which every man, living during the greater part of
his life under the patriarchal despotism, was practically
controlled in all his actions by a regimen not of law
but of caprice. I may add that an Englishman
should be better able than* a foreigner to appreciate
the historical fact that the " Themistes " preceded
any conception of law, because, amid the many in-
consistent theories which prevail concerning the cha-
racter of English jurisprudence, the most popular, or
at all events the one which most afiects practice, is
certainly a theory which assumes that adjudged

f ^

CHAP. I. CUSTOMARY LAW. 9

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 indiflferently 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 *' The-
mistes" 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 juris-
prudence 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. Gra-

/LAW ^\m\X

LIBRAiir.^

10 ANCIENT CODES. chap. t.

dually, as the impression of the monarch's sacredness
became weakened, and feeble members occurred in
the series of hereditary kings, the royal power de-
cayed, and at last gave way to the dominion of
aristocracies. If language so precise can be used of
the revolution, we might say that the office of the
king was usurped by that council of chiefs which
Homer repeatedly alludes to and depicts. At all
events from an epoch of kingly rule we come every-
where in Europe to an era of oligarchies; and even
where the name of the monarchical functions does
not absolutely disappear, the authority of the king
is reduced to a mere shadow. He becomes a mere
hereditary general, as in LacedaBmon, a mere func-
tionary, as the King Archon at Athens, or a mere
formal hierophant, like the Rex Sacrijiculus at Rome.
In Greece, Italy, and Asia Minor, the dominant
orders seem to have universally consisted of a
number of families united by an assumed relation-
ship in blood, and, though they all appear at first
to have laid claim to a quasi-sacred character, their
strength does not seem to have resided in their
pretended sanctity. Unless they were prematurely
overthrown by the popular party, they all ulti-
mately approached very closely to what we should
now understand by a political aristocracy. The
changes which society underwent in the commu-
nities of the further Asia occurred of course at

CHAP. I. ARISTOCRATIC PERIOD. 11

periods long anterior in point of time to these revo-
lutions 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
peninsiila 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 sacer-
dotal order; and the ultimate result at which we
arrive is, a monarch enjoying great power, but cir-
cumscribed by the privileges of a caste of priests.
With these 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 itiay be considered as true, if not of all man-
kind, at aU events of all branches of the Indo-Euro-
pean family of nations.

The important point for the jurist is that these
aristocracies were universally the depositaries and

12 ANCIENT CODES. chap. r.

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
pi?ogress 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 know-
ledge 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 sub-
stantive aggregate, and are assumed to be precisely
known to the aristocratic order or caste. Our au-
thorities 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 usur-
pation 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

CHAP. I. CUSTOMARY LAW. 13

possible, insured by confiding them to the recollec-
tion 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 exclu-
sively to a privileged minority, whether a caste, an
aristocracy, a priestly tribe, or a sacerdotal college,
is true unwritten law. Except this, there is no such
thing as unwritten law in the world. English case-law
is sometimes spoken of as unwritten, and there are
some English theorists who assure us that if a code
of English jurisprudence were prepared we should
be turning unwritten law into written — a conversion,
as they insist, if not of doubtful policy, at aU events
of the greatest seriousness. Now, it is quite true
that there was once a period at which the English
common law might reasonably have been termed un-
written. 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 ex-
ceedingly 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

14 ANCIENT CODES. chap. i.

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 ad-
judication. But at no stage of this process has it
any characteristic which distinguishes it from wiitten
law. It is written case-law, and only diflferent 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 juris-
prudence. We arrive at the era of Codes, those
ancient codes of which the Twelve Tables of Rome
were the most famous specimen. In Greece, in Italy,
on the Hellenised sea-board of Western Asia, these
codes 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 oli-
garchy. It must not for a moment be supposed that
the refined considerations now urged in favour of what

CHAP. I. ANCIENT CODES. 15

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 popu-
larity, the codes were certainly in the main a direct
result of the invention of writing. Inscribed tablets
were seen to be a better depositary of law, and a
better security for its accurate preservation, than the
memory of a number of persons however strength-
ened 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 S3nnmetrical 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 arrange-
ment, 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 ex-
perience in the art of law-making. The fragments of

16 ANCIENT CODES. chap. i.

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 collec-
tions, both in the East and in the West, to show that
they mingled up religious, civil, and merely moral
ordinances, without any regard to diflferences 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 modem 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
^ • 'attained them sooner or later, and, but for the great
interruption in the history of jurisprudence created
by feudalism, it is likely that all modem 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 oli-
garchical monopoly, and a code was nearly universally
obtained early in the history of the Commonwealth.

CHAP. I. LAWS OF MENU. 17

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 eflfect of
making individual communities larger and more nu-
merous 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 cha-
racter. 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 learn-
ing 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 en-
shrines many genuine observances of the Hindoo race,
but the opinion of the best contemporary orientalists
is, that it does not, as a whole, represent a set of rules

c

18 ANCIENT CODES. chap. i.

ever actually administered in Hindostan. It is, in
great part, an ideal picture of that which, in the view
of the Brahmins, ought to be the law. It is consistent
with human nature and with the special motives of
their authors, that codes like that of 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 emana-
tion from the supreme God ; but the compilation which
bears his name, though its exact date is not easily dis-
covered, 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

CHAF. I. VALUE OF THE CODES. 19

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 su-
perstitious reasons for their permanence. A process
then commences which may be shortly described
by saying that usage which is reasonable generates
usage which is unreasonable. Analogy, the^most
valuable of instruments in the maturity of jurispru-
dence, is the most dangerous of snares in its infancy.
ProhibiticMis 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 prohi-
bition is extended to all food resembling it, though
the resemblance occasionally depends on analogies
the most fanciful. So, again, a wise provision for

c 2

20 ANCIENT CODES. chap. x.

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 na-
,tional existence degenerates into the most disastrous
; and blighting of all human institutions — Caste. The
fate of the Hindoo law is, in fact, the measure of the
value of the Roman code. Ethnology shows us that
the Romans and the Hindoos sprang from the same
original stock, and there is indeed a striking resem-
blance between what appear to have been their
original customs. Even now, Hindoo jurisprudence
has a substratum of forethought and sound judg-
ment, but irrational imitation has engrafted in it an
immense apparatus of cruel absurdities. From these
comfptions the Romans were protected by their code.
It was compiled while usage was still wholesome, and
a hundred years afterwards it might have been too
late. The Hindoo law has been to a great extent
embodied in writing, but, ancient as in one sense are
the compendia which still exist in Sanskrit, they
contain ample evidence that they were drawn up
after the mischief had been done. .We are not of
course entitled to say that if the Twelve Tables had
not been published the Romans would have been con-
demned to a civilisation as feeble and perverted as
that of the Hindoos, but thus much at least is certain,
that with their code they were exempt from the very
chance of so unhappy a destiny.

CHAP. II. LEGAL FICTIONS. 21

CHAP. 11.
LEGAL FICTIONS.

When primitive law has once been embodied in a
Code, there is an end to what may be called its spon-
taneous development. Henceforward the changes
effected in it, if effected at all, are effected deliberately
and from without. It is impossible to suppose that
the customs of any race or tribe remained unaltered
during the whole of the long — in some instances
the immense — interval between their declaration
by a patriarchal monarch and their publication in
writing. It would be unsafe too to af&rm 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 men-
tal 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

c 3

22 LEGAL FICTIONS. chap. ii.

other than those which were aimed at in the primitive
times.

It may seem at first sight that no general proposi-
tions worth trusting can be elicited 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 pro-
gressive societies begins to make itself felt. It is
only with the progressive societies that we are con- -
cerned, and nothing is more remarkable than their
extreme fewness. In spite of overwhelming evidence,
it is most difficult for a citizen of western Europe to
bring thoroughly home to himself the truth that the
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 specula-
tions, would be materially aflPected, 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 par-
ticle of desire that its civil institutions should be
improved since the moment when external complete-
ness was first given to them by their embodiment in
some permanent record. One set of usages has occa-

CHAP. u. STATIONARY AND PROGRESSIVE SOdETIES. 23

sionally been violently overthrown and superseded by
another; here and there a primitive code, pretending
to a supernatural origin, has been greatly extended,
and distorted into the most surprising forms, by the
perversity of sacerdotal commentators; but, except
in a small section of the world, there has been nothing
like the gradual amelioration of a legal system.
There has been material civilisation, but, instead of
the civilisation expanding the law, the law has limited
the civilisation. The study of races in their primi-
tive 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 pu-
nished by ciyil penalties, and that the violation of a
civil duty exposes the delinquent to divine correction.
In China this point has been past, but progress seems
to have been there arrested, because the civil laws are
coextensive with aU 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 con-
siderations urged at the end of the last chapter. It

c 4

24 LEGAL FICTIONS. chap. ii.

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 ac-
curate 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 imderwent is
tolerably well ascertained. From its commencement
to its close, it was progressively modified for the
better, or for what the authors of the modification
conceived to be the better, and the course of improve-
ment was continued through periods at which all the
rest of human thought and action materially slackened
its pace, and repeatedly threatened to settle down into
stagnation.

I confine myself in what follows to the progressive
societies. With respect to them it may be laid down
that social necessities and social opinion are always
more or less in advance of Law. We may come inde-
finitely near to the closing of the gap between them,
but it has a perpetual tendency to reopen. Law is
stable ; the societies we are speaking of are progres-
sive. The greater or less happiness of a people
depends on the degree of promptitude with which the
gulf is narrowed.

A general proposition of some value may be ad-

CHAP. II. FICTIONS, EQUITY, AND LEGISL.

vanced with respect to the agencies by wl
brought into harmony with society. These"
mentalities seem to me to be three in number, Legal
Fictions, Equity, and Legislation. Their historical
order is that in which I have placed them. 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, refor-
matory of the civil law, are older than any equitable
jurisdiction. My own belief is that remedial Equity
is everjrwhere 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 exer-
cise a sustained and substantial influence in trans-
forming the original law.

I employ the word "fiction," in a sense consider-
ably wider that 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 plaintifi^ which the defendant was not
allowed to traverse; such, for example, as an aver-

V

26 LEGAL FICTIONS. chap. n.

ment that the plaintiff was a Roman citizen, when in
truth he was a foreigner. The object of these " fic-
tiones " was, of course, to give jurisdiction, and they
therefore strongly resembled the allegations in the
writs of the English Queen's Bench and Exchequer,
by which those Courts contrived to usurp the juris-
diction of the Common Pleas : — the allegation that
the defendant was in custody of the king's mar-
shal, 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 un-
dergone alteration, its letter remaining imchanged,
its operation being modified. The words, therefore,
include the instances of fictions wjiich 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 parti-
cularly 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

CHAP. u. LEGAL FICTIONS. 27

always present. At a particular stage of social pro-
gress 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 under-
stand how society would ever have escaped from its
swaddling-clothes, and taken its first steps towards
civilisation. We must, therefore, not suffer our-
selves 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 igno-
rance of their peculiar office in the historical deve-
lopment 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 ad-
mittedly 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 re-
mains 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

28 EQUITT. CHAP. II,

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. K the English law is ever to assume
an orderly distribution, it wiU 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
Prastors 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 preroga-
tive 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 appli-
cation independently of the consent of any external
body, belongs to a much more advanced stage of

CHAP. If. LEGISLATION. 29

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 in-
strumentalities. It dififers from Legal Fictions just as
Equity diflfers 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 legis-
lature and not to that of the principles on which the
legislature acted; and thus they differ from rules of
Equity, in the technical sense of the word, which pre-
tend to a paramount sacredness entitling them at
once to the recognition of the courts even without
the concurrence of prince or parliamentary assem-
bly. It is the more necessary to note these differ-
ences, because a student of Bentham would be apt to

30 LEGAL FICTIONS. chap. ii.

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 ndnds of most law-
yers; 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 regu-
larly developed body of rules examples of legal fxi-
tions^ which at once betray their true character to the
modern observer. In the two instances which I pro-
ceed to consider, the nature of the expedient em-
ployed is not so readily detected. The first authors
of these fictions did not perhaps intend to innovate,
certainly did not wish to be suspected of innovating.
There are, moreover, and always have been, persons
who refuse to see any fiction in the process, and
conventional language bears out their refusal. No
examples, therefore, can be better calculated to illus-
trate 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 con-
cealing the transformation.

CKAF. 11. CASE-LAW. 31

We in England are well accustomed to the exten-
sion, modification, and improvement of law by a
machinery which, in theory, is incapable of altering
one jot or one line of existing jurisprudence. The
process by which this virtual legislation is effected is
not so much insensible as unacknowledged. With
respect to that great portion of our legal system
which is enshrined in cases and recorded in law
reports, we habitually employ a double language and
entertain, as it would appear, a double and incon-
sistent set of ideas. When a group of facts come
before an English Court for adjudication, the whole
course of the discussion between the judge and the
advocates assumes that no question is, or can be,
raised which will call for the application of any
principles but old ones, or of any distinctions but
such as have long since been allowed. It is taken
absolutely for granted that there is somewhere a rule
of known law which will cover the facts of the
dispute now litigated, and that, if such a rule be not
discovered, it is only that the necessary patience,
knowledge, or acumen is not forthcoming to detect it.
Yet the moment the judgment 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

32 LEGAL FICTIONS. chap. n.

more elastic. In fact they have been changed. A
clear addition has been made to the precedents, and
the canon of law elicited by comparing the prece-
dents is not the same with that which would have
been obtained if the series of cases had been curtailed
by a single example. The fact^that the old rule has
been repealed, and that a new one has replaced it,
eludes us, because we are not in the habit of throwing
into precise language the legal formulas which we
derive from the precedents, so that a change in their
tenor is not easily detected unless it is violent and
glaring. I shall not now pause to consider at length
the causes which have led English lawyers to ac-
quiesce in these curious anomalies. Probably it will
be found that originally it was the received doctrine
that somewhere, in nuhihus or in gremio magisiratuum^
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 founda-
tion. 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.

CHAP. IX. ANSWERS OF THE LEARNED. 33

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 prac-
titioners have so expressed themselves as to convey
the paradoxical proposition that, except by Equity
and Statute law, nothing has been added to the basis
since it was first constituted. We do not admit that
our tribunals legislate; we imply that they have
never legislated ; and yet we maintain that the rules
of the English common law, with some assistance
from the Court of Chancery and from Parliament,
are coextensive with the complicated interests of
modem society.

A body of law bearing a very close and very in-
structive resemblance to our case-law in those par-
ticulars which I have noticed, was known to the
Romans under the name of the Responsa Prudentum,
the " answers of the learned in the law." The form of
these Responses varied a good deal at 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 ex-
press rule. It overrode all glosses and comments,

D

34 LEGAL FICTIONS. chap. ii.

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 univer-
sally acknowledged greatness clothed a Book of

CHAP. II. ANSWERS OF THE LEARNED. B6

Kesponses 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 foiyi-
dation on which a further body of jurisprudence
might rest. The Responses of the early lawyers were
not however published, in the modem sense, by
their author. They were recorded and edited by
his pupils, and were not therefore in all probability
arranged according to any scheme of classification.
The part of the students in these publications must
be carefully noted, because the service they rendered
to their teacher seems to have been generally repaid
by his sedulous attention to the pupils' education.
The educational treatises called Institutes or Com-
mentaries, which are a later fruit of the duty then
recognised, are among the most remarkable features
of the Roman system. It was apparently in these
Institutional works, and not in the books intended
for trained lawyers, that the jurisconsults gave to the
public their classifications and their proposals for
modifying and improving the technical phraseology.
In comparing the Roman Responsa Prudentum with
their nearest English counterpart, it must be care-
fully borne in mind that the authority by which this
part of the Roman jurisprudence was expounded was
not the benck^ but the bar. The decision of a Roman
tribunal, though conclusive in the particular case,
had no ulterior authority except such as was given

D 2

36 LEGAL FICTIONS. chap. ii.

by the professional repute of the magistrate who hap-
pened 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 condi-
tion 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 alwa5'^s 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

ciiAP. 11. ANSWERS OF THE LEARNED. 37

have become as minute, technical, and difficult as any
system which has since prevailed. Again, a conse-
quence which might have 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 Mursena," 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 deve-
lopment of the Roman law was first efiected, were the

D 3

38 LEGAL FICTIONS. chap, ii.

source of its characteristic excellence, its early wealth
in principles. The growth and exuberance of prin-
ciple was fostered, in part, by the competition among
the expositors of the law, an influence wholly un-
known where there exists a Bench, the depositaries
intrusted by king or commonwealth with the prero-
gative of justice. But the chief agency, no doubt,
was the uncontrolled multiplication of cases for legal
decision. The state of facts which caused genuine
perplexity to a country client was not a whit more
entitled to form the basis of the jurisconsult's Re-
sponse, or legal decision, than a set of hypothetical
circumstances propounded by an ingenious 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 ad-
judicated on his client's case, unless that magistrate
happened to rank above him in legal knowledge or
the esteem of his profession. I do not, indeed, mean
it to be inferred that he would wholly omit to con-
sider his client's advantage, for the client was in
earlier times the great lawyer's constituent and at a
later period his paymaster, but the main road to the
rewards of ambition lay through the good opinion of
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

CHAP. n. ANSWERS OP THE LEARNED. 39

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 ques*
tions. Where the data can be multiplied at pleasure,
the facilities for evolving a general rule are immensely
increased. As the law is administered among our-
selves, 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 an-
other. When a difficulty came for opinion before
the jurisconsult, there was nothing to prevent a per-
son 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 doubt-
less contemplate the circumstances as governed by a
great principle, or included in a sweeping rule.

^ /

i

40 LEGAL FICTIONS. chap. ii.

Nothing like this has ever been possible among our-
selves, 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
Eoman jurisprudence for the foundation of their civil
institutions. They built the debris of the Roman
law into their walls; but in the materials and work-
manship 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 im-
pressed on the Roman jurisprudence; and through
all the earlier part of it, it was by the Responses of
the jurisconsults that the development of the law was
mainly carried on. But as we approach the fall of
the republic there are signs that the Responses are
assuming a form which must have been fatal to their
farther expansion. They are becoming systematised
and reduced into compendia. Q. Mucins Scaevola, the

CHAP. II. LATER JURISCONSULTS. 41

Pontifex, is said to have published a manual of the
entire CivU 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 Praetor, had risen into
credit as the principal engine of law reform, and
L. Cornelius Sylla, by causing to be enacted the
great group of statutes called the Leges Comelice^ 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 modem
world, must obviously have altered fundamentally
the characteristics of the legal profession and the
nature of its influence on Eoman law. At a later
period another school of jurisconsults arose, the great
lights of jurisprudence for all time. But Ulpian
and Paulus, Gains and Papinian, were not authors
of Responses. Their works were regular treatises
on particular departments of the law, more especially
on the Praetor's Edict.

The Equity of the Romans and the Praetorian Edict
by which it was worked into their system, will be
considered in the next chapter. Of the Statute Law

42 LEGAL FICTIONS. chap, ii,

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 d3masties.
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 Comeliae;
Julius Caesar contemplated vast additions to the
Statute Law; Augustus caused to be passed the all-
important group of Leges Juliaa; and among later
emperors the most active promulgators of constitu-
tions are princes who, like Constantine, have the
concerns of the world to readjust. The true period
of Roman Statute Law does not begin tiU the esta-
blishment 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

CHAP. II. ROMAN STATUTES. 43

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 be-
ing ; a permanent court of appeal and a collection of
approved commentaries will very shortly be added;
and thus we are brought close on the ideas of our
own day.

44 EQUITY. CHAP. in.

CHAP. 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 pre-
sently be seen, was one (though only one) of the
designations by which this agent of legal change was
known to the Roman jurisconsults. The jurispru-
dence of the Court of Chancery, which bears the
name of Equity in England, could only be adequately
discussed in a separate treatise. It is extremely
complex in its texture and derives its materials from
several heterogeneous sources. The early ecclesias-
tical chancellors contributed to it, from the Canon
Law, many of the principles which lie deepest in its
structure. The Roman law, more fertile than the
Canon Law in rules applicable to secular disputes,
was not seldom resorted to by a later generation of
Chancery judges, amid whose recorded dicta we of-
ten find entire texts from the Corpus Juris Civilis

CHAF. m. EQUITY. 45

imbedded, with their terms unaltered, though their
origin is never acknowledged. Still more recently, and
particularly at the middle and during the latter half
of the 18th century, the mixed systems of jurispru-
dence and morals constructed by the publicists of the
Low Countries appear to have been much studied
by English lawyers, and from the chancellorship of
Lord Talbot to the commencement of Lord Eldon's
chancellorship these works had considerable effect on
the rulings of the Court of Chancery. The system,
which obtained its ingredients from these various
quarters, was greatly controlled in its growth by the
necessity imposed on it of conforming itself to the
analogies of the common law, but it has always an-
swered the description of a body of comparatively
novel legal principles claiming to override the older
jurisprudence of the country on the strength of an
intrinsic ethical superiority.

The Equity of Rome was a much simpler structure,
and its development from its first appearance can
be much more easily traced. Both its character and
its history deserve attentive examination. It is the
root of several conceptions which have exercised
profound influence on human thought, and through
human thought have seriously affected the destinies
of mankind.

The Romans described their legal system as con-
sisting of two ingredients. " All nations," says the

46 LAW OF NATIONS AND OF NATURE. chap. hi.

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 PrsBtor was
supposed to have worked into Roman jurisprudence.
Elsewhere it is styled more simply Jus Naturale, or
the Law of Nature ; and its ordinances are said to
be dictated by Natural Equity (naturalis cequitas)
as well as by natural reason. I shall attempt to
discover the origin of these famous phrases, Law of
Nations, Law of Nature, Equity, and to determine
how the conceptions which they indicate are related
to one another.

The most superficial student of Roman history
must be struck by the extraordinary degree in which
the fortunes of the republic were affected by the
presence of foreigners, under different names, on her
soil. The causes of this immigration are discernible
enough at a later period, for we can readily under-
stand why men of all races should flock to the mistress
of the world ; but the same phenomenon of a large
population of foreigners and denizens meets us in

CHAP. III. LAW OF NATIONS AND OP NATURE. 47

the very earliest records of the Roman State. No
doubt^ the instability of society in ancient Italy,
composed as it was in great measure of robber tribes,
gave men considerable inducement to locate them-
selves in the territory of any community strong
enough to protect itself and them from external
attack, even though protection should be purchased at
the cost of heavy taxation, political disfranchisement,
and much social humiliation. It is probable, however,
that this explanation is imperfect, and that it could
only be completed by taking into account those active
commercial relations which, though they are little
reflected in the military traditions of the republic,
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 Jbetween a stubborn nationality and an alien
population. Nothing like this has been seen in
modem times; on the one hand, because modern
European communities have seldom or never received
any accession of foreign immigrants which was large
enough to make itself felt by the bulk of the native
citizens, and on the other, because modem states,
being held together by allegiance to a king or political
superior, absorb considerable bodies of immigrant

48 LAW OF NATIONS AND OF NATURE. chap. iii.

settlers with a quickness unknown to the ancient
world, where the original citizens of a commonwealth
always believed themselves to be united by Idnship in
blood, and resented a claim to equality of privilege
as a usurpation of their birthright. In the early
Roman republic the principle of the absolute ex-
clusion of foreigners pervaded the Civil Law no less
than the Constitution. The alien or denizen could
have no share in any institution supposed to be coeval
with the State. He could not have the benefit of
Quiritarian law. He could not be a party to the
nexum which was at once the conveyance and the
contract of the primitive Romans. He could not sue
by the Sacramental Action, a mode of litigation of
which the origin mounts up to the very infancy of
civilisation. Still, neither the interest nor the security
of Rome permitted him to be quite outlawed. All
ancient communities ran the risk of being overthrown
by a very slight disturbance of equilibrium, and the
mere instinct of self-preservation would force the
Romans to devise some method of adjusting the rights
and duties of foreigners, who might otherwise — and
this was a danger of real importance in the ancient
world — have decided their controversies by armed
strife. Moreover, at no period of Roman history
was foreign trade entirely neglected. It was there-
fore probably half as a measure of police and half in
furtherance of commerce that jurisdiction was first

CHAP. III. LAW OP NATIONS. 49

assumed in disputes to which the parties were either
foreigners or a native and a foreigner. The as-
sumption of such a jurisdiction brought with it
the immediate necessity of discovering some prin*
ciples on which the questions to be adjudicated upon
could be settled, and the principles applied to this
object by the Roman lawyers were eminently character-
istic of the time. They refused, as I have said before,
to decide the new cases by pure Roman Civil Law.
They refused, no doubt because it seemed to involve
some kind of degradation, to apply the law of the par-
ticular State from which the foreign litigant came.
The expedient to which they resorted was that of se-
lecting the rules of law common to Rome and to the
different Italian communities in which the immigrants
were bom. In other words, they set themselves to form
a system answering to the primitive and literal meaning
of Jus Gentium, that is. Law common to all Nations.
Jus Gentium was, in fact, the sum of the common
ingredients in the customs of the old Italian tribes,
for they were all the nations whom the Romans had
the means of observing, stnd who sent successive
swarms of immigrants to Roman soil. Whenever a
particular usage was seen to be practised by a large
number of separate races in common it was set down
as part of the Law common to all Nations, or Jus
Gentium. Thus, although the conveyance of property
was certainly accompanied by very different forms in

60 LAW OF NATIONS. chap. iii.

the diflFerent commonwealths surrounding Rome, the
abtual 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 col-
lection of rules and principles, determined by ob-
servation to be common to the institutions which
prevailed among the various Italian tribes.

The circumstances of the origin of the Jus Gentium
are probably a sufficient safeguard against the mis-
take of supposing that the Roman lawyers had
any special respect for it. It was the fruit in part
of their disdain for all foreign law, and in part of
their disinclination to give the foreigner the advan-
tage of their own indigenous Jus Civile. It is true
that we, at the present day, should probably take a
very diflFerent view of the Jus Gentium, if we were
performing the operation which was eflfected by the

CHAP. m. LAW OP NATIONS. 5i

Roman jurisconsults. We should attach some vague
superiority or precedence to the element which we
had thus discerned uaderlying and pervading so
great a variety of usage. We should have a sort of
respect for rules and principles so universal. Per-
haps we should speak of the common ingredient
as being of the essence of the transaction into which it
entered, and should stigmatise the remaining appa-
ratus of ceremony, which varied in different com-
munities, 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 com-
mon 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 re-
sults to which modem ideas conduct the observer
are, as nearly as possible, the reverse of those
which were instinctively brought home to the primi-
tive Roman. What we respect or admire, he dis-
liked or regarded with jealous dread. The parts of
jurisprudence which he looked upon with affection
were exactly those which a modem theorist leaves
out of consideration as accidental and transitory;
the solemn gestures of the mancipation ; the nicely
adjusted questions and answers of the verbal con-
tract; the endless formalities of pleading and pro-

B 2

52 LAW OF NATURE. cuap. hi.

cedure. 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 modem estimate of the
Jus Gentium differs from that which has just been
described, is that both modem jurisprudence and
modern philosophy have inherited the matured views
of the later jurisconsults on this subject. There did
come a time when, from an ignoble appendage of the
Jus Civile, the Jus Gentium came to be considered a
great though as yet imperfectly developed model to
which all law ought as far as possible to conform.
This crisis arrived when the Greek theory of a Law of
Nature was applied to the practical Roman adminis-
tration of the Law common to all Nations.
y ' The Jus Naturale, or Law of Nature, is simply the
Jus Gentium or Law of Nations seen in the light of
a peculiar theory. An unfortunate attempt to dis-
criminate them was made by the jurisconsult Ulpian,
with the propensity to distinguish characteristic of a
lawyer, but the language of Gains, a much higher au-
thority, and the passage quoted before from the Insti-
tutes leave no room for doubt, that the expressions
were practically convertible. The difference be-

ciiAF. m. NATURE. 53

tween them was entirely historical, and no distinction
in essence could ever be established between them.
It is almost unnecessary to add that the confusion
between Jus Gentium, or Law common to all Nations,
and international law is entirely modern. The classi-
cal expression for international law is Jus Feciale or
the law of negotiation and diplomacy. It is, however,
unquestionable that indistinct impressions as to the
meaning of Jus Gentium had considerable share in
producing the modern theory that the relations
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 ^vcrt^,
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 move-
ment, 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

E 3

54 NATURE. chap, hi,

manifestation of a principle. Afterwards, the later
Greek sects, returning to a path from which the
greatest intellects of Greece had meanwhile strayed,
added the moral to the physical world in the con-
ception of Nature. They extended the term 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 phe-
nomena of human society which they understood by
Nature, but these phenomena considered as resolv-
able into some general and simple laws.

Now, just as the oldest Greek theorists supposed
that the sports of chance had changed the material
universe from its simple primitive form into its
present heterogeneous condition, so their intellectual
descendants imagined that but for untoward acci-
dent the human race would have conformed itself
to simpler rules of conduct and a less tempestuous
life. To live according to nature game to be con-
sidered 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 dis-
orderly 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 subju-

CHAP. m. THE STOICS. 65

gation of Greece that philosophy made instantaneous
progress in Roman society. It possessed natural
fascinations for the powerful class who, in theory at
least, adhered to the siihple habits of the ancient
Italian race, and disdained to surrender themselves
to the innovations of foreign fashion. 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,
firom 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 Romans lawyers
figured. We have abundant proof that, there being
substantially but two professions in the Roman re-
public, the military men were generally identified
with the party of movement, but the lawyers were
tmiversally at the head of the party of resistance.

The alliance of the lawyers with the Stoic philo-
sophers lasted through many centuries. Some of
the earliest names in the series of renowned juris-
consults are associated with Stoicism, and ultimately
we have the golden age of Roman jurisprudence
fixed by general consent at the era of the Antonine
Caesars, the most famous disciples to whom that
philosophy has given a rule of life. The long diffu-

B 4

56 LAW OF NATURE. chap.jii.

sion 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 juris-
consults are scarcely intelligible, unless we use the
Stoic tenets as our key ; but at the same time it is a
serious, though a very conunon, error to measure
the influence of Stoicism on Roman law by counting
up the number of legal rules which can be con-
fidently affiliated on Stoical dogmas. It has often
been observed that the strength of Stoicism resided
not in its canons of conduct, which were often re-
pulsive or ridiculous, but in the great though vague
principle which it inculcated of resistance to passion.
Just in the same way the influence on jurisprudence
of the Greek theories, which had their most distinct
expression in Stoicism, consisted not in the num-
ber of specific positions which they contributed to
Roman law, but in the single fundamental assump-
tion which they lent to it. After Nature had
become a household word in the mouths of the
Romans, the belief gradually prevailed among the
Roman lawyers that the old Jus Gentium was in
fact the lost code of Nature, and that the Praetor
in framing an Edictal jurisprudence on the prin-
ciples of the Jus Gentium was gradually restoring a
type from which law had only departed to deteriorate.
The inference from this belief was immediate that it

CDAP. III. EQUITY. 67

was the Praetor's duty to supersede the Civil Law as
much as possible by the Edict, to revive as far as
might be the institutions by which Nature had go-
verned man in the primitive state. Of course there
were many impediments to the amelioration of law by
this agency. There may have been prejudices to over-
come even in the legal profession itself, and Roman
habits were far too tenacious to give way at once
to mere philosophical theory. The indirect methods
by which the Edict combated certain technical anoma-
lies, show the caution which its authors were compelled
to observe, and down to the very days of Justinian
there was some part of the old law which had ob-
stinately resisted its influence. But, on the whole,
the progress of the 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 generalisalion had always
been associated with the conception of Nature; sim-
plicity, symmetry, and intelligibility came therefore
to be regarded as the characteristics of a good legal
system, and the taste for involved language, mul-
tiplied ceremonials, and . useless difficulties disap-
peared 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.

5S EQUITr. CHAP. iir.

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 jEquitas, or
Equity in its original sense; and here we seem to
come to the first appearance in jurisprudence of this
famous term, Equity. In examining an expression
which has so remote an origin and so long a history
as this, it is always safest to penetrate, if possible,
to the simple metaphor or figure which at first
shadowed forth the conception. It has generally
been supposed that ^quitas is the equivalent of the
Greek leronj^, \, e. the principle of equal or propor-
tionate distribution. The equal division of numbers
or physical magnitudes is doubtless closely entmned
with our perceptions of justice; there are few asso-
ciations which keep their ground in the mind so
stubbornly or are dismissed from it with such diffi-
culty by the deepest thinkers. Yet in tracing the
history of this association, it certainly does not
seem to have suggested itself to very early thought,
but is rather the offispring 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 Ari-
stogiton are said to have given to Athens — had
little in common with the " equity " of the Romans.
The first was an equal administration of civil laws

CHAP. III. EQUITY. 59

among the citizens, however limited the class of
citizens might be; the last implied the applicability
of a law, which was not civil law, to a class which
did not necessarily consist of citizens. The first
excluded a despot ; the last included foreigners, and
for some purposes slaves. On the whole, I should
be disposed to look in another direction for the germ
of the Roman *' Equity." The Latin word "aequus"
carries with it more distinctly than the Greek "/tro^"
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 esta-
blished, for example, a fundamental difference be-
tween " Agnatic " and " Cognatic " relationship,
that is, between the Family considered as based
upon common subjection to patriarchal authority
and the Family considered (in conformity with mo-
dem ideas) as united through the mere fact of a
common descent. This distinction disappears in the
^Maw common to all nations," as also does the
difference between the archaic forms of property,
Things " Mancipi " and Things " nee Mancipi." The
neglect of demarcations and boundaries seems to

60 LAW OF NATURE. chap. iii.

me, therefore, the feature of the Jus Gentium which
was depicted in jEquitas. I imagine that the word
was at first a mere description of that constant
levelling or removal of irregularities whicH went on
wherever the praetorian system was applied to the
cases of foreign litigants. Probably no colour of
ethical meaning belonged at first to the expression ;
nor is there any reason to believe that the process
which it indicated was otherwise than extremely
distastefiil to the primitive Roman mind.

On the other hand, the feature of the Jus Gentium
which was presented to the apprehension of a Roman
by the word Equity, was exactly the first and most
vividly realised characteristic of the hypothetical
state of nature. Nature implied symmetrical order,
first in the physical world, and next in the moral,
and the earliest notion of order doubtless involved
straight lines, even surfaces, and measured distances.
The same sort of picture or figure would be uncon-
sciously before the mind's eye, whether it strove to
form the outlines of the supposed natural state, or
whether it took in at a glance the actual administra-
tion of the " law common to all nations; " and all we
know of primitive thought would lead us to conclude
that this ideal similarity would do much to encourage
the belief in an identity of the two conceptions. But
then, while the Jus Gentium had little or no antecedent
credit at Rome, the theory of a Law of Nature came

CHAP. III. THE EDICT.

in surrounded with all the prestige of philWphical
authority, and invested with the charms of associa
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
Avhich at once described the operation of the old
principles and the results of the new theory. Even
to modem 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 me-
taphor IS precisely the same. Nor do I doubt that,
when once -^quitas was understood to convey an
allusion to the Greek theory, associations which grew
out of the Greek notion of larori^g began to cluster
round it. The language of Cicero renders it more
than likely that this was so, and it was the first
stage of a transmutation of the conception of
Equity, which almost every ethical system which has
appeared sioce those days has more or less helped to
carry on.

Something must be said of the formal instrumen-
tality by which the principles and distinctions asso-
ciated, first with the Law common to aU 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

02 THE PR^TOR. cqap. hi.

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

CHAP. III. THE EDICT. 63

not undertaken to decide them, and he inust soon have
addressed himself to the more critical disputes which
in the extension of commerce arose between Roman
subjects and avowed foreigners. The great increase
of such cases in the Roman Courts about the period
of the first Punic War is marked by the appointment
of a special Praetor, known subsequently as the
Praetor Peregrinus, who gave them his undivided
attention. Meantime, one precaution of the Roman
people against the revival of oppression, had con-
sisted in obliging every magistrate whose duties had
any tendency to expand their sphere, to publish, on
commencing his year of office, an Edict or pro-
clamation, in which he declared the manner in
which he intended to administer his department*
The Praetor fell under the rule with other magi-
strates; but as it was necessarily impossible to con-
struct each year a separate system of principles, he
seems to have regularly republished his predeces-
sor's Edict with such additions and changes as the
exigency of the moment or his own views of the law
compelled him to introduce. The Praetor's proclama-
tion, 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,

64 THE PRAETOR. cuap. hi.

caused the practice of increasing it to be stopped in
the year of Salvius Julianus, who occupied the magi-
stracy in the reign of the Emperor Hadrian. The
edict of that Praetor embraced therefore the whole
body of equity jurisprudence, which it probably dis-
posed in new and symmetrical order, and the perpe-
tual edict is therefore often cited in Roman law
merely as the Edict of Julianus.

Perhaps the first inquiry which occurs to an Eng-
lishman who considers the peculiar mechanism of
the Edict is, what were the limitations by which these
extensive powers of the Praetor 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 ad-
ministered. The Praetor, it should be recollected,
was a jurisconsult himself, or a person entirely in the
hands of advisers who were jurisconsults, and it is
probable that every Roman lawyer waited impatiently
for the time when he should fill or control the great
judicial magistracy. In the interval, his tastes, feel-
ings, prejudices, and degree of enlightenment were
inevitably those of his own order, and the qualifica-
tions which he ultimately brought to office were those
which he had acquired in the practice and study of
his profession. An English Chancellor goes through
precisely the same training, and carries to the wool-

CHAP. 111. RESTRAINTS ON THE PE^TOR. 65

sack the same qualifications. It is certain when he
aissumes office that he will have, to some extent, mo-
dified the law before he leaves it ; but until he has
quitted his seat, and the series of his decisions in the
Law Reports has been completed, we cannot discover
how far he has elucidated or added to the principles
which his predecessors bequeathed to him. The in-
fluence of the PraBtor on Roman jurisprudence differed
only in respect of the period at which its amount was
ascertained. As was before stated, he was in office
but for a year, and his decisions rendered during his
year, though of course irreversible as regarded the
litigants, were of no ulterior value. The most natu-
ral moment for declaring the changes he proposed to
effect occurred therefore at his entrance on the praB-
torship, and hence, when commencing his duties, he
did openly and avowedly that which in the end his
English representative does insensibly and sometimes
unconsciously. The checks on his apparent liberty
are precisely those imposed on an English judge.
Theoretically there seems to be hardly any limit to
the powers of either of them, but practically the Ro-
man Praetor, no less than the English Chancellor,
was kept within the narrowest bounds by the prepos-
sessions imbibed from early training and by the
strong restraints of professional opinion, restraints of
which the stringency can only be appreciated by
those who have personally experienced them. It may

GG EQUITY. CHAP. in.

be added that the lines within which movement is
permitted, and beyond which there is to be no travel-
ling, were chalked with as much distinctness in the
one case as in the other. In England the judge fol-
lows the analogies of reported decisions on insulated
groups of facts. At Rome, as the intervention of the
Praetor was at first dictated by simple concern for the
safety of the state, it is likely that in the earliest
times it was proportioned to the difficulty which it
attempted to get rid of. Afterwards, when the taste
for principle had been diflFused by the Responses, he no
doubt, used the Edict as the means of giving a wider
application to those fundamental principles which he
and the other practising jurisconsults, his contempo-
raries, believed themselves to have detected under-
lying 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 won-

CHAP. ui. ROMAN EQUITY. 67

derfiil 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 sub-
ject of a jurisconsult of this epoch, he may always
be called an expositor of Equity. The principles
of the Edict had, before the epoch of its cessation,
made their way into every part of Roman jurispru-
dence. The Equity of Rome, it should be understood,
even when most distinct from the Civil Law, was
always administered by the same tribunals. The
Praetor was the chief equity judge as well as the great
common law magistrate, and as soon as the Edict had
evolved an equitable rule the Praetor's court began to
apply it in place of or by the side of the old rule of
the Civil Law, which was thus directly or indirectly
repealed without any express enactment of the legis-
lature. The result, of course, fell considerably short
of a complete fusion of law and equity, which was not
carried out till the reforms of Justinian. The techni-
cal severance of the two elements of jurisprudence
entailed some confusion and some inconvenience,
and there were certain of the stubbomer doctrines
of the Civil Law with which neither the authors
nor the expositors of the Edict had ventured to in-
terfere. But at the same time there was no corner
of the field of jurisprudence which was not more or

p 2

lis EQUITY. CHAP. III.

less swept over by the influence of Equity. It sup-
plied the jurist with all his materials for generalisa-
tion, with all his methods of interpretation, with
his elucidations of first principles, and with that
great mass of limiting rules which are rarely inter-
fered 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 com-
mentaries 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 suc-
cession of jurisconsults comes to a close. • The remain-
ing history of the Roman law is the history of the
imperial constitutions, and, at the last, of attempts to
codify what had now become the unwieldy body of
Roman jurisprudence. We have the latest and most
celebrated experiment of this kind in the Corpus Juris
of Justinian.

It would be wearisome to enter on a detailed com-
parison or contrast of English and Roman Equity,
but it may be worth while to mention two features
\ which they have in common. The first may be

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

CHAP. III. EKGLISU AND ROMAN EQUITY. 6^

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 revo-
lution, the Equity of Rome ceased to expand. The
same point of legal history was attained in Eng-
land under the chancellorship of Lord Eldon, the
first of our equity judges who, instead of enlarg-
ing the jurisprudence of his court by indirect
legislation, devoted himself through life to explain-
ing and harmonising it. If the philosophy of legal
history were better understood in England, Lord
Eldon's services would be less exaggerated on the
one hand and better appreciated on the other than
than they appear to be among contemporary lawyers.
Other misapprehensions too, which bear some prac;
tical fruit, would perhaps be avoided. It is easily
seen by English lawyers that English Equity is a
system founded on moral rules; but it is forgotten
that these rules are the morality of past centuries —
not of the present — that they have received nearly
as much application as they are capable of, and that,
though of course they do not differ largely from the

F 3

70 EQUITY. cuAP. iii.

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 contem-
plated 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
ojQSce for the jurisprudence which he finds ready
to his hand, which was performed for the old com-
mon law by the fathers of English equity. But this
is to invert the order of the agencies by which the
improvement of the law is carried on. Equity has its
place and its time; but 1 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 assump-
tions upon which the claim of the equitable to supe-
riority over the legal rule is originally defended.
Nothing is more distasteful to men, either as indi-

CHAP. m. ENGLISH AND ROMAN EQUITY. 71

viduals or as masses, than the admission of their
moral progress as a substantive reality. This un-
willingness shows itself, as regards individuals, in the
exaggerated respect which is ordinarily paid to the
doubtful virtue of consistency. The movement of the
collective opinion of a whole society is too palpable
to be ignored, and is generally too visibly for the
better to be decried; but there is the greatest dis-
inclination to accep* it as a primary phenomenon, and
it is commonly explained as the recovery of a lost
perfection — the gradual return to a state from which
the race has lapsed. This tendency to look back-
ward instead of forward for the goal of moral pro-
gress produced anciently, as we have seen, on Roman
jurisprudence effects the most serious and perma-
nent. The Roman jurisconsults, in order to account
for the improvement of their jurisprudence by the
Praetor, borrowed from Greece the doctrine of a
Natural state of man — a Natural society — anterior
to the organisation of commonwealths governed by
positive laws. In England, on the other hand, a
range of ideas especially congenial to Englishmen of
that day, explained the claim of Equity to override
the common law by supposing a general right to
superintend the administration of justice which was
assumed to be vested in the king as a natural result
of his paternal authority. The same view appears
in a different and a quainter form in the old doctrine

F 4

72 EQUITY. CHAP. iii.

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 modem manuals of Equity are very various, but all
are alike in their untenabUity. 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 dis-
tinction between natural justice and civil.

CHAP. IV, I^AW OP NATURE. 73

CHAP. 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 jurispru-
dence 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 un-
discoverable 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 dis-
tinguished 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

74 MODERN HISTORY OF NATURAL LAW. chap. iv.

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 modem disciples of the juris-
consults, and in truth modem 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 assump-
tions on which the old theory rested or rather
perhaps to mix together two inconsistent theories.
The tendency to look not to the past but to the future
for types of perfection was brought into the world
by Christianity. Ancient literature ^ves few or
no hints of a belief that the progress of society is
necessarily from worse to better.

But the importance of this theory to mankind has
been very much greater than its philosophical de-
ficiencies would lead us to expect. Indeed, it is not
easy to say what turn the history of thought, and
therefore, of the human race, would have taken, if the
belief in a law natural had not become universal in
the ancient world.

There are two special dangers to which law, and

CHAP. ir. PERILS OF EARLY SOCIETY. 75

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 commu-
nities, which disembarrassed themselves with as-
tonishing facility from cumbrous forms of procedure
and needless terms of art, and soon ceased to attach
any superstitious value^ to rigid rules and prescrip-
tions. 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 mis-
carriages 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 ac-
curate knowledge, the Greek tribunals exhibited the
strongest tendency to confound law and fact. The
remains of the Orators and the forensic common-
places preserved by Aristotle in his Treatise on
Rhetoric, show that questions of pure law were con-
stantly argued on every consideration which could
possibly influence the mind of the judges. No durable

76 NATURAL LAW OF THE JURISCONSULTS, chap. iv.

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 con-
sisting of the ideas of right and wrong which hap-
pened to be prevalent at the time. Such a juris-
prudence would contain no framework to which the
more advanced conceptions of subsequent ages could
be fitted. It would amount at best to a philosophy,
marked with the imperfections of the civilisation
under which it grew up-
Few national societies have had their jurispru-
dence menaced by this peculiar danger of precocious
maturity and untimely disintegration. It is cer-
tainly doubtful whether the Romans were ever
seriously threatened by it, but at any rate they had
adequate protection in their theory of Natural Law.
For the Natural Law of the jurisconsults was dis-
tinctly 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 superin-
tendence of a particular litigation. The value and
serviceableness of the conception arose from its

CHAP. IV. LAW OF NATURE, 77

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 ad-
justed 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 poiot 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 associa-
tion and identification with religion, has chained
down the mass of the human race to those views
of life and conduct which they entertained at the
time when their usages were first consolidated into
a systematic form. There were one or two races
exempted by a marvellous fate from this calamity,
and grafts from these stocks have fertilised a few
modem societies, but it is still true that, over the

.<<^^r.VA.J

\ >;

78 HISTORY OF LAW OF NATURE. chap. iv.

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 conclu-
sions it could build on ancient texts, without dis-
coverable departure from their literal tenour, I know
no reason why the law of the Romans should be su-
perior to the laws of the Hindoos, unless the theory
of Natural Law had given it a type of excellence
different from the usual one. In this one excep-
tional instance, simplicity and symmetry were kept
before the eyes of a society whose influence on man-
kind was destined to be prodigious from other causes,
as the characteristics of an ideal and absolutely per-
fect 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 para-
doxical commonplace that English law was the per-
fection of human reason, but they acted as if they
believed it for want of any other principle to pro-

CHAP. ;v. BENTFIAMISM. 79

ceed upoB. Bentham made the good of the com-
munity 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 prac-
tical 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 anticipa-
tion of Bentham's principles. The happiness of
mankind is, no doubt, sometimes assigned, both in
the popular and in the legal literature of the Romans,
as the proper object of remedial legislation, but it is
very remarkable how few and faint are the testimonies
to this principle compared with the tributes which are
constantly offered to the overshadowing claims of the
Law of Nature. It was not to anything resembling
philanthropy, but to their sense of simplicity and
harmony — of what they significantly termed " ele-
gance " — that the Roman jurisconsults fi*eely surren-
dered themselves. The coincidence of their labours
with those which a more precise philosophy would

80 niSTORY OF LAW OF NATURE. chap. iv.

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 vast-
ness of its influence than to pronounce confidently
whether that influence has been exerted for good or
for evil. The doctrines and institutions which may
be attributed to it are the material of some of the
most violent controversies debated in our time, as
will be seen when it is stated that the theory of
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 instru-
ment of diffusing over the western world. The part
played by jurists in French history, and the sphere
of jural conceptions in French thought, have always
been remarkably large. It was not indeed in France,
but in Italy, that the juridical science of modem
Europe took its rise, but of the schools founded by
emissaries of the Italian universities in aU parts of
the continent, and attempted (though vainly) to be
set up in our island, that established in France pro-
duced 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

CHAP. IV. THE FRENCH LAWYERS. 81

sword, that the French monarchy at last grew to-
gether out of the agglomeration of provinces and
dependencies. The enormous advantage which their
understanding with the lawyers conferred on the
French kings in the prosecution of their struggle
with the great feudatories, the aristocracy, and the
church, can only be appreciated if we take into
account the ideas which prevailed in Europe far down
into the middle ages. There was, in the first place,
a great enthusiasm for generalisation and a curious
admiration for all general propositions, and conse-
quently, in the field of law, an involuntary reverence
for every general formula which seemed to embrace
and sum up a number of the insulated rules which
were practised as usages in various localities. Such
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 consi-
derably 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

82 HISTORY OF LAW OF NATURE. chap, i v.

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 uncer-
tainty of men's notions on this most important side
of juridical controversies, not only because it helps to
explain the weight which the lawyers threw into the
monarchical scale, but on account of the light which
it sheds on several curious historical problems. The
motives of the author of the Forged Decretals and
his extraordinary success are rendered more intelli-
gible by it. And, to take a phenomenon of smaller
interest, it assists us, though only partially, to under-
stand the plagiarisms of Bracton. That an English
writer of the time of Henry III. should have been
able to put off on his countrymen as a compendium
of pure English law a treatise of which the entire
form and a third of the contents were directly bor-
rowed 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 compre-
hend the state of opinion at the period as to the
obligatory force of written texts, apart from all con-
sideration of the source whence they were derived.

HAP. IV. THE FRENCH LAWYERS. 83

When the kings of France had brought their long
struggle for supremacy to a successful close, an epoch
which may be placed roughly at the accession of the
Hbranch of Valois-Angoulfeme to the throne, the situa-
tion of the French jurists was peculiar and continued
to be so down to the outbreak of the revolution. On
the one hand, they formed the best instructed and
nearly the most powerful class in the nation. They
had made good their footing as a privileged order by
the side of the feudal aristocracy, and they had assured
their influence by an organisation which distributed
their profession over France in great chartered corpo-
rations possessing large defined powers and still larger
indefinite claims. In aU the qualities of the advocate,
the judge, and the legislator, they far excelled their
compeers throughout Europe. Their 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 oppo-
site poles of Cujas and Montesquieu, of D'Aguesseau
and Dumoulin. But, on the other hand, the system of
laws which they had to administer stood in striking
contrast with the habits of mind which they had cul-
tivated. The France which had been in great part
constituted by their efforts was smitten with the

G 3

84 HISTORY OF LAW OF NATURE. chap. iv.

curse of an anomalous and dissonant jurisprudence
beyond every other country in Europe. One great
division ran through the country and separated it
into Pays du Droit Ecrit and Pays du Droit Coutu-*
mierj the first acknowledging the written Roman law
as the basis of their jurisprudence, the last admitting
it only so far as it supplied general forms of expres-
sion, and courses of juridical reasoning, which were
reconcileable with the local usages. The sections
thus formed were again variously subdivided. In
the Pays 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 miscel-
laneous composition. No such confusion as this ever
existed in England. In Germany it did exist, but
was too much in harmony with the deep political and
religious divisions of the country to be lamented or
even felt. It was the special peculiarity of France
that an extraordinary diversity of laws continued
without sensible alteration while the central authority
of the monarchy was constantly strengthening itself,
while rapid approaches were being made to complete
administrative unity, and while a fervid national
spirit had been developed among the people. The
contrast was one which fructified in many serious
results, and among them we must rank the effect
which it produced on the minds of the French

CHAP. IT. THE FRENCH LAWYERS. 85

lawyers. Their speculative opinions and their intel-
lectual bias were in the strongest opposition to their
interests and professional habits. With the keenest
sense and the fullest recognition of those perfections
of jurisprudence which consist in simplicity and
uniformity, they believed, or seemed to believe, that
the vices which actually 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 technica-
lity. Natural law may said to have become the
common law of France, or, at all events, the admis-
sion of its dignity and claims was the one tenet which
all French practitioners alike subscribed to. The
language of the prae-revolutionary jurists in its eulogy
is singularly unqualified, and it is remarkable that
the writers on the Customs, who often made it their
duty to speak disparagingly of the pure Roman law,
speak even more fervidly of Nature and her rules than

G 3

86 mSTORY OF LAW OF NATURE. chap. iv.

the civilians who professed an exclusive respect for
the Digest and the Code. Dumoulin, the highest of
all authorities on old French Customary Law, has
some extravagant passages on the Law of Nature;
and his panegyrics have a peculiar rhetorical turn
which indicates a considerable departure from the
caution of the Eoman jurisconsults. The hypothesis
of a Natural Law had become not so much a theory
guiding practice as an article of speculative faith,
and accordingly we shall find that, in the transfor-
mation which it more recently underwent, its weakest
parts rose to the level of its strongest in the esteem
of its supporters.

The eighteenth century was half over when the
most critical period in the history of Natural Law was
reached. Had the discussion of the theory and of
its consequences continued to be exclusively the em-
ployment of the legal profession, there would pos-
sibly have been an abatement of the respect which it
commanded; for by this time the Esprit des Lois had
appeared. Bearing in some exaggerations the marks
of the excessive violence with which its author's
mind had recoiled from assumptions usually suf-
fered 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

CHAP. IV. ROUSSEAU. 87

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 sud-
denly 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 exer-
cised 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 efibrts
commenced by Bayle, and in part by our own Locke,
and consummated by Voltaire ; and besides the supe-
riority which every constructive effort will always
enjoy over one that is merely destructive, it possessed
the immense advantage of appearing amid an all
but universal scepticism as to the soundness of all

G 4

8B HISTORY OF LAW OF NATURE. chap. iv.

foregone knowledge in matters speculative. Now, in
all the speculations of Rousseau, the central figure,
whether arrayed in an English dress as the signa-
tary of a social compact, or simply stripped naked of
all historical qualities, is uniformly Man, in a sup-
posed state of nature. 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 eflfected at any apparent cost. The theory is
stiU that of the Roman lawyers, for in the phan-
tasmagoria with which the Natural Condition is
peopled, every feature and characteristic eludes the
mind except the simplicity and harmony which pos-
sessed such charms for the jurisconsult; but the
theory is, as it were, turned upside down. It is not
the Law of Nature, but the State of Nature, which is
now the primary subject of contemplation. The
Roman had conceived that by careful observation
of existing institutions parts of them could be singled
out which either exhibited already, or could by
judicious purification be made to exhibit, the vestiges
of that reign of nature whose reality he faintly
affirmed. Rousseau's belief was that a perfect social
order could be evolved from the unassisted considera-

CHAP. IV. THEORIES OF ROUSSEAU. 89

tion of the natural state, a social order wholly irre-
spective 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 particu-
larity 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 im-
pede the employment of the Historical Method of in-
quiry, but its discredit with the higher minds of our
day is deep enough to astonish those who are familiar
with the extraordinary vitality of speculative error.
Perhaps the question most frequently asked nowa-
days is not what is the value of these opinions, but
what were the causes which gave them such over-
shadowing prominence a hundred years ago. The
answer is, I conceive, a simple one. The study
which in the last century would best have corrected
the misapprehensions into which an exclusive atten-
tion to legal antiquities is apt to betray was the
study of religion. But Greek religion, as then under-
stood, was dissipated in imaginative myths. The

DO HISTORY OF LAW OF NATURE. chap. iv.

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 Eousseau 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 diate 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 hypo-
thesis of a state of nature has fallen low in general
esteem, in so far as it is looked upon under its coarser
and more palpable aspect, it does not follow that in
its subtler disguises it has lost plausibility, popu-
larity, or power. I believe, as I have said, that it is
still the great antagonist of the Historical Method;

CHAP. IT. THE FRENCH REVOLUTION. 91

and whenever (religious objections apart) any mind
is seen to resist or contemn that mode of investi-
gation, it will generally be found under the influence
of a prejudice or vicious bias traceable to a conscious
or unconscious reliance on a non-historic, natural,
condition of society or the individual. It is chiefly,
however, by allying themselves with political and
jsocial tendencies that the doctrines of Nature and her
law have preserved their energy. Some of these tend-
encies they have stimulated, others they have actually
created, to a great number they have given expres-
sion 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 uni-
versal at the time, disdain of positive law, impatience
of experience, and the preference of a priori to all

92 HISTORY OF LAW OF NATURE. chap. iv.

other reasoning. In proportion too as this philo-
sophy 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 ap-
peals 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
modem society, and indicates how very far are those
effects from being exhausted. There cannot, I con-
ceive, 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 Ro-
man jurisconsults of the Antonine era lay down that

CHAP. IV. EQUALITY OF MEX.

" omnes homines naturft sequales sunt," but
eyes this is a strictly juridical axiom. They in'
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 CivU Law
maintained between classes of persons cease to have
a legal existence. The rule was one of considerable
importance to the Roman practitioner, who required
to be reminded that, wherever Roman jurisprudence
was assumed to conform itself exactly to the code of
Nature, there was no difference in the contemplation
of the Roman tribunals between citizen and foreigner,
between freeman and slave, between Agnate and Cog-
nate. The 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 modem dress it has evidently clothed
itself with a new shade of meaning. Where the Ro-
man jurisconsult had written " SBquales sunt," mean-
ing exactly what he said, the modem civilian wrote
"all men are equal" in the sense of "all men ought
to be equal." The peculiar Roman idea that na-
tural law coexisted with civil law and gradually ab-
sorbed it, had evidently been lost sight of, or had

94 HISTORY OF LAW OF NATURE. chap. ir.

become unintelligible, and the words which had at
most conveyed a theory concerning the origin, com-
position, and development of human institutions, were
beginning to express the sense of a great standing
wrong suffered by mankind. As early as the beginning
of the fourteenth century, the current language con-
cerning the birth-state of men, though visibly intended
to be identical with that of Ulpian and his contempo-
raries, has assumed an altogether different form and
meaning. The preamble to the celebrated ordinance
of King Louis Hutin enfranchising the serfs of the
royal domains would have sounded strangely to
Roman ears. " Whereas, according to natural law,
everybody ought to be born free ; and by some usages
and customs which, from long antiquity, have been
introduced and kept until now in our realm, and per-
adventure by reason of the misdeeds of their prede-
cessors, many persons of our common people have
fallen into servitude, therefore, We, &c." This is the
enunciation not of a legal rule but of a political
dogma; and from this time the equality of men is
spoken of by the 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 lan-
guidly 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

CHAP. IV. DECLARATION OF INDEPENDENCE. 95

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-juri-
dical, semi-popular opinions which were fashionable in
France, and we cannot doubt that it was sympathy
with the peculiar ideas of the French jurists which
led him and the other colonial lawyers who guided
the course of events in America to join the specially
French assumption that " all men are bom equal "
with the assumption, more familiar to Englishmen,
that " all men are bom free," in the very first lines
of their Declaration of Independence. The passage
was one of great importance to the history of the
doctrine before us. The American lawyers, in thus
prominently and emphatically affirming the fun-
damental equality of human beings, gave an im-
pulse to political movements in their own country,

96 HISTORY OF LAW OF NATURE. ohap. iv.

and in a less degree in Great Britain, which is far
from having yet spent itself; but besides this they
returned the dogma they had adopted to its home in
France, endowed with vastly greater energy and en-
joying much greater claims on general reception and
respect. Even the more cautious politicians of the first
Constituent Assembly repeated Ulpian's proposition
as if it at once commended itself to the instincts and
intuitions of mankind; and of all the "principles of
1789 " it is the one which has been least strenuously
assailed, which has most thoroughly leavened modem
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 modem International
Law and to the modern Law of War, but this part
of its effects must here be dismissed with consider-
ation 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 archi-
tects, there are two or three of preeminent import-
ance. The first of all is expressed in the position
that there is a determinable Law of Nature. Gro-
tius and his successors took the assumption directly
from the Romans, but they differed widely from
the Roman jurisconsults and from each other in
their ideas as to the mode of determination. The

CHAP. IV. . INTERNATIONAL LAW. 97

ambition of almost every Publicist who has flourished
since the revival of letters has been to provide new
and more manageable definitions of Nature and of her
law, and it is indisputable that the conception in
passing through the long series of writers on Public
Law has gathered round it a large accretion, con-
sisting of fragments of ideas derived from nearly
every theory of ethics which has in its turn taken
possession of the schools. Yet it is a remarkable
proof of the essentially historical character of the
conception that, after all the 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 harmony with the Jus Gentium, the
publicists have found a reason for borrowing it,
however plainly it may bear the marks of a distinc-
tively Roman origin. We may observe too that the
derivative theories are afflicted with the weakness
of the primary notion. In the majority of the
Publicists, the mode of thought is still "mixed."
In studying these writers, the great difficulty is

^

U8 UISTOUY OF LAW OF NATURE. chap. iv.

always to discover whether they are discussing law
or morality — whether the state of international re-
lations they describe is actual or ideal — whether
they lay down that which is, or that which, in their
opinion, ought to be.

The assumption that Natural Law is binding on
states inter se is the next in rank of those which
underlie International Law. A series of assertions or
admissions of this principle may be traced up to the
very infancy of modem juridical science, and at first
sight it seems a direct inference from the teaching of
the Romans. The civil condition of society being
distinguished from the natural by the fact that in the
first there is a distinct author of law, while in the
last there is none, it appears as if the moment a
number of units were acknowledged to obey no com-
mon sovereign or political superior they were thrown
back on the ulterior behests of the Law Natural.
States are such units ; the hypothesis of their inde-
pendence excludes the notion of a common lawgiver,
and draws with it, therefore, according to a certain
range of ideas, the notion of subjection to the primeval
order of nature. The alternative is to consider in-
dependent communities as not related to each other
by any law, but this condition of lawlessness is ex-
actly the vacuum which the Nature of the juris-
consults abhorred. There is certainly apparent reason
for ^hinking that if the mind of a Koman lawyer

CHAP. IV. INTERNATIONAL LAW. m

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 im-
mediate in our own eyes, were actually drawn at
any period of history. No passage has ever been ad-
duced from the remains of Roman law which, in my
judgment, proves the jurisconsults to have believed
natural law to have obligatory force between inde-
pendent commonwealths ; and we cannot but see that
to citizens of the Roman empire, who regarded their
sovereign's dominions as conterminous with civili-
sation, the equal subjection of states to the Law of
Nature, if contemplated at all, must have seemed at
most an extreme result of curious speculation. The
truth appears to be that modem International Law,
undoubted as is its descent from Roman law, is only
connected with it by an irregular filiation. The early
modern interpreters of the jurisprudence of Rome,
misconceiving the meaning of Jus Gentium, assumed
without hesitation that the Romans had bequeathed*
to them a system of rules for the adjustment of
international transactions. This " Law of Nations "
was at first an authority which had formidable com-
petitors to strive with, and the condition of Europe
was^long such as to preclude its universal reception.
Gradually, however, the western world arranged itself
in a form more favourable to the theory of the

H 2

100 HISTORY OF LAW OF NATURE. chap. ir.

civilians; circumstances destroyed the credit of rival
doctrines; and at last, at a peculiarly felicitous con-
juncture, Ayala and Grotius were able to obtain for it
the enthusiastic assent of Europe, an assent which has
been over and over again renewed in every variety of
solemn engagement. The great men to whom its
triumph is chiefly owing attempted, it need scarcely be
said, to place it pn an entirely new basis, and it is un-
questionable that in the course of this displacement
they altered much of its structure, though far less
of it than is commonly supposed. Having adopted
from the Antonine jurisconsults the position that the
Jus Gentium and the Jus Naturae were identical,
Grotius, with his immediate predecessors and his im-
mediate 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^aw is the code of states,
and thus put in operation a process which has con-
tinued almost down to our own day, the process of
engrafting on the international system rules which
are supposed to have been evolved from the un-
assisted contemplation of the conception of Nature.
There is too one consequence of immense practical
importance to mankind which, though not unknown
during the early modem history of Europe, was
never clearly or universally acknowledged till the
doctrines of the Grotian school had prevailed. If

CHAP. IV. INTERNATIONAL LAW. 101

the society of nations is governed by Natural Law,
the atoms which compose it must be absolutely equal.
Men under the sceptre of Nature are all equal, and
accordingly commonwealths are equal if the inter-
national state be one of nature. The proposition
that independent communities, however different in
size and power, are all equal in the view of the law
of nations, has largely contributed to the happiness
of mankind, though it is constantly threatened by
the political tendencies of each successive age. It
is a doctrine which probably would never have
obtained a secure footing at 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 mode-
rate the wars in which it too frequently results, are
merely transcribed from the part of the Roman law
which treats of the modes of acquiring property ^t^r^
gentium. These modes of acquisition were obtained
by the elder jurisconsults, as I have attempted to

u 3

102 HISTORY OF LAW OF NATURE. chap. ly.

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 limi-
tations, 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 juris-
consults imagined to exhibit a certain congruity with
the natural state. In order that these chapters of
International Law may be capable of application, it is
necessary that sovereigns should be related to each
other like the members of a group of Roman pro-
prietors. This is another of the postulates which lie
at the threshold of the International Code, and it is
also one which could not possibly have been sub-
scribed to during the first centuries of modem
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 "sove-
reigns inter se are to be deemed not paramount^ but
absolute^ o^vners of the state's territory."

CHAP. IV. INTERN ATIONAL LAW. 103

Many contemporary writers on International Law
tacitly assume that the doctrines of iheir system,
founded on principles of equity and common sense,
were capable of being readily reasoned out in every
stage of modem civilisation. But this assumption,
while it conceals some real defects of the inter-
national theory, is altogether untenable so far as
regards a large part of modem history. It is not
true that the authority of the Jus Gentium in the
concerns of nations was always uncontradicted ; on
the contrary, it had to struggle long against the
claims of several competing systems. It is again
not true that the territorial character of sovereignty
was always recognised, for long after the dissolution
of the Roman dominion the minds of men were
under the empire of ideas irreconcileable with such
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 modem history no such conception was enter-
tained as that of " territorial sovereignty.^^ Sove-
reignty 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

H 4

104 HISTORY OF LAW OF NATURE. chap. it.

Imperial liome as to have forgotten that distribu-
tion 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 bar-
barian irruptions, the notion of sovereignty that
prevailed seems to have been twofold. On the one
hand it assumed the form of what may be called
" fnJ^-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 chief-
tains, the descendants of Clovis, were not Kings of
France, they were Kings of the Franks. The alter-
native to this peculiar notion of sovereignty appears
to have been — and this is the important point — the

CHAP. IV. TERRITORIAL SOVEREIGNTY. 105

idea of universal dominion. The moment a monarch
departed from the special relation of chief to clans-
men, and became solicitous, for purposes of his own,
to invest himself with a novel form of sovereignty,
the only precedent which suggested itself for his
adoption was the domination of the Emperors of
Rome. To parody a common quotation, he became
" aut Ccesar aut nuUus.^^ 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 cir-
cumstances, 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

106 HISTORY OF LAW OF NATURE. chap. iv.

motive has been greatly misappreheDded. 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 per-
mitted 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
CsBsars 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 Carlovin-
gians appearto 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

CHAF. IT. TERRITORIAL SOVEREIGNTY. 107

of a limited portion of the earth's surface — was dis-
tinctly an offshoot, though a tardy one, oi feudalism.
This might have been expected h 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 narrow-
ing circles of super-feudation, till we approximate to
the apex of the system. Where that summit exactly
was during the later portion of the dark ages it is not
easy to decide. Probably, wherever the conception
of tribe sovereignty had really decayed, the topmost
point was always assigned to the supposed successor
of the Caesars of the West. But before long, when the
actual sphere of Imperial authority had immensely
contracted, and when the emperors had concentrated
the scanty remains of their power upon Germany and
North Italy, the highest feudal superiors in all the
outlying portions of the former Carlovingian empire
found themselves practically without a supreme head.
Gradually they habituated themselves to the new
situation, and the fact of immunity put at last out of
sight the theory of dependence ; but there are many
sjmiptoms that this change was not quite easily ac-

108 HISTORY OF LAW OP NATURE. chap, iit

complished; and, indeed, to the impression that in the
nature of things there must necessarily be a cuhni-
nating 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 raonarchs, 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

CHAP. IV. INTERNATIONAL LAW. 109

the Venetians from one view to the other. At the
commencement of its foreign conquests, the republic
regarded itself as an antitype of the Roman common-
wealth, governing a number of subject provinces.
Move a century onwards, and you find that it wishes
to be looked upon as a corporate sovereign, claiming
the rights of a feudal suzerain over its possessions in
Italy and the -^gean.

During the period through which the popular ideas
on the subject of sovereignty were undergoing this
remarkable change, the system which stood in the
place of what we now call International Law, was
heterogeneous in form and inconsistent in the prin-
ciples to which it appealed. Over so much of Europe
as was comprised in the Romano-German empire, the
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 jurispru-
dence, of which Caesar was still the centre. This
doctrine was less confidently repudiated in the out-
lying countries than we might have supposed antece-
dently ; but substantially, through the rest of Europe
feudal subordinations furnished a substitute for a
public law; and when those were undetermined or

no HISTORY OF LAW OF NATURE. chap. iv.

ambiguous, there lay behind, in theory at least, a
supreme regulating force in the authority of the head
of the Church. It is certain, however, that both
feudal and ecclesiastical influences were rapidly de-
caying during the fifteenth, and even the fourteenth
century; and if we closely examine the current pre-
texts of wars, and the avowed motives of alliances,
it will be seen that, step by step with the displace-
ment of the old principles, the views afterwards har-
monised and consolidated by Ayala and Grotius were
making considerable progress, though it was silent
anci^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 froBi 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 Ger-
many, 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 refolTners; 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

CHAP. IV. GROTIUS. Ill

as a principle of public relations, furnished no bond
whatever which was stable enough to countervail the
alliances of religion. In a condition, therefore, of
public law which was little less than chaotic, those
views of a state system to which the Roman juriscon-
sults were supposed to have given their sanction
alone remained standing. The shape, the symmetry,
and the prominence which they assumed in the hands
of Grotius are known to every educated man ; but the
great marvel of the Treatise " De Jure Belli et
Pacis," was its rapid, complete, and universal success.
The horrors of the Thirty Years' War, the boundless
terror and pity which the unbridled license of the
soldiery was exciting, must, no doubt, be taken to
explaift. 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

112 IflSTORY OF LAW OF NATURE. chap. iir.

of a natural society must, by the fundamental as-
sumption, 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 com-
mon 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 modem
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 inter-
national 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 sove-
reignty had not been associated with the proprietor-
ship of a limited portion of the earth, had not, in
other words, become territorial — three parts of the
Grotian theory would have been incapable of appli-
cation.

CHAP. T. rRIMITIVE SOCIETY AND ANCIENT LAW. 113

CHAP. V.
PEmiTIVE SOCIETY AND ANCIENT LAW.

The necessity of submitting the subject of jurispru-
dence to scientific treatment has never been entirely
lost sight of in modern times, and the essays which
the consciousness of this, necessity has produced
have proceeded from minds of very various calibre^
but there is not much presumption, I think, in as-
serting that what has hitherto stood in the place of
a science has for the most part been a set of guesses,
those very guesses of the 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 con-
tinued with but brief interruption from the days of
their inventors to our own. They appear in the
annotations of the Glossators who founded modem
jurisprudence, and in the writings of the scholastic
jurists who succeeded them. They are visible in
the dogmas of the canonists. They are thrust into
prominence by those civilians of marvellous erudi-
tion, who flourished at the revival of ancient letters.

I

114 PRIMITIVB SOaETY AND ANCIENT LAW. chap. v.

Grotins 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 guid-
ance of the student or the practitioner begin with
any discussion of the first principles of law, it
always resolves itself into a restatement of the ^
Roman hypothesis. It is however from the disguises
with which these conjectures sometimes clothe them-
selves, quite as much as from their native form, that
we gain an adequate idea of the subtlety with -which
they mix themselves in human thought. The Lockeian
theory of the origin of Law in a Social Compact
scarcely conceals its Roman derivation, and indeed is
only the dress by which the ancient views were ren-
dered more attractive to a particular generation of
the modems ; but on the other hand the theory of
Hobbes on the same subject was purposely devised
to repudiate the reality of a law of nature as con-
ceived by the Romans and their disciples. Yet
these two theories, which long divided the reflecting
politicians of England into hostUe 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
prae-social state, and as to the nature of the abnormal

CHAF. V. MONTESQUIEU. 115

action by which men lifted themselves out of it into
that social organisation with which alone we are
acquainted, but they agreed in thinking that a great
chasm separated man in his primitive condition from
man in society, and this notion we cannot doubt that
they borrowed, consciously or unconsciously, from the
Romans. If indeed the phenomena of law be re-
garded in the way in which these theorists regarded
them — that is, as one vast complex whole — it is not
surprising that the mind should often evade the task
it has set to itself by falling back on some ingenious
conjecture which (plausibly interpreted) will seem
to reconcile everything, or else thai it should some-
times 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 Loisj
which seem to show its writer's unwiUingness to
break quite openly with the views hitherto popular,
the general drift of the book is certainly to indicate
a very difierent conception of its subject from any
which had been entertained before. It has often
been noticed that, amidst the vast variety of ex-
amples which, in its immense width of survey, it
sweeps together from supposed systems of juris-

I 2

116 PRIMITIVE SOCIETY AND ANCIENT LAW. chaf. v.

prudence, there is an evident anxiety to thrust
into especial prominence those manners and institu-
tions which astonish the civilised reader by their
uncouthness, strangeness, or indecency. The in-
ference constantly suggested is, that laws are the
creatures of climate, local situation, accident, or im-
posture — the fruit of any causes except those which
appear to operate with tolerable constancy. Mon-
tesquieu seems, in fact, to have looked on the nature
of man as entirely plastic, as passively reproducing the
impressions, and submitting implicitly to the impulses,
which it receives from without. And here no doubt
lies the error which vitiates his system as a system.
He greatly underrates the stability of 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 construc-
tion, and of those which remain not a few prove the
permanence rather than the variableness of man's

CHAP. Y. MONTESQUIEU AND BENTHAM, 117

nature, since they are reKcs of older stages of the
race which have obstinately defied the influences
that have elsewhere had efiect. The truth is that
the stable part of our mental, moral, and physical
constitution is the largest part of it, and the resist-
ance it opposes to change is such that, though the
variations of human society in a portion of the world
are plain enough, they are neither so rapid nor so
extensive that their amount, character, and general
direction cannot be ascertained. An approximation
to truth may be all that is attainable with our
present knowledge, but there is no ireason for think-
ing 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, ti-
midly) propounded in several parts of Bentham's
works is quite distinct from that analysis of the con-
ception of law which he commenced in the "Fragment
on Government," and which was more recently com-
pleted by Mr. John Austin. The resolution of a
law into a command of a particular nature, imposed
under special conditions, does not afiect to do more
than protect us against a difficulty -»- a most formi-
dable one certainly — of language. The whole ques-
tion remains open as to the motives of societies in

I 3

118 PRIMITIVE SOCIETY AND ANCIENT LAW. chap, v-

imposing these commands on themselves, as to the
connexion of these commands with each other, and
the nature of their dependence on those which pre-
ceded them, and which they have superseded. Ben-
tham suggests the answer that societies modify, and
have always modified, their laws according to modi-
fications of their views of general expediency. It is
difficult to say that this proposition is false, but it
certainly appears to be unfruitfiil. For that which
seems expedient to a society, or rather to the go-
verning part of it, when it alters a rule of law is
surely the same thing as the object, whatever it may
be, which it has in view when it makes the change.
Expediency and the greatest good are nothing more
than different names for the impulse which prompts
the modification ; and when we lay down expediency
as the rule of change in law or opinion, all we get
by the proposition is the substitution of an express
term for a term which is necessarily implied when
we say that a change takes place.

There is such wide-spread dissatisfaction with
existing theories of jurisprudence, and so general a
conviction that they do not really solve the questions
they pretend to dispose of, as to justify the suspicion
that some line of inquiry, necessary to a perfect
result, has been incompletely followed or altogether
omitted by their authors. And indeed there is one
remarkable omission with which all these specula-

cHAP.v. PROPER MODE OF INQUmY. 119

tions are chargeable, except perhaps those of Mon-
tesquieu. They take no account of what law has
actually been at epochs remote from the particular
period at which they made their appearance. Their
originators carefully observed the institutions of their
own age and civilisation, and those of other ages and
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 uni-
formly ceased to observe and began guessing. The
mistake which they committed is therefore analogous
to the error of one who, in investigating the laws of
the material universe, should commence by contem-
plating the existing physical world as a whole, in-
stead of beginning with the particles which are its
simplest ingredients. One does not certainly see
why such a scientific solecism should be more de-
fensible in jurisprudence than in any other region of
thought. It would seem antecedently that we ought
to commence with the simplest social forms in a
state as near as possible to their rudimentary condi^
tion. In other words, if we followed the course
usual in such inquiries, we should penetrate as far
up as we could 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

I 4

120 PRIMITIVE SOCIETr AND ANCIENT LAW. chap. v.

perplexities which beset us in considering the baffling
entanglement of modem social organisation. It is a
difficulty arising from their strangeness and un-
couthness, not from their number and complexity.
One does not readily get over the surprise which
they occasion when looked at from a modem point
of view; but when that is surmounted they are fqw
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 dif-
ferent rates of progress, there have been epochs at
which men trained to habits of methodical observa-
tion have really been in a position to watch and de-
scribe the infancy of mankind. Tacitus made the most
of such an opportunity; but the Germany^ unlike
most celebrated classical books, has not induced others
to follow the excellent example set by its author, and

CHAP. V. THE GERMANY OF TACITUS. 121

the amount of this sort of testimony which we pos-
sess is exceedingly small. The lofty contempt which
a civilised people entertains for barbarous neighbours
has caused a remarkable negligence in observing
them, and this jcarelessness has been aggravated at
times by fear, by religious prejudice, and even by
the use of these very terms — civilisation and bar-
barism — which convey to most persons the impres-
sion of a difference not merely in degree but in kind.
Even the Germany has been suspected by some
critics of sacrificing fidelity to poignancy of contrast
and picturesqueness of narrative. Other histories
too, which have been handed down to us among the
archives of the people to whose infancy they relate,
have been thought distorted by the pride of race or
by the religious sentiment of a newer age. It is
important then to observe that these suspicions, whe-
ther groundless or rational, do not attach io 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
Avith, we are able to gain a clear conception of certain

122 PRIMITIVE SOdETT AND AITCIENT LAW. chap v-

great characteristics of the society to which they
originally belonged. Advancing a step further, we
can apply our knowledge to systems of law which,
like the Code of 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 compUer. 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 compara-
tive philology.

The effect of the evidence derived from compara-
tive 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 con-
nexion with Scripture rather militated than other-
wise against Its reception as a complete theory, since
the majority of the inquirers who till recently ad-
dressed themselves with most earnestness to the colli-
gation of social phenomena, were either influenced
by the strongest prejudice against Hebrew antiquities
or by the strongest desire to construct their system

CHAP. V. SCRIPTURAL ACCOUNTS. 123

without the assistance of religious records. Even now
there is perhaps a disposition to undervalue these
accounts, or rather to decline generalising from them,
as forming part of the traditions of a Semitic people.
It is to be noted, however, that the legal testimony
comes nearly exclusively from the institutions of
societies belonging to the Indo-European stock, the
Romans, Hindoos, and Sclavonians supplying the
greater part of it; and indeed the difficulty, at the
present stage of the inquiry, is to know where to
stop, to say of what races of men it is not allowable
to lay down that the society in which they are united
was originally organised on the patriarchal model.
The chief lineaments of such a society, as collected
from the early chapters in Genesis, I need not attempt
to depict with any minuteness, both because they are
familiar to most of us from our earliest childhood,
and because, from the interest once attaching to the
controversy which takes it name from the debate
between Locke and Filmer, they fill a whole chapter,
thought not a very profitable one, in English litera-
ture. The points which lie on the surface of the
history are these: — The eldest male parent — the
eldest ascendant — is absolutely supreme in his house-
hold. His dominion extends to life and death, and
is as unqualified over his children and their houses as
over his slaves; indeed the relations of sonship and
serfdom appear to differ in little beyond the higher

124 PRIMITIVE SOCIETY AND ANCIENT LAW. chap. v.

capacity which the child in blood possesses of be-
coming one day the head of a family himself. The
flocks and herds of the children are the flocks and
herds of the father, and the possessions of the parent,
which he holds in a representative rather than in
a proprietary character, are equally divided at his
death among his descendants in the first degree, the
eldest son sometimes receiving a double share under
the name of birthright, but more generally endowed
with no hereditary advantage beyond an honorary
precedence. A less obvious inference from the Scrip-
tural accounts is that they seem to plant us on the
traces of the breach which is first efifected in the
empire of the parent. The families of Jacob and
Esau separate and form two nations; but the families
of Jacob's children hold together and become a people.
This looks like the immature germ of a state or com-
monwealth, and of an order of rights superior to the
claims of family relation.

If I were attempting for the more special purposes
of the jurist to express compendiously the charac-
teristics of the situation in which mankind disclose
themselves at the dawn of their history, I should be
satisfied to quote a few verses from the Odysaee of
Homer :

Toiaiv b* ovT dyopai fiovKrifpopoi owrc difntrriQ,
. Otfii(rTevt.i be £i:aerroc

iralbwy ijb* dXoxiavy oW AXX^Xuv aXiyovfny.

CHAP. y. PRIMITIVE SOCIETY* 125

" They have neither assemblies for consultation nor
ihemistes^ but every one exercises jurisdiction over
his wives and his children, and they pay no regard to
one another." These lines are applied to the Cyclops,
and it may not perhaps be an altogether fanciful
idea when I suggest that the Cyclops is Homer's
type of an alien and less advanced civilisation; for
the almost physical loathing which a primitive com-
munity feels for men of widely different manners
from its own usually expresses itself by describing
them as monsters, such as giants, or even (which is
almost always the case in Oriental mythology) as
demons. However that may be, the verses condense
in themselves the sum of the hints which are given
us by legal antiquities. Men are first seen distributed
in perfectly insulated groups, held together by obe-
dience to the parent. Law is the parent's word, but
it is hot yet in the condition of those themistes which
^were analysed in the first chapter of this work.
When we go forward to the state of society in which
these early legal conceptions show themselves as
formed, we find that they still partake of the mystery
and spontaneity which must have seemed to charac-
terise a despotic father's commands, but that at the
same time, inasmuch as they proceed from a sovereign,
they presuppose a union of family groups in some
wider organisation. The next question is, what is the
nature of this union and the degree of intimacy which

126 PRIMITIVE SOCIETY AND ANCIENT LAW. chap. v.

it involves. It is just here that archaic law renders
us one of the greatest of its services and fills up a gap
which otherwise could only have been bridged by con-
jecture. It is full, in aU 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 Fa-
mily, of a modem society the Individual. We must
be prepared to find in ancient law all the conse-
quences of this difference. It is so framed as to be
adjusted to a system of smaU independent corpo-
rations. .It is therefore scanty, because it is sup-
plemented by the despotic commands of the heads of
households. It is ceremonious, because the transac-
tions to which it pays regard resemble international
concerns much more than the quick play of inter-*
course between individuals. Above all it has a pecu-
liarity of which the full importance canQot be shown
at present. It takes a view of life wholly unlike any
which appears in developed jurisprudence. Corpo-
rations never die^ and accordingly primitive law
considers the entities with which it deals, i.e. the
patriarchal or family groups, as perpetual and inex-
tinguishable. This view is closely allied to the pecu-
liar aspect under which, in very ancient times, moral

CHAP. V. EARLY MORAL DOCTRINES. 127

attributes present themsdves. 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 con-
sequences 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 per-
plexed by the questions which become troublesome
as soon as the individual is conceived as altogether
separate from the group. One step in the transition
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 punish-
ment, but a liability to the commission of fresh
offences which drew with them a condign retribution ;
and thus the responsibility of the family was reconciled

128 PRIMITIVE SOaETY AND ANCIENT LAW. chap. v.

with the newer phase of thought which limited the
consequences of crime to the person of the actual
delinquent.

It would be a very simple explanation of the origin
of society if we could base a general conclusion on the
hint furnished us by the Scriptural example already
adverted to, and could suppose that communities be-,
gan to exist wherever a family held together instead
of separating at the death of its patriarchal chieftain.
In most of the Greek states and in Rome there
long remained the vestiges of an ascending series of
groups out of which the State was at first constituted.
The Family, House, and Tribe of the Romans may be
taken as the type of them, and they are so described
to us that we can scarcely help conceiving them as a
system of concentric circles which have gradually
expanded from the same point. The elementary
group is the Family, connected by common subjection
to the highest male ascendant. The aggregation of
Families forms the Gens or House. The aggregation
of Houses makes the Tribe. The aggregation of Tribes
constitutes the Commonwealth. Are we at liberty to
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 pro-
ceeded from one original stock, and even laboured

CHAP. V. EATILY POLITICAL IDEAS. 129 ,

under an incapacity for comprehending any reason
except this for their holding together in political
union. The history of political ideas begins, in fact,
with the assumption that kinship in blood is the sole
possible ground of community in political functions ;
nor is there any of those subversions of feeling, which
we term emphatically revolutions, so startling and so
complete as the change which is accomplished when
some other principle — such as that, for instance, of
local contiguity — establishes itself for the first time
as the basis of common political action. It may be
affirmed then of early commonwealths that their citi-
zens 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 ftimished 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 admit-

K

130 PRIMinVE SOCIETY AND ANCIENT LAW. chap. v.

ted to, and amalgamated with, the original brother-
hood* 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 con-
flict between belief or theory and notorious fact is
at first sight extremely perplexing ; but what it really
illustrates is the efficiency with which Legal Fictions
do their work in the infancy of society. The earliest
and most extensively employed of legal fictions was
that which permitted family relations to be created
artificially, and there is none to which I conceive
mankind to be more deeply indebted. If it had nev^r
existed, I do not see how any one of the primitive
groups, whatever were their nature, could have ab-
sorbed another, or on what terms any two of them
could have combined, except those of absolute superi-
ority on one side and absolute subjection on the other.
No doubt, when with our modem ideas we contem-
plate the union of independent communities, we can
suggest a hundred modes of carrying it out, the
simplest of all being that the individuals comprised
in the coalescing groups shall vote or act together

CHAP. V. FICTION OF ADOPTION- 131

according to local propinquity; but tke 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, how-
ever, 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 sug-
gested 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

132 PRIMITIVE SOCIETY AND ANCIENT LAW. chap. v.

ingredients recombined, it was on the model or prin-
ciple of an association of kindred. Whatever were the
fact, all thought, language, and law adjusted them-
selves to the assumption. But though all this seems
to me to be established with reference to the commu-
nities with whose records we are acquainted, the
remainder of their history sustains the position before
laid down as to the essentially transient and termi-
nable influence of the most powerful Legal Fictions.
At some point of time — probably as soon as they felt
themselves strong enough to resist extrinsic pres-
sure — all these states ceased to recruit themselves
by factitious extensions of consanguinity. They ne-
cessarily, therefore, became Aristocracies, in all cases
where a fresh population from any cause collected
around them which could put in no claim to commu-
nity of origin. Their sternness in maintaining the
central principle of a system under which political
rights were attainable on no terms whatever except
connexion in blood, real or artificial, taught their
inferiors another principle, which proved to be en-
dowed with a far higher measure of vitality. This
was the principle of local contiguity^ now recognised
everywhere -as the condition of community in poli*
tical functions. A new set of political ideas came at
once into existence, which, being those of ourselves,
our contemporaries, and in great measure of our
ancestors, rather obscure our perception of the older
theory which they vanquished and dethroned.

CHAP. V. THE ANCIENT FAMILY. 133

The Family then is the type of an archaic society
in all the modifications which it was capable of
assuming; but the family here spoken of is not ex-
actly the family as understood by a modem. 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 makts the
slightest difference between a real and an adoptive
connexion. On the other hand, the persons theo-
retically amalgamated into a family by their common
descent are practically held together by common obe-
dience to their highest living ascendant, the father,
grandfather, or great-grandfather. The patriarchal
authority of a chieftain is as necessary an ingredient
in the notion of the family group as the fact (or as-
sumed fact) of its having sprung from his loins; and
hence we must understand that if there be any 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

K 3

134 PRIMITIVE SOCIETY AND ANCIENT LAW, cuap. v.

the threshold of primitive jurisprudence. Older pro-
bably 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 con-
sanguinity had ceased to be associated with the com-
position of States. It will be found to have stamped
itself on aU the great departments of jurisprudence,
and may be detected, I think, as the true source of
many of their most important and most durable cha-
racteristics. At the outset, the peculiarities of law
in it« 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 through-
out Europe. There are societies open to our observa-
tion 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 por-
tions of each system which were most deeply affected
by the primitive conception of the family. In one
all-important instance, that of the Romaft 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

CHAP. V. THE PATRIA POTESTAS. 135

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
modem 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 stiU 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 caU by its later
Roman name of Patria Potestas. No feature of the
rudimentary associations of mankind is deposed to by
a greater amount of evidence than this, and yet none
seems to have disappeared so generally and so rapidly
from the usages of advancing communities. Gains,
writing under the Antonines, describes the insti-
tution 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

K 4

136 PRIMITIVE SOCIETY AND ANQENT LAW. chap. v.

stock fipom which the Romans sprang was repeating
their Patria Potestas in some of its most technical
incidents. But among the races understood to be
comprised within the Roman empire, Gains could
find none which exhibited an institution resembling
the Roman " Power of the Father," except only the
Asiatic Galatse. There are reasons, indeed, as it seems
to me, why the direct authority of the ancestor should,
in the greater number of progressive societies, very
shortly assume humbler proportions than belonged to
it in their earliest state. The unplicit obedience of
rude men to their parent is doubtless a primary fact,
which it would be absurd to explain away altogether by
attributing to them any calculation of its advantages ;
but, at the same time, if it is natural in the sons to
obey the father, it is equally natural that they should
look to him for superior strength or superior wisdom.
Hence, when societies are placed under circumstances
which cause an especial value to be attached to
bodily and mental vigour, there is an influence at
work which tends to confine the Patria Potestas to
the cases where its possessor is actually skilful and
strong. When we obtain our first glimpse of orga-
nised Hellenic society, it seems as if supereminent
wisdom would keep alive the father's power in per-
sons whose bodily strength had decayed; but the
relations of Ulysses and Laertes in the Odyssee appear
to show that, where extraordinary valour and sagacity

CHAP. V. THE PATRIA POTESTAS. 137

were united in the son, the father in the decrepitude
of age was deposed from the headship of the family.
In the mature Greek jurisprudence, the rule advances
a few steps on the practice hinted at in the Homeric
literature; and though very mq,ny traces of stringent
family obligation remain, the direct authority of the
parent is limited, as in European codes, to the non-
age or minority of the children, or, in other words,
to the period during which their mental and physical
inferiority may always be presumed. The Roman
law, however, with its remarkable tendency to inno-
vate on ancient usage only just so far as the exigency
of the commonwealth may require, preserves both
the primeval institution and the natural limitation to
which I conceive it to have been subject. In every
relation of life in which the collective community
might have occasion to avail itself of his wisdom and
strength, for all purposes of counsel or of war, the
filius familias, or Son under Power, was as free as his-
father. It was a maxim of Roman jurisprudence'
that the 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,

138 PRIMITIVE SOCIETY AND ANCIENT LAW. chap. v.

and the number of centuries through which it en-
dured, constitutes one of the strangest problems in
legal history. ^

The Patria Potestas of the Romans, which is neces-
sarily our type of the primeval paternal authority, is
equally difficult to understand as an institution of
civilised life, whether we consider its incidence on the
person or its effects on property. It is to be regretted
that a chasm which exists in its history cannot be
more completely filled. So far as regards the person,
the parent, when our information commences, has
over his children the jus vitce necisque^ the power of
life and death, and a fortiori of uncontrolled corporal
chastisement; he can modify their personal condition
at pleasure ; he can give a wife to his son ; he can give
his daughter in marriage ; he can divorce his children
of .either sex; he can transfer them to another family
by adoption ; and he can sell them. Late in the Im-
perial period we find vestiges of all these powers, but
they are reduced within very narrow limits. The
unqualified right t)f domestic chastisement has become
a right of bringing domestic offences under the cog-
nisance of the civil magistrate; the privilege of dic-
tating marriage has declined into a conditional veto;
the liberty of selling has been virtually abolished,
and adoption itself, destined to lose ahnbst all its
ancient importance in the reformed system of Justi-
nian, can no longer be effected without the assent of

CHAP. V. THE PATRIA POTESTAS. 139

the child transferred ta the adoptive parentage. In
short, we are brought very close to the verge of the
ideas which have at length prevailed in the modem
world. But between these widely distant epochs
there is an interval of obscurity, and we can only
guess at the causes which permitted thePatriaPotestas
to last as long as it did by rendering it more tolerable
than it appears. The active discharge of ihe most
important among the duties which the son owed to the
state must have tempered the authority of his parent
if they did not annul it. We can readily persuade
ourselves that the paternal despotism could not be
brought into play without great scandal against a
man of full age occupying a high civil office. During
the earlier history, however, such cases of practical
emancipation would be rare compared with those
which must have been created by the constant wars
of the Roman republic. The military tribune and
the private soldier who were in the field three quar-
ters of a year during the earlier contests, at a later
period the proconsul in charge of a province, and the
legionaries who occupied it, cannot have had practical
reason to regard themselves as the slaves of a despotic
master; and all these avenues of escape tended con-
stantly to multiply themselves. Victories led to
conquests, conquests to occupations; the mode of
occupation by colonies was exchanged for the system
of occupying provinces by standing armies. Each

140 PRIMITIVE SOCIETY AND ANCIENT LAW. chap. v.

step in advance was a call* for the expatriation of
more Roman citizens and a fresh draft on the blood
of the failing Latin race. We may infer, I think,
that a strong sentiment in favour of the relaxation
of the Patria Potestas had become fixed by the time
that the pacification of the world commenced on
the establishment of the Empire. The first serious
blows at the ancient institution are attributed to the
earlier Caesars, and some isolated interferences of
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 efi^ecting a triple sale
of the son's person, is evidence, I may remark, of a
veryearly feeling against the unnecessary prolongation
^f the powers. The rule which declared that the son
should be free after having been three times sold
by his father seems to have been originally meant
to entail penal consequences on a practice which
revolted even the imperfect morality of the primitive
Roman. But even before the publication of the Twelve
Tables it had been turned, by the ingenuity of the
jurisconsults, into an expedient for destroying the
parental authority wherever the father desired that it
should cease.

cHAP.v. THE PATRIA POTESTAS. 141

Many of the causes which helped to litigate 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 juris-
prudence suggests that the father's rights over the
son's property were always exercised without scruple
to the full extent to which they were sanctioned by
law. There is nothing to astonish us in the latitude
of these rights when they first show themselves.
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 pos-
sibility of their claiming a separate ownership. The
father was entitled to take the whole of the son's
acquisitions, and to enjoy the benefit of his contracts
without being entangled in any compensating lia-
bility. So much as this we should expect from the
constitution of the earliest Roman society, for we
can hardly form a notion of the primitive family
group unless we suppose that its members brought
their earnings of all kinds into the common stock
while they were unable to bind it by improvident
individual engagements. The true enigma of the

142 PRIMITIVE SOCIETY AND ANCIENT LAW. cbap. v.

Patria FollBtas does not reside here, but in the slow-
ness with which these proprietary privileges of the
parent were curtailed, and in the circumstance that,
before they were seriously diminished, the whole
civilised worid 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 common-
wealth. Three centuries afterwards the same inunu-
nity was extended to the earnings of persons who
were in the civil employment of the state. Both
changes were obviously limited in their application,
and they were so contrived in technical form as
to interfere as little as possible with the principle
of Patria Potestas. A certain qualified and dependent
ownership had always been recognised by 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 ser-
vants. Other modifications of the parental privileges
followed, which showed a less studious outward
respect for the ancient principle. Shortly after the

CHAP. V. THE PATRIA POTESTAS. 143

introduction of the Quasi-castrense Peculium, Con-
stantine 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 import-
ance followed in the Western Empire, but the furthest
point reached was in the East, under Justinian, who
enacted that unless the acquidtions of the child were
derived from the parent's own property, the parent's
rights over, them should not extend beyond enjoy-
ing their produce for the period of his life. Even
this, the utmost relaxation of the Roman Fatria
Pot^stAS, left it far ampler and severer than any
analogous institution of the modern world. The
earliest modem 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 re-
sembling that which was described in the Pandects
and the Code. All the Germanic immigrants seem
to have recognised a corporate union of the family
under the mund^ or authority of a patriarchal chief ;
but his powers are obviously only the relics of a de-
cayed Patria Potestas, and fell far short of those
enjoyed by the Roman father. The Franks are
particularly mentioned as not having the Roman
Institution, and accordingly the old French law-
yers, even when most busily engaged in filling the

144 PRIMITIVE SOCIETY AND ANaENT LAW. chap. v.

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 phre en France rHa 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 difiusion of the Potestas over
the whole of a civilisation from which it had once
disappeared. While the Castrense Peculium consti-
tuted as yet the sole exception to the -father's power
over property, and while his power over his children's
persons was stiU extensive, the Roman citizenship,
and with it the Patria Potestas, were spreading into
every comer of the empire. Every African or
Spaniard, every Gaul, Briton, or Jew, who received
this honour by gift, purchase, or inheritance, placed
himself under the Roman Law of Persons, and, though
our authorities intimate that children bom before the
acquisition of citizenship could not be brought under
Power against their will, children born after it and
all ulterior descendants were on the ordinary footing
of a Roman j'iZeW/amzYia^. It does not fall within the
province of this treatise to examine the mechanism of
the later Roman society, but I may be permitted to
remark that there is little foundation for the opinion
which represents the constitution of Antoninus Cara-
calla conferring Roman citizenship on the whole of
his subjects as a measure of small importance. How-

CHAP. V. THE PATRIA POTESTAS. 145

ever we may interpret it, it must have enormously
enlarged the sphere of the Patria Potestas, and it
seems to me that the tightening of family relations
which it effected is an agency which ought to be kept
in view more than it has been, in accounting for the
great moral revolution which was transforming the
world.

Before this branch of our subject is dismissed,
it should be observed that the Paterfamilias was
answerable for the delicts (or torts) of his Sons under
Power. He was similarly liable for the torts of his
slaves ; but in both cases he originally possessed the
singular privilege of tendering the delinquent's person
in full satisfaction of the damage. The responsibility
thus incurred on behalf of sons, coupled with the
mutual incapacity of Parent and Child under Power
to sue one another, has seemed to some jurists to be
best explained by the assumption of a " unity of
person" between the Pater-familias and the Filius-
familias* In the Chapter on Successions I shall at-
tempt to show in what sense, and to what extent, this
" unity " can be accepted as a reality. I can only say
at present that these responsibilities of the Paterfami-
lias, and other legal phenomena which will be discussed
hereafter, appear to me to point at certain duties of
the primitive Patriarchal chieftain which balanced his
rights, I conceive that, if he disposed absolutely of
the persons and fortune of his clansmen, this repre-

L

146 PRIMITIVE SOCIETY AND ANCIENT LAW. chap. ▼.

sentative ownership was coextensive with a liability
to provide for all members of the brotherhood out of
the common fund. The difficulty is to throw our-
selves out of our habitual associations sufficiently for
conceiving the nature of his obligation. It was not
a legal duty, for law had not yet penetrated into the
precinct of the Family. To call it moral is perhaps
to anticipate the ideas belonging to a later stage of
mental development; but the expression " moral
obligation " is significant enough for our purpose, if
we understand by it a duty semi-consciously followed
and enforced rather by instinct and habit than by
definite sanctions.

The Patria Potestas, in its normal shape, has not
been, and, as it seems to me, could not have been, a
generally durable institution. The proof of its former
universality is therefore incomplete so long as we
consider it by itself; but the demonstration may be
carried much further by examining other departments
of ancient law which depend on it ultimately, but not
by a thread of connexion visible in all its parts or to
all eyes. Let us turn for example to Kinship, or in
other words, to the scale on which the proximity of
relatives to each other is calculated in archaic juris-
prudence. Here again it will be convenient to em-
ploy the Roman terms. Agnatic and Cognatic relation-
ship. Cognatic relationship is simply the conception
of kinship familiar to modem ideas ; it is the relation-

CHAP. V. AGNATION AND COGNATION. 147

ship arising through common descent from the same
pair of married persons, whether the descent be
traced through males or females. Agnatic relation-
ship is something very different : it excludes a num-
ber of persons whom we in our day should certainly
consider of kin to ourselves, and it includes many
more whom we should never reckon among our
kindred. It is in truth the connexion existing be-
tween the members of the Family, conceived as it
was in the most ancient times. The limits of this
connexion are far from conterminous with those
of modem 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 con-
nexion in blood which it indicates depends on the
particular marriage which is selected as the com-
mencement of the calculation. If we begin with the
marriage of father and mother. Cognation 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 in-
cluded in the notion of Cognation, and following the
same process a larger number of Cognates may be
continually obtained by choosing the starting point

L 2

\

148 PRIMITIVE SOCIETY AND ANCIENT LAW. chap. v.

higher and higher up in the line of ascent. All this
is easily understood by a modem; but who are the
Agnates? In the first place, they are all the Cognates
who trace their connexion exclusively through males.
A table of Cognates is, of course, formed by taking
each lineal ancestor in turn and including all his
descendant^ of both sexes in the tabular view; if
then, in tracing the various branches of such a ge-
nealogical table or tree, we stop whenever we come
to the name of a female and pursue that particular
branch or ramification no further, all who remain
after the descendants of women have been excluded
are Agnates, and their connexion together is Agnatic
Relationship. I dwell a little on the process which is
practically followed in separating them from the Cog-
nates, because it explains a memorable legal maxim,
"^ " Mulier est finis familisB" — 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 pri-
mitive notion of family relationship.

If the system of archaic law at which we are look-
ing be one which admits Adoption, we must add to
the Agnates thus obtained all persons, male or female,
who have been brought into the Family by the artifi-
cial extension of its boundaries. But the descendants
of such persons will only be Agnates, if they satisfy
the conditions which have just been described.

CHAP. V. AGNATIOJf. 149

What then is the reason of this arbitrary inclusion
and exclusion? Why should a conception of Kinship,
so elastic as to include strangers brought into the
family by adoption, be nevertheless so narrow as to
shut out the descendants of a female member? To
solve these questions, we must recur to the Patria
Potestas. The foundation of Agnation is not the
marriage of Father and Mother, but the authority of
the Father. All persons are Agnatically connected to-
gether who are imder 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 Potes-
tas. 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 female? are outside the limits of archaic
kinship. If a woman died unmarried, she could
have no legitimate descendants. If she married, her
children feU 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 per-

L 3

150 PRIMITIVE SOCIETY AND ANCIENT LAW. chap, v.

son might be subject to two distinct Patriae Potestates ;
but distinct Patriae Potestates implied distinct juris-
dictions, so that anybody amenable to two of them at
the same time would have lived under two different
dispensations. As long as the Family was an impe-
rium in imperio, a community within the common-
wealth, governed by its own institutions of which the
parent was the source, the limitation of relationship
to the Agnates was a necessary security against a
conflict of laws in the domestic forum.

The 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 Agna-
tion for the inquirer into the history of jurisprudence.
The Powers themselves are discernible in compara-
tively few 'monuments of ancient law, but Agnatic
Relationship, which implies their former existence, is
discoverable almost everywhere. There are few
indigenous bodies of law belonging to communities of
the Indo-European stock, which do not exhibit pecu-
liarities in the most ancient part of their structure
which are clearly referable to Agnation. In Hin-
doo 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 omit-
ted altogether. The same view of relationship per-

CHAP. V. THE HALF-BLOOD. 151

vades so mucli 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 modem European jurisprudence, if it had
not been for the vast influence of the later Roman
law on modern thought. The Praetors early laid hold
on Cognation as the natural form of kinship, and
spared no pains in purifying their system from the
older conception. Their ideas have descended to us,
but still traces of Agnation are to be seen in many of
the modem rules of succession after death. The ex-
clusion of females andtheir 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 succes-
sion to allodial property. In Agnation too is to
be sought the explanation of that extraordinary rule
of English Law, only recently repealed, which prohi-
bited 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 de-
duction 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

L 4

152 PRIMITIVE SOCIETY AND ANCIENT LAW. chap. v.

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 differ-
ent wives. In all the literature which enshrines the
pretended philosophy of law, there is nothing more
curious than the pages of elaborate sophistry in
which Blackstone attempts to explain and justify the
exclusion of the half-blood.

It may be shown, I think, that the Family, as held
together by the Patria Potestas, is the nidus out of
which the entire Law of Persons has germinated. Of
all the chapters of that Law the most important is
that which is concerned with the status of Females.
It has just been stated that Primitive Jurisprudence,
though it does not allow a Woman to communicate
any rights of Agnation to her descendants, includes
herself nevertheless in the Agnatic bond. Indeed,
the relation of a female to the family in which she
was born is much stricter, closer, and more durable
than that which unites her male kinsmen. We have
several times laid down that early law takes notice of
Families only ; this is the same thing as saying that
it only takes notice of persons exercising Patria
Potestas, and accordingly the only principle on which
it enfranchises a son or grandson at the death of his
Parent, is a consideration of the capacity inherent in
such son or grandson to become himself the head of a
new family*and the root of a new set of Parental

CHAP. V. GUARDIANSHIP OF WOMEN. 153

Powers. But a woman, of course, has no capacity of
the kind, and no title accordingly to the liberation
which it confers. There is therefore a peculiar
contrivance of archaic jurisprudence for retaining her
in the bondage of the Family for life. This is the
institution known to the oldest Roman law as the
Perpetual Tutelage of Women, under which a Female,
though relieved from her Parent's authority by his
decease, continues subject through life to her nearest
male relations as her Guardians. Perpetual Guardian-
ship 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 wo-
men 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 disap-
peared. We should know almost nothing about it, if
we had only the compilations of Justinian to consult;
but the discovery of the manuscript of Gains discloses
it to us at a most interesting epoch, just when it had

/,•;,: m '^ ^IMITIVE SOCIETY AND ANCIENT LAW. chap, v^

Mien 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 displaymg 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 were
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 modem
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 Ustis, the Husband acquired a

ANCIENT ROMAN MARRIAGE. /|.#AWl4M1lOUL^

number of rights over the person and propekyWtftR ART.
wife, which were on the whole in excess of sucn^
conferred on him in any system of modem jurispru-
dence. But in what capacity did he acquire them?
Not as Husband^ but as Father. By the Confarreation,
Coemption, and Usus, the woman passed in manum
viri^ that is, in law she became the Daughter of
her husband. She was included in his Patria
Potestas. She incurred aU 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 mecha-
nism 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 con-
trol overrode, in many material respects, the inferior
authority of her husband. The consequence was

156 PRIMITIVE SOCIETY AND ANCIENT LAW. chap. v.

that the situation of the Roman female, whether mar-
ried 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 remark-
able liberty. Led at first by justifiable disrelish for
the loose practices of the decaying heathen world,
but afterwards hurried on by a passion of asceticism,
the professors of the new faith looked with disfavour
on a marital tie which was in fact the laxest the West-
em world has seen. The latest Roman law, so far as it
is touched by the Constitutions of the Christian Em-
perors, 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 fiimace 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 modem history,
and while the laws of the Germanic and Sclavonic
immigrants remained superposed like a separate layer
above the Roman jurisprudence of their provincial

CHAP. V. COiroiTION OF WOMEN. 157

subjects, the women of the dominant races are seen
-everywhere under various forms of archaic guardian-
ship, and the husband who takes a wife from any
family except his own pays a money-price to her
relations for the tutelage which they surrender to
him. When we move onwards, and the code of the
middle ages has been formed by the amalgamation of
the two systems, the law relating to women carries
the stamp of its double origin. The principle of
the Eoman 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 barba-
rians 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 there-
fore the modern law of Western and Southern Europe
begins to be distinguished by one of its chief cha-
racteristics, the comparative freedom it allows to
unmarried women and widows, the heavy disabilities
it imposes on wives. It was very long befqje 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 Justi-
nian, wherever it was studied with that passionate

158 PRIMITIVE SOCIETY AND ANaENT LAW. chap. v.

enthusiasm which it seldom failed to awaken. It
covertly but most efficaciously undermined the cus-
toms which it pretended merely to interpret. But
the Chapter of law relating to married women was
for the most part read by the light, not of Roman,
but of Canon Law, which in no one particular departs
so widely from the spirit of the secular jurisprudence
as in the view it takes of the relations created by
marriage. This was in part inevitable, since no
society which preserves any tincture of Christian
institution is likely to restore to married women the
personal liberty conferred on them by the middle
Roman law, but the proprietary disabilities of married
females stand on quite a 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
Napoleon; but the state of the Scottish law shows
that scrupulous deference to the doctrines of the
Roman jurisconsults did not always extend to miti-

CHAP. V. CONDITION OP WOMEN. 159

gating the disabilities of wives. The systems how-
ever which are least indulgent to married women are
invariably those which have followed the Canon Law
excltteively, 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 aU 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 for 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 differ-

>

160 PRIMITIVE SOCIETY AND ANCIENT LAW. chap, v

ence 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 theTutelage 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 Eoman law, which maybe taken as
their type, the son who was delivered fromPatriaPotes-
tas by the death of his Father or Grandfather remained
under guardianship till an epoch which for general pur-
poses 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 inde-
pendence. The period of minority appears therefore
to have been as unreasonably short as the duration
of the disabilities of women was preposterously long.
But, in point of fact, there was no element either of
excess or of shortcoming in the circumstances which
gave their original form to the two kinds of guardian-
ship. Neither the one nor the other of them was
based on the slightest consideration of public or

CHAP. V. GUARDIANSHIP OF ORPHANS. 161

private convenience. The guardianship of male
orphans was no more designed originally to shield
them till the arrival of years of discretion than the
tutelage of women was intended to protect the other
sex against its own feebleness. The reason why the
death of the father delivered the son from the bond-
age of the femily was the son's capacity for becoming
himself the head of a new family and the founder of a
newPatriaPotestas ; no such capacity was possessed by
the woman and therefore she was never enfranchised.
Accordingly the Guardianship of Male Orphans was a
contrivance for keeping alive the semblance of subor-
dination to the family of the Parent, up to the time
when the child was supposed capable of becoming a
parent himself. It was a prolongation of the Patria
Potestas up to the period of bare physical manhood.
It ended with puberty, for the rigour of the theory
demanded that it should do so. Inasmuch, however,
as it did not profess to conduct the orphan ward to
the age of intellectual maturity or fitness for affairs,
it was quite unequal to the purposes of general con-
venience; and this the Romans seem to have dis-
covered at a very early stage of their social progress.
One of the very oldest monuments of Roman legisla-
tion is the Lex Lcetoria or Plcetoria which placed all
free males who were of full years and rights under
the temporary control of a new class of guardians,
called Curatores^ whose sanction was required to

M

^^

162 PRIMITIVE SOCIETY AND ANCIENT LAW. chap. v.

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 modem 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 pro-
tection against physical weakness and for protection
against intellectual incapacity, the Romans looked to
two different institutions, distinct both in theory and
design. The ideas attendant on both are combined
in the modem idea of guardianship.

The Law of Persons contains but one other chapter
which can be usefully cited for our present purpose.
The legal rules by which systems of mature juris-
prudence regulate the connection oi Master and Slave^
present no very distinct traces of the original condi-
tion common to ancient societies. But there are
reasons for this exception. There seems to be some-
thing in the institution of Slavery which has at
aU 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 commu-
nities almost unconsciously experienced appears to
have always resulted in the adoption of some imagi-

CHAP. V, MASTER AND SLAVE. 163

nary principle upon which a defence, or at least a
rationale, of slavery could be plausibly founded.
Very early in their history the Greeks explained the
institution as grounded on the intellectual inferiority
of certain races and their consequent natural aptitude
for the servile condition. The Romans, in a spirit
equally characteristic, derived it from a supposed
agreement between the victor and the vanquished in
which the first stipulated for the perpetual services
of his foe; and the other gained in consideration
the life which he had legitimately forfeited. Such
theories were not only unsound but plainly unequal
to the case for which they affected to account. Still
they exercised powerful influence in many ways.
They satisfied the conscience of the Master. They
perpetuated and probably increased the debasement
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 be-
stowed in the United States of America on the ques-
tion 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

11 2

164 PRIMITIVE SOCIETY AND ANCIENT LAW. cbap. v.

be given. It is clear, from the testimony both of
ancient law and of many primeval histories, that the
Slave might under certain conditions be made the
Heir, or Universal Successor, of the Master, and this
significant faculty, as I shall explain in the Chapter
on Succession, implies that the government and re-
presentation of the Family might, in a particular state
of circumstances, devolve on the bondman. It seems,
however, to be assumed in the American arguments
on the subject that, if we allow Slavery to have been
a primitive Family institution, the acknowledgment
is pregnant with an admission of the moral defensi-
bility of Negro-servitude at the present moment.
What then is meant by saying that the Slave was
origitially included in the Family ? Not that his situa-
tion 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 conse-
quence is, in fact, carried in the general assertion

CHAP. V. SLAVERY. 165

already made that the primitive ideas of mankind
were unequal to comprehending any basis of the con-
nection inter se of individuals, apart from the rela-
tions of familyr 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 bom 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 practi-
cally assimilated to the Slave, than that the Slave
shared any of the tenderness which in later times was
shown to the son. But it may be asserted with some
confidence of advanced and matured codes that,
wherever servitude is sanctioned, the slave has uni-

M 3

166 PRIMITIVE SOCIETY AND ANCIENT LAW. chap. v.

formly greater advantages under systems which pre-
serve 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 servi-
tude is sanctioned by institutions which have been
deeply affected by Roman jurisprudence, the servile
condition is never intolerably wretched. There is a
great deal of evidence that in those American States
which have taken the highly Romanised code of
Louisiana as the basis of their jurisprudence, the lot
and prospects of the negro-population 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

CHAP. V. ANCIENT LAW. 167

of the irresponsible commands which, in a still earlier
condition of the race, the head of each isolated house-
hold may have addressed to his wives, his children,
and his slaves. But, even after the State has been
organised, the laws have still an extremely limited
application. Whether they retain their primitive
character as Themistes, or whether they advance to
the condition of Customs or Codified Texts, they are
binding not on individuals, but on Families. Ancient
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 so-
ciety. 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 pro-
gress, a greater number of personal rights and a
larger amount of property are removed from the do-
mestic forum to the cognizance of the public tribu-
nals. The ordinances of the government obtain
gradually the same efficacy in private concerns as
in matters of state, and are no longer liable to be

M 4

168 PRIMITIVE SOCIETY AND ANQENT LAW. chap, r-

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 in-
stitutions from the re-combined materials, institutions
some of which descended unimpaired to the modern
world, while others, destroyed or corrupted by con-
tact with barbarism in the dark ages, had again to be
recovered by mankind. When we leave this juris-
prudence at the epoch of its final reconstruction by
Justinian, few traces of archaism can be discovered in
any part of it except in the single article of the ex-
tensive powers still reserved to the living Parent.
Everywhere else principles of convenience, or of sym-
metry, or of simplification — new principles at any
rate — have usurped the authority of the jejune con-
siderations which satisfied the conscience of ancient
times. Everywhere a new morality has displaced the
canons of conduct and the reasons of acquiescence
which were in unison with the ancient usages, because
in fact they were bom of them.

The movement of the progressive societies has
been uniform in one respect. Through all its course
it has been distinguished by the gradual dissolution 4
of family dependency and the growth of individual
obligation in its place. The Individual is steadily
substituted for the Family, as the unit of which civil
laws take account. The advance has been accom-
plished at varying rates of celerity, and there are

CHAP. V. DISINTEGRATION OP THE FAMILY. 169

societies not absolutely stationary in which the col-
lapse of the ancient organisation can only be perceived
by careful study of the phenomena they present.
But, whatever its pace, the change has not been
subject to reaction or recoil, and apparent retarda-
tions 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 contrac-
tual relation of the servant to his master. The
status of the Female under Tutelage, if the tutelage
be understood of persons other than her husband, has
also ceased to exist; from her coming of age to her
marriage all the relations she may form are relations
of contract. So too the status of the Son under Power
has no true place in law of modem European societies.
If any civil obligation binds together the Parent and
the child of full age, it is one to which only contract

170 PRimnVE SOCIETY AND ANCIENT LAW. chap. v.

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 diflferently
expressed in the conventional language of different
systems, but fxi 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 /r(?/?i Status to Contract.

CHAP. VI. TESTAMENTS. 171

CHAP. VI.

THE EARLY HISTORY OF TESTAMENTARY SUCCESSION.

If an attempt were made to demonstrate in England
the superiority of the historical method of investiga-
tion to the modes of inquiry concerning Juris-
prudence which are in fashion among us, no depart-
ment of Law would better serve as an example than
Testaments or Wills. Its capabilities it owes to its
great length and great continuity. At the beginning
of its history we find ourselves in the very infancy of
the social state^ surrounded by conceptions which it
requires some effort of mind to realise in their an-
cient 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 modem times, and exhibit-
ing therefore a difficulty of another kind, the diffi-
culty of believing that ideas which form part of our
everyday mental stock can really stand in need of
analysis and examination. The growth of the Law of

172 TESTAMENTARY LAW. chap. vi.

Wills between these extreme points can be traced
with remarkable distinctness. It was much less in-
terrupted at the epoch of the birth of feudalism, than
the history of most other branches of law. It is, in-
deed, true that as regards all provinces of jurispru-
dence, the break caused by the division between
ancient and 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 after-

CHAP. VI. INFLUENCE OF THE CUURCII. 173

wards in all its integrity. The influence of the
Church had much to do with this rapid assimilation.
The ecclesiastical power had very early succeeded to
those privileges of custody and registration of Testa-
ments which several of the heathen temples had en-»
joyed; and even thus early it was almost exclusively
to private bequests that the religious foundations
owed their temporal possessions. Hence it is that
the decrees of the earliest Provincial Councils per-
petually contain anathemas against those who deny
the sanctity of Wills. Here, in England, Church in-
fluence was certainly chief among the causes which
by universal 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 Eccle-
siastical Courts, which applied to them, though not
always intelligently, the principles of Roraan juris-
prudence; and, though neither the courts of Common
Law nor the Court of Chancery owned any positive
obligation to follow the Ecclesiastical tribunals, they
could not escape the potent influence of a system of
settled rules in course of application by their side.
The English law of testamentary succession to per-
sonalty has become a modified form of the dispen-
sation under which the inheritances of Boman citizens
were administered.

174 ANCIENT WILLS. chap. vi.

It is not difficult to point out the extreme difference
of the conclusions forced on us by the historical treat-
ment of the subject, from those to which we are con-
ducted when, without the help of history, we merely
strive to analyse our primA facie impressions. I sup-
pose there is nobody who, starting from the popular or
even the legal conception of a Will, would not imagine
that certain qualities are necessarily attached to it.
He would say, for example, that a Will necessarily
takes effect at death only^ — ^that it is secret^ not known
as a matter of course to persons taking interests
under its provisions, — that it is revocable^ i.e. always
capable of being superseded by a new act of testation.
Yet I shall be able to show that there was a time
when none of these characteristics belonged to a Will.
The Testaments from which our Wills are directly
descended at first took effect immediately on their exe-
cution ; they were not secret ; they were not revocable.
Few legal agencies are, in fact, the fruit of more
complex historical agencies than that by which a
man's written intentions control the posthumous dis-
position of his goods. Testaments very slowly and
gradually gathered round them the qualities I have
mentioned ; and they did this from causes and under
pressure of events which may be called casual, or
which at any rate have no interest for us at present,
except so far as they have affected the history of
law.

CHAP. yi. NATURAL RIGHT OF TESTATION. 175

At a time when legal theories were more abundant
than at present, — ^theories which, it is true, were for
the most part gratuitous and premature enough, but
which nevertheless rescued jurisprudence from that
worse and more ignoble condition, not unknown to
ourselves, in which nothing like a generalisation is
aspired to, and law is regarded as a mere empirical
pursuit — it was the fashion to explain the ready
and apparently intuitive perception which we have
of certain qualities in a WiU, 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 character-
istics had their origin within historical memory; at
the same time, vestiges of the theory of which the
doctrine is an offshoot, linger in forms of expression
which we all of us use and perhaps scarcely know how
to dispense with. I inay illustrate this by mention-
ing a position common in the legal literature of the
17th century. The jurists of that period very com-
monly assert that the power of Testation itself is of
Natural Law, that it is a right conferred by the Law
of Nature. Their teaching, though all persons may
not at once see the 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

176 NATURAL RIGHT OF TESTATION. chap. vi.

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 devolu-
tion which the property of deceased persons ought
primarily to follow, and then proceeds to account for
succession ah intestato as the incidental provision of
the lawgiver for the discharge of a function which
was only left unperformed through the neglect or
misfortune of the deceased proprietor. These opinions
are only expanded forms of the more compendious
doctrine that Testamentary disposition is an institu-
tion of the Law of Nature. It is certainly never quite
safe to pronounce dogmatically as to the range of
association embraced by modem 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 in-
stinct and impulse. With respect to the first of these
positions, I think that, when explicitly set forth, it
can never be seriously contended for in an age which
has seen the severe restraints imposed on the Testa-
mentary Power by the Code Napoleon^ and has wit-
nessed the steady multiplication of systems for which
the French codes have served as a model. To the

CHAP. VI. NATURE OF A WILL. 177

second assertion we must object that it is contrary to
the best-ascertained facts in the early history of law,
and I venture to affirm generally that, in all indi-
genous societies, a condition of jurisprudence in which
Testamentary privileges are not allowed, or rather
not contemplated, has preceded that later stage of
legal development in which the mere will of the pro-
prietor is permitted under more or less of restriction
to override the claims of his kindred in blood.

The conception of a Will or Testament cannot be
considered by itself. It is a member, and not the
first, of a series of conceptions. 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 dis-
cussion, there are several preliminary points to be
examined, — as for example, what is it, what sort of
right or interest, which passes from a dead man on
his decease ? to whom and in what form does it pass?
and how came it that the dead were allowed to
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 Testa-
ment is an instrument by which the devolution of an
inheritance is prescribed. Inheritance is a form of
universal succession. A universal succession is a
succession to a universitas juris, or university of

N

178 UNIVERSITAS JURIS. chap. vi.

rights and duties. Inverting this order we have
therefore to inquire what is a universitaa juris ; what
is a universal succession ; what is the form of uni-
versal 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.
K 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 universitaa
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

CHAP. VI. UNIVERSAL SUCCESSION. 179

expression universitas juris is not classical, but for the
notion jurisprudence is exclusively indebted to Roman
law ; nor is it aU 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 iQvested 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

H 2

180 UNIVERSAL SUCCESSION. chap. vi.

heir, part as purchaser, part as legatee. But though
the group of rights and duties thus made up should
in fact amount to the whole legal personality of a
particular individual, the acquisition would not be a
universal succession. In order that there may be a
true universal succession, the transmission must be
such as to pass the whole aggregate of rights and
duties at the ^ame' 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 uni-
versal succession, though as the assignee only pays
debts to the extent of the assets this is only a modified
form of the primary notion. Were it common among
us for persons to take assignments of cdl a man's
property on condition of paying cUl his debts, such
transfers would exactly resemble the universal suc-
cessions 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

CHAP. VI. THE UNIVERSAL SUCCESSOR. 181

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, Haareditas or Inheritance. Inheritance
was a universal succession occurring at a death.
The universal successor was Haeres or Heir. He
stepped at once into all the rights and all the duties of
the dead man. He was instantly clothed with his
entire legal person, and I need scarcely add that the
special character of the Hseres remained the same,
whether he was named by a Will or whether he took
on an Intestacy. The term HsBres is no more emphati-
cally used of the Intestate than of the Testamentary
Heir, for the manner in which a man became Haeres
had nothing to do with the legal character he sus-
tained. The dead man's universal successor, however
he became so, whether by WiU 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 Boman definition
of an Inheritance. The reader will be in a posi-
tion to appreciate the full force of the separate
terms. Hcereditaa est successio in unix^ersum 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

n 3

18-2 THE HEIR. chap. vi.

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 con-
cerned) was continued. Our own law, in constitu-
ting the Executor or Administrator the representative
of the deceased to the extent of his personal assets,
may serve as an illustration of the theory firom 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 testa-
ment lost all its effect.

In modem 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

CHAF. Ti. PRIMITIVE SOCIETY. 183

bring into greater clearness the train of ideas which
I have been endeavouring to indicate, I must borrow
the results of the inquiry which was attempted in the
earlier portion of the preceding chapter. We saw
one peculiarity invariably distinguishing the infancy
of society. Men are regarded and treated, not as
individuals, but always as members of a particular
group. Everybody is first a citizen, and then, as a
citizen, he is a member of his order — of an aristocracy
or a democracy, of an order of patricians or plebeians ;
or, in those societies which an unhappy fate has
afflicted with a special perversion in their course of
development, of a caste. Next, he is a member of a
gens, house, or clan ; and lastly, he is a member of
\n& 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 primi-
tive society given before. It has for its units, not
individuals, but groups of men united by the reality
or the fiction of blood-relationship.
. 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 modem state,
the commonwealths of primitive times may be fairly
described as consisting of a number of little despotic
governments, each perfectly distinct from the rest,

N 4

184 THE PRIMITIVE FAMILY. chap. vi.

each absolutely controlled by the prerogative of a
single monarch. But though the Patriarch, for we
must not yet call him the Pater-familias, had rights
thus extensive, it is impossible to doubt that he
lay under an equal amplitude of obligations. If he
governed the family, it was for its behoof. If he was
lord of its possessions, he held them as trustee for his
children and kindred. He had no privilege or position
distinct from that conferred on him by his relation to
the petty conmionwealth 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 contempla-
tion of his fellow-citizens and in the eye of the law,
quite as much those of the collective body as his own.
Let us consider for a moment the effect which would
be produced by the death of such a representative.
In the eye of the law, in the view of the civU magis-
trate, the demise of the domestic authority would be
a perfectly immaterial event. The person represent-
ing the collective body of the family and primarily
responsible to mimicipal 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 con-
tinuity, to his successor; for, in point of fact, they
would be the rights and obligations of the family, and

CHAP. VI. THE FAMILY A- COKPORATION. 185

the family had the distinctive characteristic of a
corporation — that it never died. Creditors would
have the same remedies against the new chieftain as
against the old, for the liability being that of the still
existing family would be absolutely unchanged. All
rights available to the family would be as available
after the demise of the headship as before it — except
that the Corporation would be obliged — if indeed
language so precise and technical can be properly
used of these early times — would be obliged to site
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 revolu-
tion had apparently quite accomplished itself, even
when the magistrate had in great measure assumed
the place of the Pater-familias, and the civil tribunal
substituted itself for the domestic forum, nevertheless
the whole scheme of rights and duties administered
by the judicial authorities remained shaped by the
influence of the obsolete privileges and coloured in
every part by their reflection. There seems little
question that the devolution of the Universitas Juris,

186 FAMILIES AND INDIVIDUALS. chap. vi.

SO strenuously insisted upon by the Roman Law as
the first condition of a testamentary or inteBtefee suc-
cession, 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 pro-
longation of a man's legal existence in his heir, or in
a group of co-heirs, is neither more nor less than a cha-
racteristic of the family transferred by a fiction to the
individitaL Succession in corporations is necessarily
universal, and the family was a corporation. Corpo-
rations never die. The decease of individual members
makes no difference to the collective existence of the
aggregate body, and does not in any way affect its legal
incidents, its faculties or liabilities. Now in the 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 uni-
versal succession, and there is perhaps no topic in the
philosophy of jurisprudence on which their specula-

CHAP, VI. CORPORATIONS SOLE. 187

tions, as a general rule, possess so little valae. But
the student of English law ought to be in no danger
of Btumblmg at the analysis of the idea which we are
examinmg. 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 Cor-
porations sole. The capacity or office is here consi-
dered apart fi^om the particular person who from
time to time may occupy it, and, this capacity being
perpetual, the series of individuals who fill it are
clothed with the leading attribute of Corporations —
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 jurispru-
dence 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 Juris-
prudence each individual citizen was a Corporation
sole, we shall not only realise the full conception of
an inheritance, but have constantly at command the
clue to the assumption in which it originated. It is

189 INTESTATE SUCCESSION, chap, vt-

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 devo-
lution of rights and obligations. The testator lived
on in his heir or in the group of his co-heirs. He was
in law the same person with them, and if any one in
his testamentary dispositions had even constructively
violated the principle which united his actual and his
posthxunous 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 suc-
ceeded did not simply represent the deceased, but, in
conformity with the theory just delineated, they con-
tinued his civil life, his legal existence. The same
results followed when the order of succession was
determined by a Will, but the theory of the identity
between the dead man and his heirs was certainly much
older than any form of Testament or phase of Testa-

CHAP. VI. OLD NOTION OF INHERITANCE. 189

mentary jurisprudence. This indeed is the proper
moment for suggesting a doubt which will press on
us with greater force the further we plumb the depths
of this subject, — whether wills would ever have come
into being at all if it had not been for these remark-
able ideas connected with universal succession. Tes-
tamentary law is the application of a principle which
may be explained on a variety of philosophical hy-
potheses as plausible as they are gratuitous; it is
interwoven with every part of modem society, and it
is defensible on the broadest grounds of general
expediency. But the warning can never be too often
repeated, that the grand source of mistake in questions
of jurisprudence is the impression that those reasons
which actuate us at the present moment, in the main-
tenance of an existing institution, have necessarily
anything in common with the sentiment in which the
institution originated. 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 posthu-
mous existence in the person of his heir.

The conception of a universal succession, firmly as
it has taken root in jurisprudence, has not occurred
spontaneously to the framers of every body of laws.
Wherever it is now found, it may be shown to have
descended from Roman law; and with it have come
down a host of legal rules on the subject of Testa-

190 SUCCESSION TO THE FAMILY. chap. vi.

ments and Testamentary gifts, which modern practi-
tioners 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 suc-
cession is circling. The unflinching sternness of the
Roman law in enforcing compliance with the govern-
ing theoiy would in itself suggest that the theory
grew out of something in the primitive constitution
of Roman society; but we may push the proof a good
way beyond the presumption. It happens that several
technical expressions, dating from the earliest insti-
tution of Wills at Rome, have been accidentally pre-
served to us. We have in Gains the formula of
investiture by which the universal successor was
created. We have the ancient name by which the
person afterwards called Heir was at first designated.
We have further the text of the celebrated clause in
the Twelve Tables by 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 in-
dicate 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

CHAP. VI. ORIGINAL OBJECT OF WILLS. 191

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 instru-
ment, 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 whoUy 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 in-
herit a dead man's property is exactly co-extensive

102 THE HINDOO SACRA. chap. vi.

with the duty of performing his obsequies. If the
rites are not property performed or not performed by
the proper person, no relation is considered as es-
tablished between the deceased and anybody surviving
him; the Law of Succession does not apply, and
nobody can inherit the property. Every great event
in the life of a Hindoo seems to be regarded as
leading up to and bearing upon these solemnities.
If he marries, it is to have children who may celebrate
them after his death ; if he has no children, he lies
under the strongest obligation to adopt them from,
another family, "with a view," writes the Hindoo
doctor, "to the funeral cake, the water, and the
solenm sacrifice." The sphere preserved to the Roman
sacra in the time of Cicero, was not less in extent.
It embraced Inheritances and Adoptions. No Adop-
tion 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 apportion-
ment of the expenses of these ceremonies among the
diflFerent 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.

CHAP. VI. ROMAN AND HINDOO SACRA. J93

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 jurisdic-
tion 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 develop-
ment at which law breaks away from religion has
been passed, and we are prepared for their entire dis-
appearance from the later jurisprudence.

In Hindoo law there is no such thing as a true
Will. The place filled by Wills is occupied by Adop-
tions. We can now see the relation of the Testa-
mentary Power to the Faculty of Adoption, and the
reason why the exercise of either of them could call
up a peculiar solicitude for the performance of the
sacra. Both a Will and an Adoption threaten a dis-
tortion of the ordinary course of Family descent, but

o

194 WILLS AND ADOmONS. chap. vi.

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 sug-
gested itself to the greater part of archaic socie-
ties. The Hindoos have indeed advanced one point
on what was doubtless the antique practice, by allow-
ing the widow to adopt when the father has neg-
lected to do so, and there are in the local customs of
Bengal some faint traces of the Testamentary powers.
But to the Romans belongs pre-eminently the credit
of inventing the Will, the institution which, next to
the Contract, has exercised the greatest influence in
transforming human society. We must be careful not
to attribute to it in its earliest shape the functions
which have attended it in more recent times. It
was at first, not a mode of distributing a dead man's
goods, but one among several ways of transferring
the representation of the household to a new chief.
The goods descend no doubt to the Heir, but that is
only because the government of the family carries
with it in its devolution the power of disposing of
the common stock. We are very far as yet from
that stage in the history of Wills in which they
become powerful instruments in modifying society
through the stimulus they give to the circulation
of property and the plasticity they produce in pro-

CHAP. VI. ROMAN IDEAS OF SUCCESSION. 195

prietary rights. No such consequences as these ap-
pear in fact to have been associated with the Testa-
mentary 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 part-
ing 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 in-
deed 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 con-
tinuing the Family cannot but have had something
to do with the singular laxity of Roman notions as
to the inheritance of sovereignty. It is impossible
not to see that the succession of the early Roman
Emperors to each other was considered reasonably
regular, and that, in spite of all that had occurred,
no absurdity attached to the pretension of such
Princes as Theodosius or Justinian to style them-
selves Csesar and Augustus.

When the phenomena of primitive societies emerge
into light, it seems impossible to. dispute a propo-
sition which the jurists of the 17th century con-
sidered doubtful, that Intestate Inheritance is a more
ancient institution than Testamentary Succession.

o 2

196 RARITY OP TESTAMENTARY POWER, chap, vi.

As soon as this is settled, a question of much in-
terest suggests itself, how and under what conditions
were the directions of a will first allowed to regulate
the devolution of authority over the household^ and
consequently the posthumous distribution of pro-
perty. The difficulty of deciding the point arises
from the rarity of Testamentary power in archaic
communities. It is doubtftd 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
wiU 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 Ger-
man criticism has recently been directed to these
leges Barharorum^ the great object of investigation
being to detach those portions of each system which
formed the customs of the tribe in its original home
from the adventitious ingredients which were bor-
rowed from the laws of the Romans. In the course
of this process, one result has invariably disclosed
itself, that the ancient nucleus of the code contains
no trace of a Will. Whatever testamentary law
exists, has been taken from Roman jurisprudence.

CHAP. Yi. PRIMITIVE OPERATION OP WILLS. 197

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 Ro-
man 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 Rabbini-
cal jurisprudence, which pretends to supply the casus
omissi of the Mosaic law, allows the Power of Testa-
tion to attach when all the kindred entitled under
the Mosaic system to succeed have failed or are
undiscoverable. The limitations by which the ancient
German codes hedge in the testamentary jurispru-
dence which has been incorporated with them are

o 3

1S8 OLD GERMANIC WILLS. chap. vi.

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 testa-
ment but it is scarcely capable of being alienated
by conveyance inter vivos. The ancient German
law, like the Hindoo jurisprudence, makes the male
children co-proprietors with their father, and the
endowment of the family cannot be •parted with
except by the consent of all its members. But the
other sorts of property, of more modem 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 pre-
cinct of the Agnatic brotherhood. Now, it is on
these last descriptions of property, and on these
only, that the Testaments borrowed from Rome were
at first allowed to operate.

These few indications may serve to lend additional
plausibility to that which in itself appears to be the

CHAP. yi. THE COMITIA CALATA. 199

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

o 4

200 JURISDICTION OF THE COMITIA. chap. yi.

on the gentiles that is on the collective members of
the dead man's gens or House. The House, I have
explained already, was a fictitious extension of the
family, consisting of all Roman Patrician citizens
who bore the same name, and who, on the ground of
bearing the same name, were supposed to be de-
scended from a common ancestor. Now the Patri-
cian Assembly called the Comitia Curiata was a
Legislature in which Gentes or Houses were exclu-
sively represented. It was a representative assembly
of the Roman people, constituted on the assumption
that the constituent unit of the state was the Gens.
This being so, the inference seems inevitable, that the
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 inherit-
ance. The whole apparent anomaly is removed, if
we suppose that a Testament could only be made
when the testator had no gentiles discoverable, or
when they waived their claims, and that every
Testament was submitted to the General Assembly
of the Roman Gentes, in order that those aggrieved
by its dispositions might put their veto upon it if
they pleased, or by allowing it to pass might be
presumed to have renounced their reversion. It is
possible that on the eve of the publication of the
Twelve Tables this vetoing power may have been
greatly curtailed or only occasionally and capriciously

CHAP. Ti. PLEBEIAN WILLS. 201

exercised. It is much easier, however, to indicate
the meamng and origin of the jurisdiction confided
to the Comitia Calata, than to trace its gradual de-
velopment or progressive decay.

The Testament to which the pedigree of all modem
Wills may be traced is not, however, the Testament
executed in the Calata Comitia, but another Testa-
ment designed to compete with it and destined to
supersede it. The historical importance of this
early 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
ahnost all the great Roman institutions, it was
the subject of contention between the Patricians
and the Plebeians. The effect of the political
maxim, Plehs Gentem non habet, " a Plebeian
cannot be a member of a House," was entirely to
exclude the Plebeians from the Comitia Curiata.
Some critics have accordingly supposed that a
Plebeian could not have his Will read or recited
to the Patrician Assembly, and was thus deprived
of Testamentary privileges altogether. Others have
been satisfied to point out the hardships of having
to submit a proposed Will to the unfriendly juris-
diction of an assembly in which the Testator was not
represented. Whatever be the true view, a form

202 THE PLEBEIAN WILL. chap. vi.

of Testament came into use, which has all the cha-
racteristics of a contrivance intended to evade some
distasteful obligation. The Will in question was a
conveyance inter vivosy a complete and irrevocable
alienation of the Testator's family and substance to
the person whom he meant to be his heir. The
strict rules of Roman law must always have per-
mitted such an alienation, but, when the transaction
was intended to have a posthumous effect, there may
have been disputes whether it was valid for Testa-
mentary purposes without the formal assent of the
Patrician Pariiament. 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 Decem-
viral compromise. The text of the Twelve Tables
is still extant which says, " Pater familias uti de
pecunid tuteldve ret suce legdssit^ ita jus esto — a law
which can hardly have had any other object than the
legalisation of the Plebeian Will.

It is weU known to scholars that, centuries after
the Patrician Assembly had ceased to be the legis-
lature of the Roman State, it still continued to hold
formal sittings for the convenience of private busi-
ness. Consequently, at a period long subsequent
to the publication of the Decemviral Law, there is
reason to believe that the Comitia Calata still as-
sembled for the validation of Testaments. Its pro-

CHAP. VI. END OF THE COMITIA CALATA. 208

bable fiinctions may be best indicated by 8a3dng
that it was a Court of Registration, with the under-
standing 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 WiU had been ori-
ginally written, the office of the Comitia was cer-
tainly confined to hearing it read aloud, the docu-
ment being retained afterwards in the custody of
the Testator, or deposited under the safeguard of.
some religious corporation. This publicity may have
been one of the incidents of the Testament executed
in the Comitia Calata which brought it into popular
disfavour. In the early years of the Empire the
Comitia stiU 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
modem world. It acquired at Rome all the popu-
larity which the Testament submitted to the Calata
Comitia appears to have lost. The key to all its
characteristics lies in its descent from the mancipium^
or ancient Roman conveyance, a proceeding to

204 THE MANCIPATION. chap. vi.

which we may unhesitatingly assign the parentage
of two great institutions without which modem
society can scarcely be supposed capable of holding
together, the Contract and the Will. The m andpiunij
or as the word would exhibit itself in later Latinity,
the Mancipation, carries us back by its incidents
to the infancy of civU 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 caU the atten-
tion of the parties to the importance of the trans-
action, and to impress it on the memory of the wit-
nesses. The imperfection too of oral, as compared
with written, testimony necessitates the multipli-
cation of the witnesses and assistants beyond what
in later times would be reasonable or 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 Jive witnesses; and an
anomalous personage, the Libripens, who brought
with him a pair of scales to weigh the uncoined copper
money of ancient Rome. The Testament we are
considering — the Testament per ces et libram^ " with

CHAP. vi. WILL WITH COPPER AND SCALES. 205

the copper and the scales," as it loDg continued to
be technically called — was an ordinary Mancipa-
tion with no change in the form and hardly any in
words. The Testator was the grantor j the five
witnesses and the libripens were present; and the
place of grantee was taken by a person known
technically as the familicB emptor^ the Purchaser
of the Family. The ordinary ceremony of a Man-
cipation was then proceeded with. Certain formal
gestures were made and sentences pronounced. The
Emptor familicB simulated the payment of a price
by striking the scales with a piece of money, and
finally the Testator ratified what had been done
in a set form of words called the " Nuncupatio " or
publication of the transaction, a phrase which, I
need scarcely remind the lawyer, has had a long
history in Testamentary jurisprudence. It is ne-
cessary to attend particularly to the character of
the person called familice emptor. There is no'
doubt that at first he was the Heir hinaself. The
Testator conveyed to him outright his whole /

" familia," that is, all the ^hts he enjoyed n^ I ^
over and through the family; his property, his
slaves, and all his ancestral privileges, together

on the other hand with all his duties and obliga-
tions.

With these data before us, we are able to note
several remarkable points in which the Mancipatory

200 MANCIPATORY WILLS. chap. vi.

Testament, as it may be called, differed in its primi-
tive form from a modem 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 Familiae Emptor,
being himself the Heir, knew exactly what his
rights were, and was aware that he was irreversibly
entitled to the inheritance ; a knowledge which the
violences inseparable from the best-ordered ancient
society rendered extremely dangerous. But perhaps
the most surprising 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 were a certain class of transactions which never
admitted of being directly modified by a condition,
or of being limited to or from a point of time. In
technical language they did not admit conditio or dies.
Mancipation was one of them, and therefore, strange
as it may seem, we are forced to conclude that the
primitive Roman Will took effect at once, even
though the Testator survived his act of Testation.
It is indeed likely that Roman citizens originally

CHAP. VI. ANCIENT WILLS NOT WRITTEN. 207

made their Wills only in the article of death, and that
a provision for the continuance of the Family effected
by a man in the flower of life would take the form
rather of an Adoption than of a Will. Still we must
believe that, if the Testator did recover, he could only
continue to govern his household by the sufferance of
his Heir.

Two or three remarks should be made before I ex-
plain how these inconveniences were remedied, and
how Testaments came to be invested with the charac-
teristics now universally associated with them. The
Testament was not necessarily written: at first, it
seems to have been invariably oral, and, even in later
times, the instrument declaratory of the bequests was
only incidentally connected with the Will and formed
no essential part of it. It bore in fact exactly the
same relation to the Testament, which the deed lead-
ing the uses bore to the Fines and Recoveries of old
English law, or which the charter of feofiinent bore
to the feoffment itself. Previously, indeed, to the
Twelve Tables, no writing would have been of the
slightest use, for the Testator had no power of giving
legacies, and the only persons who could be advan-
taged by a will were the Heir or Co-heirs. But the
extreme generality of the clause in the Twelve Tables
soon produced the doctrine that the Heir must take
the inheritance burdened by any directions which the
Testator might give him, or, in other words, take it

208 THE PURCHASER OF THE FAMILY. chap. vt.

subject to legacies. Written testamentary instru-
ments assumed thereupon a new value, as a security
against Ihe fraudulent refusal of the heir to satisfy
the legatees; but to the last it was at the Testator's
pleasure to rely exclusively on the testimony of the
witnesses, and to declare by word of mouth the
legacies which the familice emptor was commissioned
to pay.

The terms of the expression Emptor familice demand
notice. " Emptor" indicates that the Will was literally
a sale, and the word " familise," when compared with
the phraseology in the Testamentary clause in the
Twelve Tables, leads us to some instructive conclu-
sions. " Familia," in classical Latinity, means always
a man's slaves. Here, however, and generally in the
language of ancient Roman law, it includes all per-
sons under his Potestas, and the Testator's material
property or substance is understood to pass as an
adjunct or appendage of his household. Turning to
the law of the Twelve Tables, it will be seen that it
speaks of tutela rei auce^ *' the guardianship of his sub-
stance," a form of expression which is the exact reverse
of the phrase just examined. There does not therefore
appear to be any mode of escaping from the conclu-
sion, that, even at an era so comparatively recent as
that of the Decemviral compromise, terms denoting
"household" and *' property" were blended in the
current phraseology. If a man's household had been

CHAP. VI. THE PR^TORIAN WILL. 209

spoken of as his property we might have explained
the expression as pointing to the extent of the Patria
Potestas, but, as the interchange is reciprocal, we
must allow that the form of speech carries us back to
that primeval period in which property is owned by
the family, and the family is governed by the citizen,
so that the members of the community do not own
their property and their family, but rather own their
property through their family.

At an epoch not easy to settle with precision, the
Roman Praetors fell into the habit of acting upon
Testaments solemnised in closer conformity with the
spirit than the letter of the law. Casual dispensations
became insensibly the established practice, till at
length a wholly new form of Will was matured and
regularly engrafted on the Edictal Jurisprudence.
The new or PrcBtorian Testament derived the whole
of its impregnability from the Jtis Honorarium or
Equity of Rome. The Praetor of some particular
year must have inserted a clause in his Inaugural
Proclamation declaratory of his intention to sustain
all Testaments which should have been executed with
such and such solemnities; and, the reform having
been found advantageous, the article relating to it
must have been again introduced by the Praetor's
successor, and repeated by the next in office, till at
length it formed a recognised portion of that body of
jurisprudence which from these successive incorpora-

p

210 THE PRJETORIAN WILL. chaf. tx,

tions was styled the Perpetual or Continuous Edict.
On examining the conditions of a valid Praetorian
Will they will be plainly seen to have been deter-
mined by the requirements of the Mancipatory Tes-
tament, the innovating Praetor having obviously pre-
scribed 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 pre-
sent besides the Testator. Seven witnesses were
accordingly essential to the Praetorian Will: two of
them corresponding to the libripens and famUice
emptor^ who were now stripped of their symbolical
character, and were merely present for the purpose of
supplying their testimony. No emblematic ceremony
was gone through; the WiU was merely recited; but
then it is probable (though not absolutely certain)
that a written instrument was necessary to perpetuate
the evidence of the Testator's dispositions. At all
events, whenever a writing was read or exhibited as a
person's last Will, we know certainly that the Praeto-
rian Court would not sustain it by special intervention,
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

CHAP. VI. THE BONORUM POSSESSIO. 2U

presence or assent of the signatary, but were literally
fastenings which had to be broken before the writing
could be inspected.

The Edictal Law would therefore enforce the dispo-
sitions of a Testator, when, instead of being symbo-
lised through the forms of mancipation, they were
simply evidenced by the seals of seven witnesses.
But it may be laid down as a general proposition, that
the principal qualities of Roman property were in-
communicable except through processes which were
supposed to be coeval with the origin of the Civil Law.
The Praetor therefore could not confer an Inheritance
on anybody. He could not place the Heir or Co-heirs
in that very relation in which the Testator had him-
self stood to his own rights and obligations. All he
could do was to confer on the person designated as
Heir the practical enjoyment of the property be-
queathed, and to give the force of legal acquit-
tances to his payments of the Testator's debts.
When he exerted his powers to these ends, the
Praetor was technically said to communicate the
Bonorum Possessio. The Heir specially inducted
under these circumstances, or Bonorum Possessor^
had every proprietary privilege of the Heir by the
Civil Law. He took the profits and he could alienate,
but then, for all his remedies for redress against
wrong, he must go, as we should phrase it, not to the
Common Law, but to the Equity side of the Praetorian

p 2

212 IMPROVEMENTS IN THE OLD WILL. chap, ti.

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 recol-
lect 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 in-
heritance.

We know too little of the older law of Civil Pro-
cess to be able to strike the balance of advantage
and disadvantage between the different classes of
remedies supplied by the Praetorian Tribunal. It is
certain, however, that, in spite of its many defects, the
Mancipatory Testament by which the universitas juris
devolved at once and unimpaired was never entirely
superseded by the new 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 Gains, which is that of the Antonine Caesars,
the great blemishes of the Mancipatory Will had been
removed. Originally, as we have seen, the essential
character of the formalities had required that the
Heir himself should be the Purchaser of the Family,
and the consequence was that he not only instantly
acquired a vested interest in the Testator's Property,

CHAP. VI. IMTROVEMENTS IN THE OLD WILL^ 2ia

but was formally made aware of his rights. But the
age of Gaius permitted some unconcerned person to
oflB.ciate as Purchaser of the Family. The Heir,
therefore, was not necessarily informed of the succes-
sion to which he was destined; and Wills thence-
forward acquired the property of secrecy. The sub-
stitution of a stranger for the actual Heir in the
functions of "Familiae Emptor" had other ulterior
consequences. As soon as it was legalised, a Roman
Testament came to consist of two parts or stages, — a
Conveyance, which was a pure form, and a Nuncu-
patio, or Publication. In this latter passage of the
proceeding, the Testator either orally declared to the
assistants the wishes which were to be executed after
his death, or produced a written document in which
his wishes were embodied. It was not probably till
attention had been quite drawn off from the imaginary
Conveyance, and concentrated on the Nuncupation
as the essential part of the transaction, that Wills
were allowed to become revocable.

1 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 Prgetorian
law. Meantime the ingenuity of the Jurisconsults
effects, in the Common-Law WiU or Mancipatory

p 3

214 THE ROMAN WILL. chap. vi.

Testament, the very improvements which the Praetor
may have concurrently carried out in Equity. These
last ameliorations depend, however, on mere legal dex-
terity, and we see accordingly that the Testamentary
Law of the day of Gains or Ulpian is only transi-
tional. What changes next ensued we know not;
but at length just before the reconstruction of the
jurisprudence by Justinian, we find the subjects of
the Eastern Roman Empire emplojdng a form of Will
of which the pedigree is traceable to the Praetorian
Testament on one side, and to the Testament " with
the copper and the scales" on the other. Like the
Testament of the Praetor, it required no Mancipa-
tion, and was invalid unless sealed by seven witnesses.
Like the Mancipatory Will, it passed the Inheritance
and not merely a Bonorum Possessio. Several, how-
ever, of its most important features were annexed by
positive enactments, and it is out of regard to this
threefold derivation from the Praetorian Edict, from
the Civil Law, and from the Imperial Constitutions,
that Justinian speaks of the Law of Wills in his own
day as Ju^ 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 aU its apparatus of conveyance, copper, and
scales, continued to be the form in use far down in
the Middle Ages.

cuAP. vu. DISINUESISOX OF CUILDREN. 215

CHAP. VIL

ANCIENT AND MODERN IDEAS RESPECTING WILLS AND
SUCCESSIONS.

Although there is much in the modem European
Law of Wills which is intimately connected with the
oldest rules of Testamentary disposition practised
among men, there are nevertheless some important
differences between ancient and modem ideas on the
subject of Wills and Successions. Some of the points
of difference I shall endeai^ur to illustrate in this
chapter.

At a period, removed several centuries from the era
of the Twelve Tables, we find a variety of rules en-
grafted on the Roman Civil Law with the view of
limiting the disinherison of children; we have the ju-
risdiction of the Praetor very actively exerted in the
same interest; and we are also presented with a new
remedy, very anomalous in character and of uncer-
tain origin, called the Querela Inofficiosi Testament!,
" 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

p 4

216 DISINHERISON OF CHILDREN. chap. vu.

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 Praetor in arresting the progress
of paternal depravity. This story, which is not
without some foundation for the principal fact it
relates, is often so told as to disclose very serious
misconceptions of the principles of legal history,
The Law of the Twelve^Tables is to be explained by
the character of the age in which it was enacted.
It does not license a tendency which a later era
thought itself bound to counteract, but it proceeds
on the assumption that no such tendency exists, or,
perhaps we should say, in ignorance of the possi-
bility of its existence. There is no likelihood that
Roman citizens began immediately to avail them-
selves freely of the power to disinherit. It is
against all reason and sound appreciation of history
to suppose that the yoke of family bondage, still
patiently submitted to, as we know, where its pres-
sure galled most cruelly, would be cast off in the
very particular in which its incidence in our own

CHAP. vn. DISINHERISON OF CHILDREN 217

day is not otherwise than welcome. The Law of
the Twelve Tables permitted the execution of Testa-
ments in the only case in which it was thought
possible that they could be executed, viz. on failure
of children and proximate kindred. It did not
forbid the disinherison of direct descendants, inas-
much as it did not legislate against a contingency
which no Roman lawgiver of that era could have con-
templated. No doubt, as the offices of family aflPec-
tion progressively lost the aspect of primary personal
duties, the disinherison of children was occasionally
attempted. But the interference of the Praetor, so
far from being called for by the universality of the
abuse, was doubtless first prompted by the fact that
such instances of unnatural caprice were few and
exceptional, and at conflict with the current mo-
rality.

The indications furnished by this part of Roman
Testamentary Law are of a very diffisrent 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

218 FEELING RESPECTING INTESTACY. chap. vu.

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. H this
be the true reading of the general sentiment on the
point, it explains to some extent the singular horror
of Intestacy which always characterised the Roman.
No evil seems to have been considered a heavier
visitation than the forfeiture of Testamentary pri-
vileges; no curse appears to have been bitterer than
that which imprecated on an enemy that he might
die without a Will. The feeling has no counterpart,
or none tha;^ 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 desti-
nation of their substance to having that oflBice per-
formed for them by the law; but the Roman passion
for Testacy is distinguished from the mere desire
to indulge caprice by its intensity; and it has of
course nothing whatever in common with that
pride of family, exclusively the creation of feudal-
ism, which accumulates one description of property
in the hands of a single representative. It is pro-
bable, h priori^ that it was something in the rules of
Intestate Succession which caused this vehement pre-
ference for the distribution of property under a Testa-
ment over its distribution by law. The difficulty,

CHAP. VII. ROMAN INTESTATE SUCCESSION. 219

however, is, that on glancing at the Roman law of In-
testate Succession, in the form which it wore for
many centuries before Justinian shaped it into that
scheme of inheritance which has been almost univer-
sally adopted by modem 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 modem society has been generally contented,
that no reason suggests itself why it should have
been regarded with extraordinary distaste, especially
under a jurisprudence which pared down to a
narrow compass the testamentary privileges of per-
sons who had children to provide for. We should
rather have expected that, as in France at this mo-
ment, the heads of families would generally save
themselves the trouble of executing a WiU, 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 oC Intestate Succession, we shall
discover tlie 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 PrsBtor.
The Civil Law, as I have already stated for another
purpose, calls to the inheritance only three orders of
successors in their turn ; the Unemancipated children,
the nearest class of Agnatic kindred, and the Gentiles.

220 ANCIENT INTESTATE SUCCESSION. chap. yii.

Between these three orders, the Praator 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 an-
ciently have been a time at which the rules of the
Civil Law determined the scheme of Intestate Suc-
cession exclusively, and at which the arrangements
of the Edict were non-existent, or not consistently
carried out. We cannot doubt that, in its infancy,
the Praetorian jurisprudence had to contend with
formidable obstructions, and it is more than probable
that, long after popular sentiment and legal opinion
had acquiesced in it, the modifications which it
periodically introduced were governed by no certain
principles, and fluctuated with the varying bias of
successive magistrates. The rules of Intestate Suc-
cession, which the Romans must at this period have
practised, account, I think — and more than account
— for that vehement distaste for an Intestacy to
which Roman society during so many ages remained
constant. The order of succession was this : on the
death of a citizen, having no will or no valid will, his
XJnemancipated children became his Heirs. His
emancipated sons had no share in the inheritance.
If he left no direct descendants living at his death,

CHAP. VII. ANCIENT INTESTATE SUCCESSION. 221

the nearest grade of the Agnatic kindred succeeded,
but no part of the inheritance was given to any rela-
tive united (however closely) with the dead man
through female descents. All the other branches of
the family were excluded, and the inheritance es-
cheated 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 eman-
cipated children absolutely without provision, while,
on the assumption that he died childless, there was
imminent risk that his possessions would escape from
the family altogether, and devolve on a number of
persons with whom he was merely connected by the
sacerdotal fiction that assumed all members of the
same gens to be descended from a common ancestor.
The prospect of such an issue is in itself a nearly
sufficient explanation of the popular sentiment; but,
in point of fact, we shall only half understand it, if
we forget that the state of things I have been de-
scribing is likely to have existed at the very moment
when Roman society was in the first stage of its
transition from its primitive organisation in detached
families. The empire of the father had indeed re-
ceived one of the earliest blows directed at it through
the recognition of Emancipation as a legitimate
usage, but the law, still considering the Patria
Potestas to be the root of family connection, perse-

222 FEELING RESPECTING INTESTACT. chap. th.

vered in looking on the emancipated children as
strangers to the rights of Kinship and aliens from
the blood. We cannot, however, for a moment sup-
pose that the limitations of the family imposed by
legal pedantry had their counterpart in the natural
affection of parents. Family attachments must still
have retained that nearly inconceivable sanctity and
intensity which belonged to them under the Pa-
triarchal system; and, so little are they likely to
have been extinguished by the act of emancipation,
that the probabilities are altogether the other way.
It may be unhesitatingly taken for granted that
enfranchisement from the father's power was a de-
monstration, rather than a severance, of affection — a
mark of grace and favour accorded to the best-beloved
and most esteemed of the children. If sons thus
honoured above the rest were absolutely deprived of
their heritage by an Intestacy, the reluctance to in-
cur it requires no farther explanation. We might
have assumed h priori that the passion for Testacy
was generated by some moral injustice entailed by
the rules of Intestate succession; and here we find
them at variance with the very instinct by which
early society was cemented together. It is possible
to put all that has been urged in a very succinct
form. Every dominant sentiment of the primitive
Romans was entwined with the relations of the family.
But what was the Family? The Law defined it one

CHAP. vn. FEELING RESPECTING. INTESTACY. 223

way — natural affection another. In the conflict be-
tween the two, the feeling we would analyse grew up,
taking the form of an enthusiasm for the institution
by which the dictates of affection were permitted to
determine the fortunes of its objects.

I regard, therefore, the Roman horror of Intes-
tacy 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 parti-
cular 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 im-
posed by those statutes. But the feeling itself, in
its remarkable intensity, seems to point back to some
deeper antagonism between law and opinion; nor
is it at all wonderful that the improvements of
jurisprudence by the Praetor should not have extin-
guished it. Everybody conversant with the philo-
sophy of opinion is aware that a sentiment by no
means dies out, of necessity, with the passing away
of the circumstances which produced it. It may
long survive them; nay, it may afterwards attain
to a pitch and climax of intensity which it never
attained during their actual continuance.

The view of a WiU which regards it as conferring

224 MODERN WILLS. chap. yu.

the power of diverting property from the Family,
or of distributing it in such uneven proportions as
the fancy or good sense of the Testator may dictate,
is not older than that later portion of the Middle
Ages in which Feudalism had completely con-
solidated itself. When modem jurisprudence first
shows itself in the rough, 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 WiU — 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 propor-
tions, of the devolving inheritance. The shares of
the children, as their amount shows, were deter-
mined by the authority of Roman law. The pro-
vision for the widow was attributable to the exer-
tions of the Church, which never relaxed its solicitude
for the interest of wives surviving their husbands —
winning, perhaps, one of the most arduous of its tri-
umphs when, after exacting for two or three centuries
an express promise from the husband at marriage to
endow his wife, it at length succeeded in engrafting
the principle of Dower on the Customary Law of
all Western Europe. Curiously enough, the dower
of lands proved a more stable institution than the

CHAP. VII. widow's SHABE op moveables. 225

analogous and more ancient reservation of certain
shares of the personal property to the widow and
children. A few local customs in France maintained
the right down to the Eevolution, 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 privi-
leges of the children were obliterated from juris-
prudence. 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. Tes-
taments 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 modem con-
ception of a Will. But, though the liberty of
bequest, enjoyed through Testaments, was thus an
accidental fruit of Feudalism, there is no broader
distinction than that which exists between a system
of free Testamentary disposition and a system, like
that of the Feudal land-law, under which property
descends compulsorily in prescribed lines of devolu-
tion. This truth appears to have been lost sight of
by the authors of the French Codes. In the social

Q

326 FRENCH LAW OF WILIi(« chap. vn.

fabric whiclL they detennined to destroy, they saw
Primogeniture resting chiefly on Family settle-
ments, but they also perceived that Testaments
were frequently employed to give the eldest son
precisely the same preference which was reserved
to him 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 funda-
mental principle of an equal distribution of pro-
perty among children at the parent's death. The
result is that they have established a system of
small perpetual entails, which is infinitely nearer
akin to the system of feudal Europe than would be
a perfect liberty of bequest. The land-law of Eng-
land, " the Herculaneum of Feudalism," is certainly
much more closely allied to the land-law of the
Middle Ages than that of any Continental country, and
Wills with us are frequently used to aid or imitate
that preference of the eldest son and his line which
is a nearly universal feature in marriage settlements
of real property. But nevertheless feeling and
opinion in this country have been profoundly affected
by the practice of free Testamentary disposition ; and
it appears to me that the state of sentiment in a
great part of French society, on the subject of the

CHAP. vn. PBIMOGENITUBE. 227

conservation of property in families, is much liker
that which prevailed through Europe two or three
centuries ago than are the current opinions of Eng-
lishmen.

The mention of Primogeniture introduces one of
the most difficult problems of historical jurispru-
dence. Though I have not paused to explain my
expressions, it may have been noticed that I have
frequently spoken of a number of " co-heirs " as
placed by the Boman 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 Succes-
sor, might not have been taken by a group of co-
heirs. This group succeeded as a single unit, and
the assets were afterwards divided among them in a
separate legal proceeding. When the Succession was
ah intestatOj 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 domaia equally among the mem-
bers of each successive generation, and to reserve no

Q 2

328 PBIMOGENITUBE. chap. vii.

privilege to the eldest son or stock. Some pecu-
liarly significant hints as to the close relation of this
phenomenon to primitive thought are furnished by
systems yet more archaic than the Roman. Among
the Hindoos, the instant a son is bom, he acquires a
vested right in his father's property, which cannot
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

. ,^.v^., consent of the parent; and, should the parent ac-

^<\^ ^-«^ quiesce, one son can always have a partition even

..V '^••'^' against the will of the others. On such partition

v.o>^'«^ taking place, the father has no advantage over his
children, except that he has two of the shares in-
stead 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 condi-
tions which I shall hereafter attempt to elucidate.
All this points very clearly to the absolutely equal
division of assets among the male children at death as

CHAP. VII. PBIMOGENITUEB. 229

the practice most usual with society at the period
when family-dependency is in the first stages of dis-
integration. Here then emerges the historical diffi-
culty of Primogeniture. The more clearly we perceive
that, when the Feudal institutions were in process of
formation, there was no source in the world whence
they could derive their elements but the Roman law
of the provincials on the one hand and the archaic
customs of the barbarians on the other, the more are
we perplexed at first sight by our knowledge that
neither Roman nor barbarian was accustomed to give
any preference to the eldest son or his line in the
succession to property.

Primogeniture did not belong to the Customs which
the barbarians practised on their first establishment
within the Roman Empire. It is known to have had
its origin in the benefices or beneficiary gifts of the
invading chieftains. These benefices, which were
occasionally conferred by the earlier immigrant kings,
but were distributed on a great scale by Charlemagne,
were grants of Roman provincial land to be holden
by the beneficiary on condition of 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 Prankish chiefs and
of Charlemagne were accomplished with forces com-
posed of soldiers either personally dependent on the
royal house or compelled to serve it by the tenure of

q3

230 BENEPICBS AND FIEFS. chap. vii.

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 eflfort seems to have been spared by the bene-
ficiaries to enlarge the tenure, and to continue their
lands in their family after death. Through the
feebleness of Charlemagne's successors these attempts
were universally successful, and the Benefice gradu-
ally transformed itself into the hereditary Fief. But,
though the fiefs were hereditary, they did not neces-
sarily descend to the eldest son. The rules of suc-
cession which they followed were entirely determined
by the terms agreed upon between the grantor
and the beneficiary, or imposed by one of them
on the weakness of the other. The original tenures
were therefore extremely various ; not indeed so
capriciously various as is sometimes asserted, for all
which have hitherto been described present some
combination of the modes of succession familiar to
Romans and to barbarians, but still exceedingly mis-
cellaneous. In some of them, the eldest son and his
stock undoubtedly succeeded to the fief before the
others, but such successions, so far from being uni-
versal, do not even appear to have been general.
Precisely the same phenomena recur during that
more recent transmutation of European society which
entirely substituted the feudal form of property for

CHAP. VII. ALLODS AND FIEFS. 231

the domainial (or Roman) and the allodial (or Ger-
man). The allods were wholly absorbed by the fiefs.
The greater allodial proprietors transformed them-
selves into feudal lords by (conditional alienations of
portions of their land to dependants; the smaller
sought an escape from the oppressions of that terrible
time by surrendering their property to some powerful
chieftain, and receiving it back at his hands on con-
dition of service in his wars. Meantime, that vast
mass of the population of Western Europe whose
condition was servile or semi-servile — the Roman
and German personal slaves, the Roman coloni and
the Germdi^ 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 vari-
ous 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 diflFusion being Family Settle-

Q 4

232 DIFFUSION OF PBIMOGEKITUBE. chap. vir.

ments, 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. XJltimately 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
stiU 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 alto-
gether free nor altogether servile.

The diffusion of Primogeniture is usually accounted
for by assigning what are called Feudal reasons for
it. It is asserted that the feudal superior had a bet-
ter security for the military service he required when
the fief descended to a single person, instead of being
distributed among a number on the decease of the

CHAP. VII. DIFFUSION OF PRIMOGENITURE. 2S3

last holder. Without denying that this consideration
may partially explain the favour gradually acquired
by Primogeniture, I must point out that Primogeni-
ture became a custom of Europe much more through
its popularity with the tenants than through any ad-
vantage it conferred on the lords. For its origin,
moreover, the reason given does not account at all.
Nothing in law springs entirely from a sense of con-
venience. There are always certain ideas existing
antecedently on which the sense of convenience works,
and of which it can do no more than form some new
combination ; and to find these ideas in the present
case is exactly the problem.

A valuable hint is furnished to us from a quarter
fruitful of such indications. Although in India the
possessions of a parent are divisible at his death, and
may 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 ov political power devolves at the decease of the
last Incumbent, the succession is nearly universally
according to the rules of Primogeniture. Sovereign-
ties descend therefore to the eldest son, and where
the afiairs of the Village Community, the corporate
unit of Hindoo society, are confided to a single
manager, it is generally the eldest son who takes up
the administration at his parent's death. All offices,

234 SUCCESSION TO POLITICAL TOWEE. chap. yu.

indeed, in India, tend to become hereditary, and, when
their nature permits it, to vest in the eldest member
of the oldest stock. Comparing these Indian succes-
sions with some of the ruder social organisations
which have survived in Europe almost to our own
day, the conclusion suggests itself that, when Patri-
archal 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 pre-
sumptuous conjecture, that, when the corporation thus
formed by the kindred was in itself an independent
society, it was governed by the eldest male of the
oldest line. It is true that we have no actual know-
ledge of any such society. Even in the most ele-
mentary communities, family-organisations, as we
know them, are at most imperia in imperio. But the
position of some of them, of the Celtic clans in parti-
cular, was sufficiently near independence within his-
torical times to force on us the conviction that they

CHAP. Yii. ANCIENT FORMS OP PRIMOGENITURE. 235

were once separate imperia^ and that Primogeniture
regulated the succession to the chieftainship. It
is, however, necessary to be on our guard against
modem 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 fa-
mily possessions, if the Hindoo father is only joint-
sharer with his sons, still more emphatically must the
true patriarchal chieftain be merely the administrator
of a common fund.

•The examples of succession by Primogeniture which
were found among the Benefices may, therefore,
have been imitated from a system of family-govern-
ment 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 spon-
taneously recurred to it, when they were called upon
to settle the rules of inheritance for a new form of
property. But there is still the question. Why did
Primogeniture gradually supersede every other prin-
ciple of succession ? The answer, I think, is, that
European society decidedly retrograded during the
dissolution of the Carlovingian empire. It sank a
point or two back even from the miserably low degree

236 FALL OF CARLOVINGUN EMPIRE. chap. rit.

A* -

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 univer-
sally 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 house-
hold, recruited, not as in the primitive times by Adop-
tion, 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, ^t was power-
ful 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, inte-
rests, or indulgences. It would be a singular ana-
chronism to estimate the privileges succeeded to by

CHAP. Til. EABUEB AND LATEB PRIMOGENITUIU)^. 237

the heir of a fief, by the situation in which th^<^ldes^
son is placed under an .English strict settlement.

I have said that I regard the early feudal con-
federacies as descended from an archaic form of the
Family, and as wearing a strong resemblance to it.
But then in the ancient world, and in the societies
which have not passed through the crucible of feu-
dalism, the Primogeniture which seems to have pre-
vailed never transformed itseKinto the Primogeniture
of the later feudal Europe. When the group of kins-
men ceased to be governed through a series of genera-
tions by a hereditary chief, the domain which had
been managed for all appears to have been equally
divided among all. Why did this not occur in the
feudal world? If during the confusions of the first
feudal period the eldest son held the land for the be-
hoof of the whole family, why was it that when feudal
Europe had consolidated itself, and regular commu-
nities were again established, the whole family did
not resume that capacity for equal inheritance which
had belonged to 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 bar-
barian and archaic, but, as soon as Courts and lawyers

238 MODEEN VIEW OP CHIEFTAINSHIP. chap. vn.

were called in to interpret and define it, the principles
of interpretation which they applied to it were those
of the latest Roman jurisprudence, and were therefore
excessively refined and matured. In a patriarchally
governed society, the eldest son may succeed to the
government of the Agnatic group, and to the absolute
disposal of its property. But he is not therefore a
true proprietor. He has correlative duties not in-
volved in the conception of proprietorship, but quite
undefined and quite incapable of definition. The
later 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

CHAP. VII. POEMS OP PRIMOGENITUEE. 239

chieftain over the domains which gave sustenance to
the dan, 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 house-
hold 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 repre-
sentation. The form of Primogeniture which has
spread over Western Europe has also been per-
petuated 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 j>ver brothers but over uncles;
and, if he too fails, the same rule is followed in the
next generation. But when the succession is not
merely to civil but to political power, a difficulty may
present itself which wiU appear of greater magnitude
according as the cohesion of society is less perfect.
The chieftain who last exercised authority may have
outlived his eldest son, and the grandson who is

\

240 FORMS OF PRIMOGENITUEE. CHAP.vir.

primarily entitled to succeed may be too young and
immature to undertake the actual guidance of the
conununity, 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 ob-
viating the inconvenience attending the devolution of
sovereignty on an infant heir, and it is one which
would doubtless occur spontaneously to rudely or-
ganised communities. This is to set aside the infant
heir altogether, and confer the chieftainship on the
eldest surviving male of the first generation. The
Celtic clan-associations, among the many phenomena
which they have preserved of an age in which civil

CHAP. VII. CELTIC PRIMOGENITURE. 241

and political society were not yet even rudimentarily
separated, have brought down this rule of succession
to historical times. With them, it seems to have
existed in the form of a positive canon, that, failing
the eldest son, his next brother succeeds in priority
to all grandsons, whatever be their age at the moment
when the sovereignty devolves. Some writers have
explained the principle by assuming that the Celtic
customs took the last chieftain as a sort of root or
stock, and then gave the succession to the descend-
ant who should be least remote from him ; the uncle
thus being preferred to the grandson as being nearer
to the common root. No objection can be taken to
this statement if it be merely intended as a descrip-
tion of the system of succession ; but it would be a
serious error to conceive the men who first adopted
the rule as applying a course of reasoning which
evidently dates from the time when feudal schemes of
succession 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

242 MAHOMETAN RULE. chap. vit.

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 pre-
served an ancient Arabian custom, inheritances of
property are divided equally among sons, the daugh-
ters taking a half share ; but if any of the children
die before the division of the inheritance, leaving
issue behind, these grandchildren are entirely ex-
cluded by their uncles and aunts. Consistently with
this principle, the succession, when political autho-
rity devolves, is according to the form of Primo-
geniture which appears to have obtained among the
Celtic societies. In the two great Mahometan
families of the West, the rule is believed to be, that
the uncle succeeds to the throne in preference to the
nephew, though the latter be the son of an elder
brother; but though this rule has been followed
quite recently 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 applica-
tion from occurring, and it is possible that their
wholesale massacres of their younger brothers may
have been perpetrated quite as much in the interest
of their children as for the sake of making away
with dangerous competitors for the throne. It is

CHAP. VII. POLYGAMY. 243

evident, however, that in polygamous societies the
form of Primogeniture wiU 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. Accord-
ingly, 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 some-
times been spoken of as a will, but it seems rather
to have been a mode of naming an eldest son.

R 2

244 NATURAL MODES OF ACQUISITION. chap. vm.

CHAP. 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 pos-
sessing, at first sight, either much speculative or
much practical interest. The wild animal which is
snared or kiUed by the hunter, the soil which is
added to our field by the imperceptible deposits of a
river, the tree which strikes its roots into our ground,
are each said by the Roman lawyers to be acquired
by us naturally. The older jurisconsults had doubt-
less observed that such acquisitions were universally
sanctioned by the usages of the little societies around
them, and thus the lawyers of a later age, finding
them classed in the ancient Jus Gentium, and per-
ceiving them to be of the simplest description, allotted
them a place among the ordinances of Nature. The
dignity with which they were invested has gone on
increasing in modem times till it is quite out of pro-

CHAP. vni. OCCUPANCY. 245

portion to their original importance. Theory has
made them its favourite food, and has enabled them
to exercise the most serious influence on practice.

It will be necessary for us to attend to one only
among these " natural modes of acquisition," Occu-
patio or Occupancy. Occupancy is the advisedly
taking possession of that which at the moment is the
property of no man, with the view (adds the technical
definition) of acquiring property in it for yourself.
The objects which the Roman lawyers called res nvl-
lius — things which have not or have never had an
owner — can only be ascertained by enumerating
them. Among things which never had an owner are
wild animals, fishes, wild fowl, jewels disinterred for
the first time, and lands newly discovered or never
before cultivated. Among things which have not an
owner are moveables which have been abandoned,
lands which have been deserted, and (an anomalous
but most formidable item) the property of an enemy.
In all these objects the full rights of dominion were
acquired by the Occupant^ who first took possession
of them with the intention of keeping them as his
own — an intention which, in certain cases, had to be
manifested by specific acts. It is not difficult, I
think, to understand the universality which caused
the practice of Occupancy to be placed by one gene-
ration of Roman lawyers in the Law common to all
Nations, and the simplicity which occasioned its being

R 3

246 LAW OF CAPTUBE IN WAR. chap. tiii.

attributed by another to the Law of Nature. But
for its fortunes in modem legal history we are less
prepared by h priori considerations. The Roman
principle of Occupancy, and the rules into which the
jurisconsults expanded it, are the source of all modem
International Law on the subject of Capture in War
and of the acquisition of sovereign rights in newly dis-
covered 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 Interna-
tional Law which is concerned with Capture in War.
The Law of Warlike Capture derives its rules from
the assumption that communities are remitted to a
state of nature by the outbreak of 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 expound-
ing, the hypothesis that an enemy's property is res
nullius has seemed to them perverse and shocking,
and they are careful to stigmatise it as a mere fiction
of jurisprudence. But, as soon as the Law of Nature

CHAP. vni. ANCIENT LAW OP CAPTURE. 247

is traced to its source in the Jus Gentium, we see at
once how the goods of an enemy came to be looked
upon as nobody's property, and therefore as capable
of being acquired by the first occupant. The idea
would occur spontaneously to persons practising the
ancient forms of Warfare, when victory dissolved the
organisation of the conquering army and dismissed
the soldiers to indiscriminate plunder. It is probable,
however, that originally it was only moveable pro-
perty which was thus permitted to be acquired by
the Captor. We know on independent authority that
a very different rule prevailed in ancient Italy as to
the acquisition of ownership in the soil of a con-
quered country, and we may therefore suspect that
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 ntdlius 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 juris-
prudence derives from these positions have sometimes
been stigmatised as needlessly indulgent to the fero-
city and cupidity of combatants, but the charge has

B 4

248 OCCUPANCY AND WARLIKE CAPTURE. chap. viii.

been made, I think, by persons who are unacquainted
with the history of wars, and who are consequently
ignorant how great an exploit it is to command
obedience for a rule of any kind. The Roman prin-
ciple of Occupancy, when it was admitted into the
modem 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 Occu-
pancy is to be taxed with having had pernicious in-
fluence on any part of the modem Law of Nations,
there is another chapter in it which may be said, with
some reason, to have been injuriously affected. In
applying to the discovery of new countries the same
principles which the Romans had applied to the find-
ing of a jewel, the Publicists forced into their service
a doctrine altogether unequal to the task expected
from it. Elevated into extreme importance by the
discoveries of the great navigators of the 15th and
16th centuries, it raised more disputes than it solved.
The greatest uncertainty was very shortly found to
exist on the very two points on which certainty was
most required, the extent of the territory which was
acquired for his sovereign by the discoverer, and the

cnAP. VIII. RULE OP DISCOVERY. 249

nature of the acts which were necessary to complete
the adprehensio or assumption of sovereign posses-
sion. Moreover, the principle itself, conferring as it
did such enormous advantages as the consequence of
a piece of good luck, was instinctively mutinied
against by some of the most adventurous nations
in Europe, the Dutch, the English, and the Portu-
guese. Our own countrymen, without expressly
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 encroach-
ments of the New England Colonists on the territory
of the French King continued for almost a century
longer. Bentham was so struck with the confusion
attending the application of the legal principle, that
he went out of his way to eulogise the famous Bull
of Pope Alexander the Sixth, dividing the undis-
covered countries of the world between the Spaniards
and Portuguese by a line drawn one hundred leagues
West of the Azores ; and, grotesque as his praises may
appear at first sight, it may be doubted whether the
arrangement of Pope Alexander is absurder in prin-
ciple than the rule of Public law, which gave half a

250 ORIGIN OP PROPERTY. chap. vin.

continent to the monarch whose servants had fulfilled
the conditions required by Koman jurisprudencQ 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 iden-
tical 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 modem con-
ception of Natural Law. The Roman lawyers had
laid down that Occupancy was one of the Natural
modes of acquiring property, and they undoubtedly
believed that, were mankind living under the institu-
tions of Nature, Occupancy would be one of their
practices. How far they persuaded themselves that
such a condition of the race had ever existed, is a
point, as I have already stated, which their language
leaves in much uncertainty; but they certainly do
seem to have made the conjecture, which has at all
times possessed much plausibility, that the institution

CHAP. VIII. ORIGIN OF PROPERTY. 251

of property was not so old as the existence of man-
kind. Modem jurisprudence, accepting all their
dogmas without reservation, went far beyond them
in the eager curiosity with which it dwelt on the
supposed state of Nature. Since then it had re-
ceived the position that the earth and its fruits were
once res mUlitts^ and since its peculiar view of Na-
ture led it to assume without hesitation that the
human race had actually practised the Occupancy
of res nullius long before the organisation of civil so-
cieties, the inference immediately suggested itself that
Occupancy was the process by which the " no man's
goods" of the primitive world became the private
property of individuals in the world of history. It
would be wearisome to enumerate the jurists who
have subscribed to this theory in one shape or an-
other, and it is the less necessary to attempt it
because Blackstone, who is always a faithful index
of the average opinions of his day, has summed them
up in his 2nd book and 1st chapter.

" The earth," he writes, " and all things therein
were the general property of mankind from the imme-
diate gift of the Creator. Not that the communion of
goods seems ever to have been applicable, even in the
earliest ages, to aught but the substance of the thing;
nor could be extended to the use of it. For, by the
law of nature and reason he who first began to use
it acquired therein a kind of transient property that

252 BLACKSTONE S THEORY. cbap. vut.

lasted so long as he was using it, and no longer;
or to speak with greater precision, the right of pos-
session continued for the same time only that the
act of possession lasted. Thus the ground was in
common, and no part was the permanent property
of any man in particular; yet whoever was in the
occupation of any determined spot of it, for rest, for
shade, or the like, acquired for the time a sort of
ownership, from which it would have been unjust
and contrary to the law of nature to have driven
him by force, but the instant that he quitted the use
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 domi-
nion, and to appropriate to individuals not the imme-
diate use only, but the very substance of the thing
to be used."

Some ambiguities of expression in this passage
lead to the suspicion that Blackstone did not
quite understand the meaning of the proposition
which he found in his authorities, that property in
the earth's surface was first acquired, under the law
of Nature, by the occupant ; but the limitation
which designedly or through misapprehension he has
imposed on the theory brings it into a form which it
has not infrequently assumed. Many writers more
famous than Blackstone for precision of language

CHAP. VIII. BLACKSTONE S THEORY. 253

have laid down that, in the beginning of things,
Occupancy first gave a right against the worid to an
exclusive but temporary enjoyment, and that after-
wards this right, while it remained exclusive, became
perpetual. Their object in so stating their theory
was to reconcile the doctrine that in the state of
Nature res nvllius became property through Occu-
pancy, with the inference which they drew from the
Scriptural history that the Patriarchs did not at
first permanently appropriate the soil which had been
grazed over by their flocks and herds.

The only criticism which could be directly applied
to the theory of Blackstone would consist in in-
quiring whether the circumstances which make up
his picture of a primitive society are more or less
probable than other incidents which could be ima-
gined with equal readiness. Pursuing this method
of examination, we might fairly ask whether the
man who had occupied (Blackstone evidently uses
this word with its ordinary English meaning) a par-
ticular spot of ground for rest or shade would be
permitted to retain it without disturbance. The
chances surely are that his right to possession would
be exactly coextensive with his power to keep it,
and that he would be constantly liable to disturbance
by the first comer who coveted the spot and thought
himself strong enough to drive away the possessor.
But the truth is that all such cavil at these positions

254 APHORISM OP SAVIGNY. chap. viii.

is perfectly idle from the very baselessness of the
positions themselves. What mankind did in the pri-
mitive state may not be a hopeless subject of inquiry,
but of their motives for doing it it is impossible to
know anything. These sketches of the plight of
human beings in the first ages of the world are
effected by first supposing mankind to be divested of
a great part of the circumstances by which they are
now surrounded, and by then assuming that, in
the condition thus imagined, they would preserve
the same sentiments and prejudices by which they
are now actuated, — although, in fact, these senti-
ments may have been created and engendered by
those very circumstances of which, by the hypo-
thesis, they are to be stripped.

There is an aphorism of Savigny which has been
sometimes thought to countenance a view of the
origin of property somewhat similar to the theories
epitomised by Blackstone. The great German jurist
has laid down that all Property is founded on Ad-
verse Possession ripened by Prescription. It is only
with respect to Koman law that Savigny makes this
statement, and before it can fully be appreciated
much labour must be expended in explaining and
defining the expressions employed. His meaning
will, however, be indicated with sufficient accuracy
if we consider him to assert that, how far soever we
carry our inquiry into the ideas of property received

CHAP. VIII. APHORISM OP SAVIGNY. 255

among the Romans, however closely we approach in
tracing them to the infancy of law, we can get no
farther than a conception of ownership involving the
three elements in the canon — Possession, Adverse-
ness of Possession, that is a holding not permissive
or subordinate, but exclusive against the world, and
Prescription, or a period of time during which the
Adverse Possession has uninterruptedly continued.
It is exceedingly probable that this maxim might
be enunciated with more generality than was allowed
to it by its author, and that no sound or safe con-
clusion can be looked for from investigations into
any system of laws which are pushed farther back
than the point at which these combined ideas con-
stitute the notion of proprietary right. Meantime,
so far from bearing out the popular theory of the
origin of property, Savigny's canon is particularly
valuable as directing our attention to its weakest
point. In the view of Blackstone and those whom
he follows, it was the mode of assuming the exclusive
enjoyment which mysteriously affected the minds of
the fathers of our race. But the mystery does not re-
side here. It is not wonderful that property began
in adverse possession. It is not surprising that the
first proprietor should have been the strong man
armed who kept his goods in peace. But why it was
that lapse of time created a sentiment of respect for
his possession — which is the exact source of the

256 TRUE OEIGIN OP OCCUPANCY. chap. viii.

universal reverence of mankind for that which has
for a long period de facto existed— are questions really
deserving the profoundest examination, but lying far
beyond the boundary of our present inquiries.

Before pointing out the quarter in which we may
hope to glean some information, scanty and un-
certain at best, concerning the early history of
proprietary right, I venture to state my opinion that
the popular impression in reference to the part
played by Occupancy in the first stages of civilisa-
tion directly reverses the truth. 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 prac-
tical inviolability, and when the vast majority of
the objects of enjoyment have been subjected to
private ownership, that mere possession is allowed
to invest the first possessor with dominion over
commodities in which no prior proprietorship has
been asserted. The sentiment in which this doctrine
originated is absolutely irreconcilable with that
infrequency and uncertainty of proprietary rights
which distinguish the beginnings of civilisation.
Its true basis seems to be, not an instinctive bias

CHAP. VIII. OBJECJTIONS TO POPULAR THEORY. 257

towards the institution of Property, but a presump-
tion, arising out of the long continuance of that
institution, that everything ought to have an owner.
When possession is taken of a " res nuUius," 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 de-
scriptions of mankind in their natural state which
we have been discussing, there is one particular in
which they are fatally at variance with the authentic
evidence possessed by us. It will be observed, that
the acts and motives which these theories suppose
are the acts and motives of Individuals. It is each
Individual who for himself subscribes the Social
Compact. It is some shifting sandbank in which
the grains are Individual men, that according to
the theory of Hobbes is hardened into the social
rock by the wholesome discipline of force. It is
an Individual who, in the picture drawn by Black-

s

258 OBJECTIONS TO POPULAR THEORY. chap. viii.

stone, " is in the occupation of a determined spot
of ground for rest, for shade, or .the like." The vice
is one which necessarily afflicts all the theories de-
scended from the Natural Law of the 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 civilisa-
tion in enfranchising the individual from the autho-
rity of archaic society. But Ancient Law, it must
again be repeated, knows next to nothing of In-
dividuals. It is concerned not with Individuals, but
with Families, not with single human beings, but
groups. Even when the law of the State has suc-
ceeded 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 Per-
sons and the Law of Things, which though extremely
convenient is entirely artificial, has evidently done
much to divert inquiry on the subject before us from
the true direction. The lessons learned in discussing
the Jus Personarum have been forgotten where the
Jus Rerum is reached, and Property, Contract, and
Delict, have been considered as if no hints concern-

CHAF. vni. INFLUENCE OF BOMAN CLASSIFICATIONS. 259

iiig their original nature were to be gained from the
facts ascertained respecting the original condition
of Persons. The ftitility 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 appljdng 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 to-
gether, and that the distinctions of the later jurists
are appropriate only to the later jurisprudence.
From what has been said in the earlier portions
of this treatise, it will be gathered that there is
a strong a priori improbability of our obtaining
any clue to the early history of property, if we
confine our notice to the proprietary rights of in-
dividuals. It is more than likely that joint-owner-
ship, and not separate ownership, is the really
archaic institution, and that the forms of property
which will aflford 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

8 2

260 I>T)IA5 TILLAGE COMMUXITIES. cdap. viii.

ownership in common by groups of men is only
the exception to a general rule. There is, however,
one community which will always be carefully ex-
amined by the inquirer who is 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 Com-
munity of India is at once an organised patriarchal
society and an assemblage of co-proprietors. The
personal relations to each other of the men who
compose it are indistinguishably confounded with
their proprietary rights, and to the attempts of
English functionaries to separate the two may be
assigned some of the most formidable miscarriages of
Anglo-Indian administration. The Village Com-
munity is known to be of immense antiquity. In
whatever direction research has been pushed into
Indian history, general or local, it has always found
the Community in existence at the farthest point of
its progress. A great number of intelligent and

CBAP. viir. CO-OWNEBSHIP. 261

observant writers, most of whom had no theory of
any sort to support concerning its nature and origin,
agree in considering it the least destructible institu-
tion of a society which never willingly surrenders
any one of its usages to innovation. Conquests and
revolutions seem to have swept over it without disturb-
ing or displacing it, and the most beneficent systems
of government in India have always been those which
have recognised it as the basis of administration.

The mature 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 al-
ways 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 dis-
cretion he is even, in certain contingencies, permitted
by the letter of the law to call for a partition of the
family estate. As a fact, however, a division rarely
takes place even at the death of the father, and the
property constantly remains undivided for several
generations, though every member of every genera-

262 VILLAGE COMMUNITIES. chap. yiii.

tion has a legal right to an undivided share in it.
The domain thus held in common is sometimes ad-
ministered by an elected manager, but more generally,
and in some 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 apportion-
ment 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 infor-
mation that men of alien extraction have always,
from time to time, been engrafted on it, and a mere
purchaser of a share may generally, under certain
conditions, be admitted to the brotherhood. In the
South of the Peninsula there are often Communities

CHAP. VIII. VILLAGE COMMUjS'ITIES. 268

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 com-
mon descent. Yet in all these brotherhoods either the
tradition is preserved, or the assumption made, of an
original common parentage. Mountstuart Elphinstone,
who writes more particularly of the Southern 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 indi-
viduals who settled the village ; and that the only
exceptions are formed by persons who have derived
their rights by purchase or othermse from members
of the original stock. The supposition is confirmed
by the fact that, to this day, there are only single
families of landholders in small villages and not many
in large ones; but each has branched out into so
many members that it is not uncommon for the whole
agricultural labour to be done by the landholders,
without the aid either of tenants or of labourers.
The rights of the landholders are theirs collectively,
and, though they almost always have a more or less
perfect partition of them, they never have an entire
separation. A landholder, for instance, can sell or
mortgage his rights ; but he must first have the con-
sent of the Village, and the purchaser steps exactly

9 4

264 TYPE OF THE COMMUNITY. chap. vui.

into his place and takes up all his obligations. If a
family becomes extinct, its share returns to the com-
mon stock.*'

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

CHAP. VIII. TYPE OF THE COMMUNITY. 265

Communities, like the Gentes, have been very gene-
rally adulterated by the admission of strangers, but
the exact mode of absorption cannot now be ascer-
tained. At present, they are recruited, as Elphin-
stone 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 Familiae, 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 common-
wealth, so strenuously insisted on as essential to the
legalisation of an Adoption or the confirmation of a
Will.

The tokens of an extreme antiquity are discover-
able in almost every single feature of the Indian
Village Communities. We have so many independent
reasons for suspecting that the infancy of law is
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 im-
portant conclusions from our observation of these

266 RUSSIAN VILLAGES. chap. yiit.

proprietary brotherhoods, even if no similarly com-
pounded societies could be detected in any other
part of the world. It happens, however, that much
earnest curiosity has been very recently attracted to
a similar set of phenomena in those parts of Europe
which have been most slightly 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 re-
searches of M. de Haxthausen, M. Tengoborski, and
others, have shown us that the Russian villages are
not fortuitous assemblages of men, nor are they
unions founded on contract ; they are naturally
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 tlie
seignior. But the pressure of this superior owner-
ship 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 pri-
vileges of ownership, and in a variety of spontaneous

CHAP. viii. RUSSIAN AND CROATIAN VILLAGES. 267

provisions for internal administration, the Russian
Village appears to be a nearly exact repetition of the
Indian Community ; but there is one important dif-
ference which we note with the greatest interest.
The co-owners of an Indian village, though their pro-
perty is blended, have their frights distinct, and this
separation of rights is complete and continues indefi-
nitely. The severance of rights is also theoretically
complete in a Russian village, but there it is only
temporary. After the expiration of a given, but not
in all cases of the same, period, separate ownerships
are extinguished, the land of the village is thrown
into a mass, and then it is re-distributed among the
families composing the 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 Sclayonia,
the villages are also brotherhoods of persons who are
at once co-owners and kinsmen ; but there the inter-
nal arrangements of the community differ from those
adverted to in the last two examples. The substance
of the common property is in this case neither divided

268 VARIETIES OP THE COMMUNITT. chap. viii.

in practice nor considered in theory as divisible, but
the entire land is cultivated by the combined labour
of all the villagers, and the produce is annually dis-
tributed among the households, sometimes according
to their supposed wants, sometimes according to rules
which give to particular persons a fixed share of the
usufruct. 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 prin-
ciple that the property of families cannot be divided
for a perpetuity.

The great interest of these phenomena in an in-
quiry like the present arises from the light they
throw on the developement 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 modem
ownerships, obscure at best, would have been infi-
nitely obscurer if several distinguishable forms of
Village Communities had not been discovered and
examined. It is worth while to attend to the varieties
of internal arrangement within the patriarchal groups
which are, or were till recently, observable among
races of Indo-European blood. The chiefs of the
ruder Highland clans used, it is said, to dole out

CHAP. VIII. VARIETIES OP THE COMMUNITY. 269

food to the heads of the households under their juris-
diction at the very shortest intervals, and sometimes
day by day. A periodical distribution is also made
to the Sclavonian villagers of the Austrian and
Turkish provinces by the elders of their body, but
then it is a distribution once for all of the total
produce of the year. In the Russian villages, how-
ever, the substance of the property ceases to be looked
upon as 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 inveterMe usage,
and by the rule against the admission of strangers
without the consent of the brotherhood. It is not of
course intended to insist that these different forms of
the Village-Community represent distinct stages in a
process of transmutation which has been everywhere
accomplished in the same manner. But, though the
evidence does not warrant our going so far as this, it
renders less presumptuous the conjecture that private
property, in the shape in which we know it, was
chiefly formed by the gradual disentanglement of the
separate rights of individuals from the blended rights

270 PHOBLEM AS TO ORIGIN OP PROPERTY, chap. viir.

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 house-
hold supplanted by the individual; and it is now
suggested that each step in the change corresponds to
an analogous alteration in the nature of Ownership.
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 im-
portant passage in the history of Private Property is
its gradual elimination from the co-ownership of
kinsmen, then the great point of inquiry is identi-
cal with that which lies on the threshold of all
historical law — what were the motives which origi-
nally prompted men to hold together in the family
union? To such a question, Jurisprudence, unas-
sisted by other sciences, is not competent to give a
reply. The fact can only be noted.

The undivided state of property in ancient so-

CHAP. VIII. ANCIENT DIFFICULTIES OF ALIENATION. 271

cieties 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 Modem International
Law, in respect of the size and complexity of the
corporate associations, whose rights and duties it
settles. As the contracts and conveyances known to
ancient law are contracts and conveyances to which
not single individuals, but organised companies of
men, are parties, they are in the highest degree cere-
monious ; they require a variety of symbolical acts
and words intended to impress the business on the
memory of all who take part in it; and they de-
mand the presence of an inordinate number of wit-
nesses. From these peculiarities, and others allied
to them, springs the universally unmalleable charac-
ter of the ancient forms of property. Sometimes the
patrimony of the family is absolutely inalienable, as
was the case with the Sclavonians, and still oftener,
though alienations may not be entirely illegitimate,
they are virtually impracticable, as among most of
the Germanic tribes, from the necessity of having the
consent of a large number of persons to the transfer.

272 ANCIEKT DIFFICULTIES OF ALIENATION, chap. viu.

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 com-
pleted by persons legally entitled to take part of it,
or else the conveyance is null, and the seller is
re-established in the rights of which he had vainly
attempted to divest himself.

These various obstacles to the free circulation of
the objects of use and enjoyment, begin of course to
make themselves felt as soon as society has acquired
even a slight degree of activity, and the expedients
by which advancing communities endeavour to over-
come them form the staple of the history of Property.
Of such expedients there is one w^iich takes prece-
dence of the rest from its antiquity and universality.
The idea seems to have spontaneously suggested
itself to a great number of early societies, 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. Sub-
sequently, the superior convenience of the rules go-

CHAP. VIII. KINDS OF PEOPERTY. 273

veming the transfer and descent of the lower order
of property becomes generally recognised, and by a
gradual course of innovation the plasticity of the
less dignified class of valuable objects is communi-
cated to the classes which stand conventionally
higher. The history of Roman Property Law is the
history of the assimilation of Res Mancipi to Res Nee
Mancipi. The history of Property on the European
Continent is the history of the 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 anni-
hilate 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 Immove-
ables. Familiar as is this classification to juris-
prudence, it was very slowly developed by Roman
law, from which we inherit it, and was only finally
adopted by it in its latest stage. The classifications
of Ancient Law have sometimes a superficial resem-
blance 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

274 ANCIENT KINDS OF PROPERTY. chap. vni.

from various rights to which they have a close affi-
nity. 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 per-
sonalty under the name of chattels real. Moreover,
the classifications of Ancient Law are classifications
implying superiority and inferiority; while the dis-
tinction between moveables and immoveables, so long
at least as it was confined to Roman jurisprudence,
carried with it no suggestion whatever of a difference
in dignity. The Res Mancipi, however, did certainly
at first enjoy a precedence over the Res Nee Man-
cipi, as did heritable property in Scotland and realty
in England, over the personalty to which they were
opposed. The lawyers of all systems have spared no
pains in striving to refer these classifications to some
intelligible principle ; but the reasons of the severance
must ever be vainly sought for in the philosophy of
law: they belong not to its philosophy, but to its
history. The explanation which appears to cover
the greatest number of instances is, that the objects
of enjoyment honoured above the rest were the forms
of property known first and earliest to each particular
community, and dignified therefore emphatically with
the designation of Property. On the other hand, the

CHAP. VIII. ANCIENT CLASSIFICATIONS. 275

articles not enumerated among the favoured objects
seem to have been placed on a lower standing, be-
cause the knowledge of their value was posterior to
the epoch at which the catalogue of superior property
was settled. They were at first unknown, rare, li-
mited in their uses, or else regarded as mere appen-
dages 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, be-
cause they were unknown to the early Romans. In
the same way chattels real in England are said to have
been degraded to the footing of personalty, from the
infrequency and valuelessness of such estates under
the feudal land-law. But the grand point of interest
is, the continued degradation of these commodities
when their importance had increased and their num-
ber had multiplied. Why were they not successively
included among the favoured objects of enjoyment?
One reason is found in the stubbornness with which
Ancient Law adheres to its classifications. It is a
characteristic both of uneducated minds and of early
societies, that they are little able to conceive a
general rule apart from the particular applications of
it with which they are practically familiar. They
cannot dissociate a general term or maxim from the
special examples which meet them in daily experi-
ence; and in this way the designation covering the

T 2

276 DEGRADATION OF INFERIOR PROPERTY, chap. rat.

best-known forms of property is denied to articles
which exactly resemble them in being objects of en-
joyment and subjects of right. But to these influ-
ences, 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 iraud. We are perhaps in some danger of under-
rating the inconveniences of the ancient modes of
transfer. Our instruments of conveyance are writ-
ten, so that their language, well pondered by the
professional draftsman, is rarely defective in accu-
racy. But an ancient conveyance was not written,
but acted. Gestures and words took the place of
written technical phraseology, and any formula mis-
pronounced, or symbolical act omitted, would have
vitiated the proceeding as fatally as a material mis-

CHAP.viii. DEFINITION OF RES MANCIPI. 277

take in stating the uses or setting out the remainders
would, two hundred years ago, have vitiated an
English deed. Tndeed, the mischiefs of the archaic
ceremonial are even thus only half stated. So long
as elaborate conveyances, written or acted, are re-
quired for the alienation of land alone, the chances
of mistake are not considerable in the transfer of a
description of property which is seldom got rid of
with much 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 clas's 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

T 3

278 RES NEC MANCIPI. chap. viii.

called a Mancipium or Mancipation ; but it was not
probably till much later that they received the dis-
tinctive 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 cere-
mony of Mancipation. It would be enough if, in
transferring these last from owner to owner, a part
only of the ordinary formalities were proceeded with,
namely, that actual delivery, physical transfer, or
tradition^ which is the most obvious index of a change
of proprietorship. Such commodities were the Res
Nee Mancipi of the ancient jurisprudence, "things
which did not require a Mancipation," little prized
probably at first, and hot often passed from one group
of proprietors to another. While, however, the list of
the Res Mancipi was irrevocably closed, that of the
Res Nee Mancipi admitted of indefinite expansion;
and hence every fresh conquest of man over material
nature added an item to the Res Nee Mancipi, or
effected an improvement in those already recognised*
Insensibly, therefore, they mounted to an equality
with the Res Mancipi, and the impression of an
intrinsic inferiority being thus dissipated, men began
to observe the manifold advantages of the simple
formality which accompanied their transfer over the
more intricate and more venerable ceremonial. Two
of the agents of legal amelioration. Fictions and
Equity, were assiduously employed by the Roman

CHAP. VIII. TRADITION. 279

lawyers to give the practical eflfects of a Mancipation
to a Tradition ; and, though Koman legislators long
shrank from enacting that the right of property in a
Res Mancipi should be immediately transferred by
bare delivery of the article, yet even this step was at
last ventured upon by Justinian, in whose jurispru*
dence the difference between Res Mancipi and Res
Nee Mancipi disappears, and Tradition or Delivery
becomes the one great conveyance known to the law.
The marked preference which the Roman lawyers
very early gave to Tradition 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 Nee
Mancipi is the type of a class of distinctions to which
civilisation is much indebted, distinctions which run
through the whole mass of commodities, placing a few
of them in a class by themselves, and relegating the
others to a lower category. The inferior kinds of

T 4

280 OTHER ANCIENT CLASSIFICATIONS. chap. viii.

property are first, from disdain and disregard, re-
leased from the perplexed ceremonies in which primi-
tive law delights, and thus afterward^, in another state
of intellectual progress, the simple methods of transfer
and recovery which have been allowed to come into
use serve as a model which condemns by its conve-
nience and simplicity the cumbrous solemnities in-
herited from ancient days. But, in some societies, the
trammels in which Property is tied up are much too
complicated and stringent to be relaxed in so easy a
manner. Whenever male children have been bom 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 cus-
toms seem to have been an exception — forbade aliena-
tions without the consent of the male children ; and
the primitive law of the Sclavonians even prohibited
them altogether. It is evident that such impediments
as these cannot be overcome by a distinction between
kinds of property, inasmuch as the difficulty extends
to commodities of all sorts; and accordingly. Ancient
Law, when once launched on a course of improvement,
encounters them with a distinction of another charac-
ter, a distinction classifying property, not according
to its nature but according to its origin. In India,
where there are traces of both systems of classifica-

CHAP. VIII. INHERITANCES AND ACQUISITIONS. 281

tion, the one which we are considering is exempli-
fied 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 bom; 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 Ger-
mans. I have repeatedly stated that the allod^ though
not inalienable, was commonly transferable with the
greatest difficulty; and moreover, it descended ex-
clusively to the agnatic kindred. Hence an extraor-
dinary variety of distinctions came to be recognised,
all intended to diminish the inconveniences insepara-
ble from allodial property. The wehrgeld^ for ex-
ample, or composition for the homicide of a relative,
which occupies so large a space in German jurispru-
dence, 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
aUod of the person to whom it was paid, and followed

282 INHERITANCES AND ACQUISITIONS, chap. vui.

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 cate-
gories, to each of which diflferent rules applied. This
exuberance of classification, which may strike us as
strange in so rude a people as the German conquerors
of the Empire, is doubtless to be explained by the
presence in their systems of a considerable element of
Roman law, absorbed by them, during their long
sojourn on the confines of the Roman dominion. It
is not difficult to trace a great number of the rules
governing the transfer and devolution of the commo-
dities which lay outside the aUodj to their source in
Roman jurisprudence, from which they were pro-
bably borrowed at widely distant epochs, and in
fragmentary importations. How far the obstacles to
the free circulation of property were surmounted by
such contrivances, we have not the means even of
conjecturing, for the distinctions adverted to have no
modem history. As I before explained, the allodial
form of property was entirely lost in the feudal, and
when the consolidation of feudalism was once com-

CHAP. viir. LAND AND GOODS. 283

pleted, there was practically but one distinction left
standing of all those which had been known to the
western world— the distinction between land and
goods, immoveables and moveables. Externally this
distinction was the saine with that which Roman law
had finally accepted, but the law of the middle ages
differed from that of Rome in distinctly consider-
ing 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 import-
ance in which this transmutation, though it has gone
some way, is not nearly accomplished. Our own, too,
it may be added, is the only considerable European
country in which the separation of moveables from
immoveables has been somewhat disturbed by the same
influences which caused the ancient classifications to
depart from the only one which is countenanced by
nature. In the main, the English distinction has been
between land and goods ; but a certain class of goods
have gone as heir-looms with the land, and a certain
description of interests in land have from historical
causes been ranked with personalty. This is not the

284 PRESCRIPTION. chap. viii.

only instance in which English jurisprudence, stand-
ing apart from the main current of legal modification,
has reproduced phenomena of archaic law.

I proceed to notice one or two more contrivances
by which the ancient trammels of proprietary right
were more or less successfully relaxed, premising that
the scheme of this treatise only permits me to men-
tion those which are of great antiquity. On one of
them in particular it is necessary to dwell for a mo-
ment or two, because persons unacquainted with the
early history of law will not be easily persuaded that
a principle, of which modem jurisprudence has very
slowly and with the greatest difficulty obtained the
recognition, was really familiar to the very infancy of
legal science. There is no principle in all law which,
the modems, 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 modem
jurisprudence under the name of Prescription. It
was a positive rule of the oldest Roman law, a rule
older than the Twelve Tables, that commodities
which had been uninterruptedly possessed for a cer-
tain period became the property of the possessor.
The period of possession was exceedingly short —
one or two years according to the nature of the
commodities — and in historical times Usucapion
was only allowed to operate when possession had

CHAP. VIII. INFLUENCE OP CANON LAW. 285

commenced in a particular way; but I think it
likely that at a less advanced epoch possession was
converted into ownership under conditions even less
severe than we read of in our authorities. As I
have said before, I am far from asserting that the
respect of men for de facto possession is a pheno-
menon which jurisprudence can account for by itself,
but it is very necessary to remark that primitive
societies, in adopting the principle of Usucapion,
were not beset with any of the speculative doubts
and hesitations which have impeded its reception
among the modems. Prescriptions were viewed by
the modem lawyers, first with repugnance, afterwards
with reluctant approval. In several countries, in-
cluding our own, legislation long declined to advance
beyond the rude device of barring all actions based
on a wrong which had been sufiered earlier than
a fixed point of time in the past, generally the first
year of some proceeding reign; nor was it till the
middle ages had finally closed, and James the First
had ascended the throne of England, that we ob-
tained a true statute of limitation of a very im-
perfect kind. This tardiness in copying one of the
most famous chapters of Roman law, which was no
doubt constantly read by the majority of European
lawyers, the modem world owes to the influence of
the Canon Law. The ecclesiastical customs out of
which the Canon Law grew, concerned as they were

2«6 INFLUENCE OF CANON LAW. chap, vui,

with sacred or quasi-sacred interests, very naturally
regarded the pririleges which they conferred as in-
capable of being lost through disuse however pro-
longed; and in accordance with this view, the spiri-
tual jurisprudence, when afterwards consolidated, was
distinguished by a marked leaning against Prescrip-
tions. It was the fate of the Canon Law, when held
up by the clerical lawyers as a pattern to secular legis-
lation, to have a peculiar influence on first principles.
It gave to the bodies of custom which were formed
throughout Europe far fewer express rules than did
the Roman law, but then it seems to have communi-
cated a bias to professional opinion on a surprising
number of fundamental points, and the tendencies
thus produced progressively gained strength as each
system was developed. One of the dispositions it
produced was a 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 neg-
lected, was in point of fact indestructible. The
remains of this state of feeling stiQ exist. Wherever
the philosophy of law is earnestly discussed, ques-
tions respecting the speculative basis of Prescription
are always hotly disputed ; and it is still a point of
the greatest interest in France and Germany, whether

CHAP. VIII. ROMAN USUCAPION. 287

a person who has been out of possession for a series
of years is deprived of his ownership as a penalty
for his neglect, or loses it through the summary inter-
position 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 pos-
session should have begun in good faith, that is, with
bdief on the part of the possessor that he was law-
fully acquiring the property, and it was farther re-
quired that the commodity should have been trans-
ferred to him by some mode of alienation which,
however unequal to conferring a complete title in
the particular case, was at least recognised by the law.
In the case therefore of a Mancipation, however
slovenly the performance might have been, yet if it
had been carried so far as to involve a Tradition or
Delivery, the vice of the title would be cured by
Usucapion in two years at most. I know nothing in
the practice of the Romans which testifies so strongly

288 COLLUSIVB RECOVERIES. chap. vin.

to their legal genius as the use which they made of
Usucapion. The difficulties which beset them were
nearly the same with those which embarrassed and
still embarrass the lawyers of England. Owing to
the complexity of their system, which as yet they
had neither the courage nor the power to recon-
struct, actual right was constantly getting divorced
from technical right, the equitable ownership from
the legal. But Usucapion, as manipulated by the
jurisconsults, supplied a self-acting toiachinery, by
which the defects of titles to property were always
in course of being cured, and by which the owner-
ships that were temporarily separated were again
rapidly cemented together with the briefest possible
delay. Usucapion did not lose its advantages till
the reforms of Justinian. But as soon as law and
equity had been completely fused, and when Manci-
pation ceased to be the Roman conveyance, there was
no further necessity for the ancient contrivance, and
Usucapion, with its periods of time considerably
lengthened, became the Prescription which has at
length been adopted by nearly all systems of modem
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

CHAP. VIII. COLLUSIVE RECOVERIES. 289

German civilians, not sufficiently aware of the light
thrown on the subject by the analogies of English
law, have thought it even older than the Mancipa-
tion. I speak of the Cessio in Jure, a collusive
recovery, in a Court of law, of property sought to
be conveyed. The plaintiff claimed the subject of
this proceeding with the ordinary forms of a litiga-
tion; the defendant made default; and the commodity
was of course adjudged to the plaintiff. I need
scarcely remind the English lawyer that this ex-
pedient suggested itself to our forefathers, and pro-
duced those famous Fines and Recoveries which did
so much to undo the harshest tranmiels 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 be-
tween them, that the object of the English lawyers
was to remove complications already introduced into
the title, while the Roman jurisconsults sought to
prevent them by substituting a mode of transfer
necessarily unimpeachable for one which too often
miscarried. The device is in fact one which suggests^
itself as soon as Courts of Law are in steady opera-
tion, but are nevertheless stiU 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 scrupu-.

u

290 PROPERTY AND POSSESSION. chap. viii.

lously complied with, they never dreamed of looking
further.

The influence of Courts of Law and of their proce-
dure upon Property has been most extensive, but thy
subject is too large for the dimensions of this treatise,
and would carry us further down the course of 1
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 eminentv
English civuian) 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 im-
portance 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 solu-
tion which he discovered for the enigma. Possession,
•

in fact, when employed by the Roman lawyers, ap-
pears to have contracted a shade of meaning not
easily accounted for. The word, as appears from its
etymology, must have originally denoted physical
contact or physical contact resumeable at pleasure ;
but, as actually used without any qualifying epithet,

ciiAP. viu. PllOrERTY AND POSSESSION. 291

it signifies not simply physical detention, but physical
detention coupled with the intention to hold the thing
detained as one's own. Savigny, following Niebuhr,
perceived that for this anomaly there could only be a
historical origin. He pointed out that the Patrician
burghers of Rome, who had become tenants of the
greatest part of the public domain at nominal rents,
were, in the view of the old Roman law, mere posses-
sors, but then they were possessors intending to keep
their land against all comers. They, in truth, put
forward a claim almost identical with that which has
recently been advanced in England by tne 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 Prastor 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

u 2

29i PROPERTY AND POSSESSION. chap. viif.

^inderstood 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 pos-
session. Then commenced a movement which, as
Mr. John Austin pointed out, exactly reproduced
itself in English law. Proprietors, domini, began to
prefer the simpler forms or speedier course of the
Interdict to the lagging and intricate formalities of
the Real Action, and for the purpose of availing
themselves of the possessory remedy fell back upon
the possession which was supposed to be involved in
their proprietorship. The liberty conceded to persons
who were not true Possessors, but Owners, to vindicate
their rights by possessory remedies, though it may
have been at first a boon, had ultimately the efiect of
seriously deteriorating both English and Roman juris*
prudence. The Roman law owes to it those subtleties
on the subject of Possession which have done so much
to discredit it, while English law, after the actions
which it appropriated to the recovery of real property
had fallen into the most hopeless confusion, got rid
at last of the whole tangled mass by a heroic remedy.
No one can doubt that the virtual abolition of the
English real^actions which took place nearly thirty
years since was a public benefit, but still persons sensi-
tive to the harmonies of jurisprudence will lament

CHAP. viir. LAW AND EQUITY. f^i

that, instead of cleansing, improving, and simplifying .
the true proprietary actions, we sacrificed them all to
the possessory action of ejectment, thus basing our
whole system of land recovery upon a legal fiction.

Legal tribunals have also powerfully assisted to
shape and modify conceptions of proprietary right by
means of the distinction between Law and Equity,
which always makes its first appearance as a distinc-
tion between jurisdictions. Equitable property in
England is simply property held under the jurisdic-
tion of the Court of Chancery. At Rome, the Prae-
tor's Edict introduced its novel principles in the guise
of a promise that under certain circumstances a par-
ticular action or a particular plea would be granted;
and, accordingly, the property in bonis^ or Equitable
Property, of Roman law was property exclusively
protected by remedies which had their source in the
Edict. The mechanism by which equitable rights
were saved from being overridden by the claims of
the legal owner was somewhat dificrent 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 consoli-
dated, were administered under the Roman system
by the same Court, nothing like the Injunction was
required, and the Magistrate took the Simpler course
of refusing to grant to the Civil Law Owner those
actions and pleas by which .alone he could obtain the

u 3

294 EQUITABLE PROPERTY. chap. viu.

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 proce-
dure, were able to preserve new forms of property in
a sort of provisional existence, until the time should
come when they were recognised by the whole law.
In this way, the Roman Praetor gave an immediate
right of property to the person who had acquired a
Res Mancipi by mere delivery, without waiting for
the ripening of Usucapion. Similarly he in time re-
cognised 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 com-
plete legal ownership. All these are examples in
which forms of proprietary right, distinctly new,
were recognised and preserved. But indirectly Pro-
perty has been affected in a thousand ways by equity
both in England and at Rome. Into whatever corner
of jurisprudence its authors pushed the powerful in-
strument in their command, they were sure to meet,
and touch, and more or less materially modify the
law of property. When in the preceding pages I have

CHAP. VIII. FEUDAL VIEW OF OWNERSHIP. 295

spoken of certain ancient legal distinctions and expe-
dients 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 Owner-
ship 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 Legalproperty
we have the clue to that difference in the conception
of Ownership, which apparently distinguishes the law
of the middle ages from the law of the Roman Em-
pire. The leading characteristic of the feudal con-
ception is its recognition of a double proprietorship,
the superior ownership of the lord of the fief coexist-
ing 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 Ro-
man distribution of rights over property into Quiri-
tartan or legal, and (to use a word of late origin)
Bonitarian or equitable. Gains himself observes
upon the splitting of dominion into two parts as a
singularity of Roman law, and expressly contrasts it
with the entire or allodial ownership to which other
nations were accustomed. Justinian, it is true, re-

u 4

*296 ROMAN AND BARBARIAN LAW. chap. viii.

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 Em-
pire, it may well be that they learned this distinction,
which afterwards bore remarkable fruit. In favour
of this theory, it must at all events be admitted that
the element of Roman law in the various bodies of
barbarian custom has been very imperfectly ex-
amined. The erroneous or insufficient theories which
have served to explain Feudalism resemble each other
in their tendency to draw off attention from this par-
ticular ingredient in its texture. The older investiga-
tors, 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 exist-
ing, in that pride of nationality which has led Grerman
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 never-
theless to conduct their investigations to any satis-
factory result, either from searching too exclusively
for analogies in the compilations of Justinian, or from

CHAP. VIII. ROMAN AND BARBARIAN LAW. 297

confining their attention to the compendia of Roman
law which are found appended to some of the extant
barbarian codes. But, if Roman jurisprudence had
any influence on the barbarous societies, it had pro-
bably produced the greatest part of its effects before
the legislation of Justinian, and before the prepara-
tion of these compendia. It was not the reformed
and purified jurisprudence of Justinian, but the
undigested system which prevailed in the Western
Empire, and which the Eastern Corpus Juris never
succeeded in displacing, that I conceive to have
clothed with flesh and muscle the scanty skeleton of
barbarous usage. The change must be supposed
to have taken place before the Germanic tribes had
distinctly appropriated, as conquerors, any portion
of the Roman dominions, and therefore long before
Germanic monarchs had ordered breviaries of Roman
law to be drawn up for the use of their Roman
subjects. The necessity for some such hypothesis
will be felt by everybody who can appreciate the
difference between archaic and developed law. Rude
as are the Leges Barharorum 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 our-

298 THE EMPHYTEUSIS. chap, yuu

selves that a considerable element of debased Roman
law already existed in the barbarian systems, we
shall have done something to remove a grave diffi-
culty. The German law of the conquerors and the
Roman law of their subjects would not have com-
bined if they had not possessed more affinity for each
other than refined jurisprudence has usually for the
customs of savages. It is extremely likely that the
codes of the barbarians, archaic as they seem, are
only a compound of true primitive usage with half-
understood Roman rules, and that it was the foreign
ingredient which enabled them to coalesce with a Ro-
man jurisprudence that had already receded some-
what from the comparative finish which it had
acquired under the Western Emperors.

But, though all this must be allowed, there are
several considerations which render it unlikely that
the feudal form of ownership was directly suggested
by the Roman duplication of domainial rights. The
distinction between legal and equitable property
strikes one as a subtlety little likely to be appre-
ciated by barbarians; and, moreover, it can scarcely
be understood unless Courts of Law are contemplated
in regular operation. But the strongest reason
against this theory is the existence in Roman Law of
a form of property — a creation of Equity, it is true
— which supplies a much simpler explanation of the
transition from one set of ideas to the other. This

CHAP. VIII. SYSTEMS OF TENANCY. / -209 V ?4'liOOLl

is the Emphyteusis, upon which the Fief ofvttiteJ-^'^? ART.
middle ages has often been £Eithered, though withot
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 ap-
pears 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 rapid-
ity 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

800 THE COLONI. cuap. viii.

of letting out agri vectigtUes, 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 origin-
ally been determined by his contract, was subse-
quently recognised by the Praetor as having himself
a qualified proprietorship, which in time became
known as an Emphyteusis. From this point the his-
tory of tenure parts into two branches. In the course
of that long period during which our records of the
Eoman Empire are most incomplete, the slave-gangs
of the great Roman families became transformed
into the colonic whose origin and situation constitute
one of the obscurest questions in all history. We
may suspect that they were formed partly by the ele-
vation of the slaves, and partly by the degradation of
the free farmers ; and that they prove the richer classes
of the Roman Empire to have become aware of the
increased value which landed property obtains when
the cultivator has an interest in the produce of the
land. We know that their servitude was predial ; that
it wanted many of the characteristics of absolute sla-
very, 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 modem
worlds. Though included in the lower courses of the

CHAP. vin. THE EMPHYTEUSIS. 301

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
Juria^ became a favourite and beneficial modification
of property; and it may be conjectured that wherever
free farmers existed, it was this tenure which regu-
lated their interest in the land. The PrsBtor, as has
been said, treated the Emphyteuta as a true proprietor.
When ejected, he was allowed to reinstate himself by
a Real Action, the distinctive badge of proprietary
right, and he was protected from disturbance by the
author of his lease so long as the canon^ or quit-rent,
was punctually paid. But at the same time it must
not be supposed that the ownership of the author of
the lease was either extinct or dormant. It was kept
alive by a power of re-entry on non-payment of the
rent, a right of pre-emption in case of sale, and a
certain control over the mode of cultivation. We
have, therefore, in the Emphyteusis a striking ex-
ample of the double ownership which characterised
feudal property, and one, moreover, which is much
simpler and much more easily imitated than the

302 ORIGIN OF TENURE. chap. vin.

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
limitrophij 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 resem-
bling that of the military colonies on the Austro-
Turkish border, had taken the place of the quit- rent
which was the service of the ordinary Emphyteuta.
It seems impossible to doubt that this was the
precedent copied by the barbarian monarchs who
founded feudalism. It had been within their view
for some hundred years, and many of the veterans
who guarded the border were, it is to be remembered,
themselves of barbarian extraction, who probably
spoke the Germanic tongues. Not only does the prox-
imity of so easily followed a model explain whence
the Prankish and Lombard Sovereigns got the idea
of securing the military service of their followers

CHAP. viu. FEUDAL SERVICES. 803

by granting away portions of their public domain ;
but it perhaps explains the tendency which imme-
diately showed itself in the Benefices to become here-
ditary, for an Emphyteusis, though capable of being
moulded to the terms of the original contract, never-
theless descended as a general rule to the heirs of the
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 *-, of quondam-master and quondam-slave. But
thill i^ is known that the earliest beneficiaries were
'iic ] >' rsonal companions of the sovereign, and it is
indisputable that this position, brilliant as it seems,
\va? at first attended by some shade of servile debase-
m?Tit. The person who ministered to the Sovereign
ill his Court had given up something of that absolute
p ^rsonal freedom which wks the proudest privilege of
1 Le allodial proprietor.

304 SPHERE OF CONTRACT. cbap. ix.

CHAP. IX.
THE EARI.Y HISTOEY OF CONTRACT.

There are few general propositions concerning the
age to which we belong which seem at first sight
^likely to be received with readier concurrence
than the assertion that the society of our day is
mainly distinguished from that of preceding gene-
rations by the largeness of the sphere which is
occupied in it by Contract. Some of the phenomena
on which this proposition rests are among those
most frequently singled out for notice, for comment,
and for eulogy. Not many of us are so unobservant
as not to perceive that in innumerable cases where old
law fixed a man's social position irreversibly at his
birth, modern law allows him to create it for himself by
convention ; and indeed several of the few exceptions
which remain to this rule are constantly denounced
with passionate indignation. The point, for instance,
which is really debated in the vigorous controversy
still carried on upon the subject of negro servitude,
is whether the status of the slave does not belong
to by-gone institutions, and whether the only relation
between employer and labourer which commends

CHAP. IX. CONTRACT AND POLITICAL ECONOMY. 305

itself to modern morality be not a relation deter-
mined exclusively by contract. The recognition of
this difference between past ages and the present
enters into the very essence of the most famous
contemporary speculations. It is certain that the
science of Political Economy, the only department
of moral inquiry which has made any considerable
progress in our day, would fail to correspond with
the facts of life if it were not true that Imperative
Law had abandoned the largest part of the field
which it once occupied, and had left men to settle
rules of conduct for themselves with a liberty never
allowed to them till recently. The bias indeed of most
persons trained in political economy is to consider
the general truth on which their science reposes as
entitled to become universal, and, when they apply
it as an art, their efforts are ordinarily directed to
enlarging the province of Contract and to curtailing
that of Imperative Law, except so far as law is
necessary to enforce the performance of Contracts.
The impulse given by thinkers who are under the
influence of these ideas is beginning to be very
strongly felt in the Western world. Legislation has
nearly confessed its inability to keep pace with the
activity of man in discovery, in invention, and in the
manipulation of accumulated wealth; and the law
even of the least advanced communities tends more
and more to become a mere surface-stratum having

X

306 CURRENT OPINIONS AS TO CONTRACT, chap. ix.

under it an ever-changing assemblage of contractual
rules with which it rarely interferes except to
compel compliance with a few fundamental principles
or unless it be called in to punish the violation of
good faith.

Social inquiries, so far as they depend on the con-
sideration of legal phenomena, are in so backward
a condition that we need not be surprised at not
finding these truths recognised in the commonplaces
which pass current concerning the progress of so-
ciety. These commonplaces answer much more to
our prejudices than to our convictions. The strong
disinclination of most men to regard morality as
advancing seems to be especially powerful when the
virtues on which Contract depends are in question,
and many of us have an almost instinctive reluctance
to admitting that good faith and trust in our fellows
are more widely difiused 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 charactel* of these frauds
shows clearly that, before they became possible, the
moral obligations of which they are the breach ipust
have been more than proportionately developed. It

CHAP. IX. THEFT AND BREACH OF TRUST. S07

is the confidence reposed and deserved by the many
which aflfords facilities for the bad faith of the few,
so that, if colossal examples of dishonesty occur,
there is no surer conclusion than that scrupulous
honesty is displayed in the average of the trans-
actions which, in the particular case, have supplied
the delinquent with his opportunity. If we insist
on reading the history of morality as reflected, in
jurisprudence, by turning our eyes not on the law
of Contract but on the law of Crime, we must be
carefiil 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

X 2

308 THEORIES OF CONTRACT. chap. ix.

lawyers, we find them inconsistent with the true
history of moral and legal progress. One class
of contracts, in which the plighted faith of the con-
tracting parties was the only material ingredient,
they specifically denominated Contracts ^wm gentium^
and though these contracts were undoubtedly the
latest bom into the Roman system, the expression em-
ployed implies, if a definite meaning be extracted from
it, that they were more ancient than certain other
forms of engagement treated of in Roman law, in
which the neglect of a mere technical 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 at-
tracted attention and the one in which he states most
unreservedly the opinions which made him the founder
of a sect, the veracity and good faith attributed to the
ancient Persians are repeatedly pointed out as traits
of primitive innocence which have been gradually

CHAP. IX. THE SOCIAL COMPACT. 809

obliterated by civilisation; and at a later period
be found a basis for all bis speculations in the
doctrine of an original Social Contract. The So-
cial Contract or Compact is the most systematic
form which has ever been assumed by the error
we are discussing. It is a theory which, though
nursed into importance by political passions, de-
rived all its sap from the speculations of lawyers.
True it certainly is that the famous Englishmen, for
whom it had first had attraction, valued it chiefly
for its political serviceableness, but, as I shall pre-
sently attempt to explain, they would never have
arrived at it, if politicians had not long conducted
their controversies in legal phraseology. Nor were
the English authors of the theory 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

X 3

310 ANALYSIS OF SOCIAL PHENOMENA, chap. ix.

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 hypo-
thesis 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 definite-
ness to the contractual origin of Law by insisting
on the Social Compact as a historical fact.

Our own generation has got rid of these erroneous
juridical theories, partly by outgrowing the intel-
lectual state to which they belong, and partly by
almost ceasing to theorise on such subjects altogether.
The favourite occupation of active minds at the pre-
sent 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 de-
generates into an idle exercise of curiosity, and is
especially apt to incapacitate the inquirer for compre-
hending states of society which differ considerably
from that to which he is accustomed. The mistake
of judging the men of other periods by the morality
of our own day has its parallel in the mistake of sup-
posing that every wheel and bolt in the modem social

CHAP. IX. MONTESQUIEU'S APOLOGUE. 311

machine had its counterpart in more rudimentary
societies. Such impressions ramify very widely, and
masque themselves very subtly, in historical works
written in the modem fashion ; but I find the trace
of their presence in the domain of jurisprudence in
ihe praise which is frequently bestowed on the little
apologue of Montesquieu concerning the Troglodytes,
inserted in the Lettres Persanea. The Troglodytes
were a people who systematically violated their Con-
tracts, and so perished utterly. K the story bears
the moral which its author intended, and is em-
ployed to expose an anti-social heresy by which this
century and the last have been threatened, it is most
unexceptionable ; but if the inference be obtained
from it that society could not possibly hold together
without attaching a sacredness to promises and agree-
ments which should be on something like a par with
the respect that is paid to them by a mature civilisa-
tion, it involves an error so grave as to be fatal to all
sound understanding of legal history. The fact is
that the Troglodytes have flourished and founded
powerful states with very small attention to the
obligations of Contract. The point which before all
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 sta-
tion into which he is bom, and next from the impera-

X 4

312 EARLY NOTIONS OF CONTRACT. chaf. ix

tive 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 "disre-
gard the engagements by which any one of its subor-
dinate members has attempted to bind it. Family, it
is true, may contract with family, chieftain with
chieftain, but the transaction is one of the same na-
ture, and encumbered by as many formalities, as the
alienation of property, and the disregard of one iota
of the performance is fatal to the obligation. The
positive duty resulting from one man's reliance on
the word of another is among the slowest conquests
of advancing civilisation.

Neither Ancient Law nor any other source of evi-
dence discloses to us society entirely destitute of the
conception of Contract. But the conception, when it
first shows itself, is obviously rudimentary. No
trustworthy primitive record can be read without
perceiving that the habit of mind which induces us
to make good a promise is as yet imperfectly deve-
loped, and that acts of flagrant perfidy are often
mentioned without blame and sometimes described
with approbation. In the Homeric literature, for in-
stance, the deceitful cunning of Ulysses appears as a
virtue of the same rank with the prudence of Nestor

CHAP. IX. ANQENT CONTRACTS. 313

the constancy of Hector, and the gallantry of Achilles.
Ancient law is still more suggestive of the distance
which separates the crude form of Contract from its
maturity. At first, nothing is seen like the interpo-
sition of law to compel the performance of a promise.
That which the law arms with its sanctions is not a
promise, but a promise accompanied with a solemn
ceremonial. Not only are the formalities of equal
importance with the promise itself, but they are, if
anything, of greater importance ; for that delicate
analysis which mature jurisprudence applies to the
conditions of mind under which a particular verbal
assent is given appears, in ancient law, to be trans-
ferred to the words and gestures of the accompanying
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 accTirately pro-
ceeded with, it is of no avail to plead that the promise
was made under duress or deception. The transmu-
tation of this ancient view into the familiar notion of
a Contract is plainly seen in the history of jurispru-
dence. First one or two steps in the ceremonial
are dispensed with; then the others are simplified
or permitted to be neglected on certain conditions ;
lastly, a few specific contracts are separated from the
rest and allowed to be entered into without form, the
selected contracts being those on which the activity
and energy of social intercourse depends. Slowly,

i-iriiA.

814 EARLY ROMAN CONTRACTS. chaf. ix-

but most distinctly, the mental engagement isolates
itself amid the technicalities, and gradually becomes
the sole ingredient on which the interest of the juris-
consult is concentrated. Such a mental engagement,
signified through external acts, the Romans called a
Pact or Convention; and when the Convention has
once been conceived as the nucleus of a Contract, it
soon becomes the tendency of advancing jurispru-
dence to break away the external shell of form and
ceremony. 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 Ro-
man 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 nexunij and the parties to the con-
tract were said to be neai^ expressions which must be
carefully attended to on account of the singular
durableness of the metaphor on which tfcey are
founded. The notion that persons under a contrac-
tual 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 modem ideas. What then
was involved in this nexum or bond ? A definition

CHAP IX. THE NEXUM. 815

which has descended to us from one of the Latm anti-
quarians describes nexum as omne quod geritur per ces
€t libramj "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 " avail-
ing a single individual or group," or Obligation.
Now Conveyances transfer Proprietary Rights, Con-
tracts create Obligations — how then can the two be
included under the same name or same general con-
ception? This, like many similar embarrassments,
has been occasioned by the error of ascribing to the
mental condition of an unformed society a faculty
which preeminently belongs to an advanced stage of
intellectual development, the faculty of distinguish-
ing in speculation ideas which are blended in practice.

316 SPECIALISING PROCESS IN ANCIENT LAW. chap. ix.

We have indications not to be mistaken of a state of
social aflfairs 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 corre-
sponds not to one but to several modem conceptions.
An ancient technical expression serves to indicate
a variety of things which in modem 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

CHAP. IX, SPECIALISING PROCESS IN ANCIENT LAW. 317

exemplify this phenomenon in various ways. Patri-
archal 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 ma-
terial property — over flocks, herds, slaves, children,
or wife. We cannot be absolutely certain of its old
Roman name, but there is very strong reason for be-
lieving, from the number of expressions indicating
shades of the notion of power into which the word
manus enters, that the ancient general term was
maniLS. But, when Roman law has advanced a
little, both the name and the idea have become spe-
cialised. Power is discriminated, both in word and
in conception, according to the object over which it
is exerted. Exercised over material commodities or
slaves, it has become dominium — over children it is
Potestas — over free persons whose services have
been made away to another by their own ancestor, it
is 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 compre-
hend the nature of the historical alliance between
Contracts and Conveyances. There seems to have
been one solemn ceremonial at first for all solemn

318 THE NEXUM. chap. ix.

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 eflFected
seem to have been employed in the making of a con-
tract. 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 im-
ply 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

CHAP. IX. CHANGES IN THE NEXUM. 819

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 Nexura 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 re-
mained because men had not become conscious that
they wanted a new one ; the old notion clung to the
mind because nobody had seen reason to be at the
pains of examining it. We have had the process
clearly exemplified in the history of Testaments. A
Will was at first a simple conveyance of property. It
was only the enormous practical difference that gra-
dually showed itself between this particular convey-
ance and all others which caused it to be regarded
separately, and even as it was, centuries elapsed
before the ameliorators of law cleared away the use-
less encumbrance of the nominal mancipation, and
consented to care for nothing in the Will but the
expressed intentions of the Testator. It is unfortu-
nate that we cannot track the early history of Con-
tracts with the same absolute confidence as the early
history of Wills, but we are not quite without
hints that contracts first showed themselves through
the nexum being put to a new use and after-

820 CHANGES IN THE NEXUM. chap. ix.

wards obtained recognition as distinct transactions
through the important practical consequences of
the experiment. There is some, but not very violent,
conjecture in the following delineation of the process.
Let us conceive a sale for ready money as the
normal type of the Nexum. The seller brought the
property of which he intended to dispose — a slave,
for example — the purchaser attended with the rough
ingots of copper which served for money — and an in-
dispensable assistant, the libripens^ presented himself
with a pair of scales. The slave with certain fixed
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 consi-
dered to be nexus. It follows, therefore, that the
same terra described the Conveyance by which the
right of property was transmitted, and the personal

CHAP. IX. CONVEYANCES AND CONTRACTS. 321

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 ^ndi nothing paid; we are brought at
once to a transaction indicative of much higher com-
mercial 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 un-
fairly summed up in the doctrine that " in the primi-
tive society property was nothing, and obligation
everything; " and it will now be seen that, if the pro-
position were reversed, it would be nearer the reality.
On the other hand, considered historically, the
primitive association of Conveyances and Contracts
explains something which often strikes the scholar
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 un-
derstand that the nexum was artificially prolonged to
give time to the debtor, we can better comprehend
his position in the eye of the public and of the law.
His indebtedness was doubtless regarded as an ano-
maly, and suspense of payment in general as an artifice
and a distortion of strict rule. The person who had

322 CONVEYANCES AND CONTRACTS. chap. ^x.

duly consammated 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 C!on-
veyance 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 Mancipa-
tio, 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 pro-
mise of the contractor has a higher sacredness than
the formalities with which it is coupled* In attempt-
ing to indicate the character of the changes passed
through in this interval, it is necessary to trespass a
little on a subject which lies properly beyond the
range of these pages, the analysis of Agreement
effected by the Roman jurisconsults. Of this ana-
lysis, the most beautiful monument of their sagacity,
I need not say more than that it is based on the
theoretical separation of the Obligation from the Con-
vention or Pact. Bentham and Mr. Austin have

CHAP. IX. ROMAN ANALYSIS OF AGREEMENT. 323

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 tha proferred
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 solvendaBrei." This definition
connects the Obligation with the Nexum through the
common metaphor on which they are founded, and
shows us with much clearness the pedigree of a pecu-
liar conception. The Obligation is the " bond " or
" chain," with which the law joins together persons
or groups of persons, in consequence of certain volun-
tary acts. The acts which have the effect of attracting

T 2

324 OBLIGATION. chaf. ix.

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 modem interpreters of the Civil Law who had
moral or metaphysical theories of their own to sup-
port. 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 figura-
tive image was allowed to present itself, explains an
otherwise puzzling peculiarity of Roman legal phra-
seology, 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

CHAP. IX. CONVENTION AND CONTRACT, 325

soon as it was completed, was, in almost all cases,
at once crowned with the Obligation, and so became
a Contract; and this was the result to which contract-
law was surely tending. But for the purpose of this
inquiry, we must attend particularly to the interme-
diate stage — that in which something more than a
perfect agreement was required to attract the Obliga-
tion. This epoch is synchronous with the period at
which the famous Roman classification of Contracts
into four sorts — the Verbal, the Literal, the Real,
and the Consensual — had come into use, and during
which these four orders of 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 Con-
vention. Each class of contracts was in fact named
from certain formalities which were required over and
above the mere agreement of the contracting parties.
In the Verbal Contract, as soon as the Convention
was effected, a form of words had to be gone through
before the vinculum juris was attached to it. In the
Literal 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 en*
gagement. The contracting parties came, in short|

T 3

326 ROMAN CONTRACTS. chap. ix.

to an understanding in each case; but, if they went
no further, they were not obliged to one another, and
could not compel performance or ask redress for a
breach of faith. But let them comply with certain
prescribed formalities, and the Contract was imme-
diately complete, taking its name from the particular
form which it had suited them to adopt. The excep-
tions to this practice will be noticed presently.

I have enumerated the four Contracts in their his-
torical 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 aU, and the only one treated of
by our authorities, was eflFected by means of a stipxda-
tion^ that is, a Question and Answer; a question ad-
dressed by the person who exacted the promise, and
an answer given by the person who made it. This
question and answer constituted the additional ingre-
dient which, as I have just explained, was demanded
by the primitive notion over and above the mere
agreement of the persons interested. They formed
the agency by which the Obligation was annexed.
The old Nexum has now bequeathed to maturer juris-
prudence first of all the conception of a chain uniting
the contracting parties, and this has become the Obli-

CHAP. IX. THE VERBAL CONTRACT. 327

gation. It has further transmitted the notion of a
ceremonial accompanying and consecrating the en-
gagement, and this ceremonial has been tAnsmuted
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 en-
lighten us. Looking to that history, we can under-
stand how the formal Conveyance was first separated
from the part of the proceeding which had immediate
reference to the business in hand, and how afterwards
it was omitted altogether. As then the question and
answer of the Stipulation were unquestionably the
Nexum in a simplified shape, we are prepared to find
that they long partook of the nature of a technical
form. It would be a mistake to consider them as
exclusively recommending themselves to the older
Roman lawyers through their usefulness in furnishing
persons meditating an agreement with an opportunity
for consideration and reflection. It is not to be dis-
puted that they had a value of this kind, which was
gradually recognised; but there is proof that their
function in respect to Contracts was at first formal
and ceremonial in the statement of our authorities,
that not every question and answer was of old suffi-
cient to constitute a Stipulation, but only a question

T 4

328 CONVENIENCE OF VERBAL CONTRACT, chap. ix.

and answer couched in technical phraseology specially
appropriated to the particular occasion.

But although it is essential for the proper apprecia-
tion of the history of contract-law that the Stipulation
should be understood to have been looked upon as a
solemn form before it was recognised as a useful
security, it would be wrong on the other hand to
shut our eyes to its real usefulness. The Verbal
Contract, though it had lost much of its ancient im-
portance, survived to the latest period of Roman
jurisprudence; and we may take it for granted that
no institution of Roman law had so extended a
longevity unless it served some practical advantage.
I observe in an English writer some expressions of sur-
prise that the Romans even of the earliest times were
content with so meagre a protecticm against haste and
irreflection. But on extnninmg the Stipulation e
and remembering that we have to do with
of society in which writMto^vidence was no

procurable, I think we
and Answer, had it b*
the purpose which it
designated a highly in
promisee who, in the c
the terms of the contrut-^
and the answer was Bive
promise that you will di
slave, at such and such a

t that this C

ly devised to

d have beei

sdient. It

stipulator^

fcnii of a c

CHAP. IX. CONVENIENCE OP VERBAL CONTRACT. S29

day?" "I do promise." Now, if we reflect for a
moment, we shall see 4ihat tHis obligation to put the
/promise interrogatively inverts the natural position
of the parties, and, by effectually breaking the teiior •
of the conversation, prevents the attention from
gliding -over a dangerous pledge. With us, a verbal
promise is, generally speaking, to be gathered exclu-
sively from the words of the promisor. In old Roman
law, another step was absolutely required; it was
necessary for the promisee, after the agreement had
been made, to sum up all its terms in a solemn inter-
rogation; and it was of this interrogation, of course,
and of the assent to it, that proof had to be given at
the trial — not of the promise, which was not in itself
binding. How great a difference this seemingly in-
significant peculiarity may make in the phraseology of
contract-law is speedily realised by the beginner in
Koman 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 promis(>r 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 promises ; in speaking of a party to a
contract, it is always the Stipulator, the person who

330 THE LITERAL CONTRACT. chap. ix.

asks the question, who is primarily alluded to. But
the serviceableness of the stipulation is most vividly
illustrated by referring to the actual examples in the
pages of the Latin comic dramatists. If the entire
scenes are read down in which these passages occur
(ex. gra. Plautus, Pseudolus^ Act I. sc. 1 ; Act IV.
sc. 6; Trinummus^ Act V. sc. 2), it will be perceived
how effectually the attention of the person meditating
the promise must have been arrested by the question,
and how ample was the opportunity for withdrawal
from an improvident undertaking.

In the Literal or Written Contract, the formal act
by which an Obligation was superinduced on the Con-
vention, was an entry of the sum due, where it could
be specifically ascertained, on the debit side of a
ledger. The explanation of this Contract turns on a
point of Roman domestic manners, the systematic
character and exceeding regularity of book-keeping
in ancient times. There are several minor difficulties
of old Roman law, as, for example, the nature of the
Slave's Peculium, which are only cleared up when we
recollect that a Roman household consisted of a num-
ber of persons strictly accountable to its head, and
that every single item of domestic receipt and expen-
diture, after being entered in waste books, was trans-
ferred at stated periods to a general household ledger.
There are some obscurities, however, in the descrip-
tions we have received of the Literal Contract, the

CHAP. IX. THE REAL CONTRACT- 331

fact being that the habit of keeping books ceased to
be universal in later times, and the expression
" Literal Contract," came to signify a form of engage-
ment entirely different from that originally under-
stood. We are not, therefore, in a position to say,
with respect to the primitive Literal Contract, whether
the obligation was created by a simple entry on the
part of the creditor, or whether the consent of the
debtor or a correspondent entry in his own books was
necessary to give it legal effect. The essential point
is however established that, in the case of this Con-
tract, all formalities were dispensed with on a condi-
tion being complied with. This is another step down-
wards in the history of contract-law.

The Contract which stands next in historical suc-
cession, 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 engage-
ments — the Obligation was drawn down as soon as
the delivery had actually taken place. Such a result
must have involved a serious innovation on the oldest
ideas of Contract ; for doubtless, in the primitive times,
when a contracting party had neglected to clothe his
agreement 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

832 THE CONSENSUAL CONTRACTS. chap. ix.

formally stipulated for it. But, in the Real Con-
tract, performance on one side is allowed to impose
a legal duty on the other — evidently on ethical
grounds. For the first time then moral consider-
ations 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. Conunission or Agency ; So-
cietas 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

ciiAF. IX. THE CONSENSUAL CONTRACTS. 333

the consent of the Parties is more emphatically given
than in any other species of agreement. But the
term Consensual merely indicates that the Obligation
is here annexed at once to tl\e Consensus. The Con-
sensus, or mutual assent of the parties, is the final and
crowning ingredient in the Convention, and it is the
special characteristic of agreements falling under one
of the four heads of Sale, Partnership, Agency, and
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, per-
forming, in transactions of the sort specified, the
exact functions which are discharged, in the other
contracts, by the Bes or Thing, by the Verba stipula-
tionis, and by the Literce or written entry in a ledger.
Consensual is therefore a term which does not involve
the slightest anomaly, but is exactly analogous to
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 col-
lective existence of every community is consumed in
transactions of buying and selling, of letting and
hiring, of alliances between men for purposes of
business, of delegation of business from one man to
another; and this is no doubt the consideration which
led the Romans, as it has led most societies, to relieve
these transactions from technical incumbrance, to

334 THE CONSENSUAL CONTRACTS. chap. ix.

abstain as much as possible from clogging the most
efficient springs of social movement. Such motives
were not of course confined to Rome, and the com-
merce 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 significa-
tion 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 appoint-,
ment of a PraBtor 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 Con-
tracts 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

CHAP. IX. THE CONSENSUAL CONTRACTS. 335

Nature," it seemed to be implied that the Consensual
Contracts were the type of the agreements most
congenial to the natural state; and hence arose the
singular belief that the younger the civilisation, the
simpler must be its forms of contract.

The Consensual Contracts, it will be observed, were
extremely limited in number. But it cannot be
doubted that they constituted the stage in the history
of Contract-law from which all modern conceptions of
contract took their start. The motion of the will
which constitutes agreement was now completely
insulated, and became the subject of separate con-
templation ; forms were entirely eliminated from the
notion of contract, and external acts were only
regarded as symbols of the internal act of volition.
The Consensual Contracts had, -moreover, been classed
in the Jus Gentium, and it was not long before this
classification drew with it the inference that they
were the species of agreement which represented the
engagements approved of by Nature and included in
her code. This point once reached, we are prepared
for several celebrated doctrines and distinctions of the
Roman lawyers. One of them is the distinction
between Natural and Civil Obligations. When a
person of 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

836 NATURAL AND CIViL OBLIGATIONS. chap. ix.

through some technical impedunent he was devoid
of the formal capacity for making a valid contract.
The law (and this is what the distinction implies)
would not enforce the obligation, but it did not
absolutely refuse to recognise it ; and natural obli-
gations differed in many respects from obligations
which were merely null and void, more particularly
in the circumstance that they could be civiUy con-
firmed, if the capacity for contract were subsequently
acquired. Another very peculiar doctrine of the
jurisconsults could not have had its origin earlier than
the period at which the Convention was severed from
the technical ingredients of Contract. They taught
that though nothing but a Contract could be the
foundation of an actiorij a mere Pact or Convention
could be the basis of a plea. It followed from this,
that though nobody could sue upon an agreement
which he had not taken the precaution to mature into
a Contract by complying with the proper forms, never-
theless a claim arising out of a valid contract could
be rebutted by proving a counter-agreement which
had never got beyond th^ state of a simple conven-
tion. An action for the recovery of a debt could be
met by showing a mere informal agreement to waive
or postpone the payment.

The doctrine just stated indicates the hesitation of
the PrflBtors in making their advances towards the
greatest of their innovations. Their theory of Natural

CHAP. IX. CHANGES IN CONTRACT-LAW. 337

law must have led them to look with especial favour on
the Consensual Contracts and on those Pacts or Con-
ventions of which the Consensual Contracts were only
particular instances ; but they did not at once venture
on extending to all Conventions the liberty of the
Consensual Contracts. They took advantage of that
special superintendence over procedure which had
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 pro-
ceeding. But, when they had proceeded thus far, it
was inevitable that they should proceed farther.
The revolution of the ancient law of Contract was
consummated when the Praetor of some one year
announced in his Edict that he would grant equitable
actions upon Pacts which had never been matured at
all into Contracts, provided only that the Pacts in
question had been founded on a consideration (causa).
Pacts of this sort are always enforced under the
advanced Roman jurisprudence. The principle is
merely the principle of the Consensual Contract
carried to its proper consequence ; and, in fact, if the
technical language of the Romans had been as plastic
as their legal theories, these Pacts enforced by the
Praetor would have been styled new Contracts, new
Consensual Contracts. Legal phraseology is, how-

z

338 PROGRESS OF CONTRACT-LAW. chap. ix.

ever, the part of the law which is the last to alter,
and the Pacts equitably enforced continued to be
designated simply PraBtorian Pacts. It will be re-
marked that unless there were consideration for the
Pact, it would continue nude so far as the new juris-
prudence was concerned; in order to give it effect, it
would be necessary to convert it by a stipulation into
a Verbal Contract.

The extreme importance of this history of Con-
tract, as a safeguard against almost innumerable
delusions, must be my justification for discussing it
at so considerable a length. It gives a complete
account of the march of ideas from one great land-
mark of jurisprudence to another. We begin with
the Nexum, in which a Contract and a Conveyance
are blended, and in which the formalities which ac-
company the agreement are even more important
than the agreement itself. From the Nexum we pass
to the Stipulation, which is a simplified form of the
older ceremonial. The Literal Contract comes next,
and here all formalities are waived, if proof of the
agreement can be supplied from the rigid observances
of a Roman household. In the Real Contract a
moral duty is for the first time recognised, and
persons who have joined or acquiesced in the partial
performance of an engagement are forbidden to
repudiate it on account of defects in form. Lastly,
the Consensual Contracts emerge, in which the

CHAP. IX. PROGRESS OF CONTRACT-LAW. 389

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
modem jurisprudence is so thoroughly leavened with
the Roman notions that it furnishes us with no con-
trasts or parallels from which instruction can be
gleaned. From the absence, however, of everything
violent, marvellous, or unintelligible in the changes I
have described, it may be reasonably believed that
the history of ancient Roman Contracts is, up to a
certain point, typical of the history of this class of
legal conceptions in other ancient societies. But it
is only up to a certain point that the progress of
Roman law can be taken to represent the progress of
other systems of jurisprudence. The theory of Na-
tural law is exclusively Roman. The notion of the
vinculum juris^ so far as my knowledge extends, is
exclusively Roman. The many peculiarities of the
mature Roman law of Contract and Delict which
are traceable to these two ideas, whether singly or in
combination, are therefore among the exclusive pro-
ducts of one particular society. These later legal

z 2

340 INFLUENCE OF BOMAN CONTRACT-LAW. chap. ix.

conceptions are important, not because they typify
the necessary results of advancing thought under all
conditions, but because they have exercised perfectly
enormous influence on the intellectual diathesis of the
modem 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 lan-
guage. Of the subjects which have whetted the
intellectual appetite of the modems, there is scarcely
one, except Physics, which has not been filtered
through Roman jurisprudence. The science of pure
Metaphysics had, indeed, rather a Greek than a Roman
parentage, but Politics, Moral Philosophy, and even
Theology, found in Roman law not only a vehicle of
expression, but a nidus in which some of their pro-
foundest 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 inte-
rests of the Eastern and Western worlds were sepa-
rated, the founders of Western thought belonged to

CHAP. IX. STATE OF THOUGHT IN THE EMPIRE. 341

a society which spoke Latin and reflected in Latin.
But in the Western provinces the only language which
retained sufficient precision for philosophical purposes
was the language of Roman law, which by a singular
fortune had preserved nearly all the purity of the
Augustan age, while vernacular Latin was degene-
rating 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 em-
ployed in these ardent inquiries was exclusively Greek,
and their theatre was the Eastern half of the Empire.
Sometimes, indeed, the conclusions of the Eastern
disputants became so important that every man's
assent to them, or dissent from them, had to be re-
corded, and then the West was introduced to the
results of Eastern controversy, which it generally
acquiesced in without interest and without resistance.
Meanwhile, one department of inquiry, difficult
enough for the most laborious, deep enough for the
most subtle, delicate enough for the most refined,
had never lost its attractions for the educated classes
of the Western provinces. To the cultivated citizen

z 3

342 EASTERN AND WESTERN IDEAS. chap. ix.

of Africa, of Spain, of Gaul, and of Northern Itely,
it was jurisprudence, and jurisprudence only, which
stood in the place of poetry and history, of philosophy
and science. So far then from their being anything
mysterious in the palpably legal complexion of the
earliest eflPbrts of Western thought it would rather be
astonishing if it had assumed any other hue. I can
only express my surprise at the scantiness of the at-
tention which has been given to the diflFerence between
Western ideas and Eastern, between Western theology
and Eastern, caused by the presence of a new ingre-
dient. It is precisely because the influence of juris-
prudence begins to be powerful that the foundation
of Constantinople and the subsequent separation of
the Western Empire from the Eastern, are epochs in
philosophical history. But continental thinkers are
doubtless less capable of appreciating the importance
of this crisis by the very intimacy with which notions
derived from Roman Law are mingled up with their
everyday ideas. Englishmen, on the other hand, are
bKnd to it through the monstrous ignorance to which
they condemn themselves of the most plentiful source
of the stream of modem knowledge, of the one intel-
lectual result of the Roman civilisation. At the same
time, an Englishman, who will be at the pains to
familiarise himself with the classical Roman law, is
perhaps, from the very slightness of the interest
which his countrymen have hitherto taken in the

CHAP. IX. QUASI-CONTRACT. 343

subject, a better judge than a Frenchman or a Ger-
man of the value of the assertions I have ventured to
make. Anybody who knows what Roman jurispru-
dence is, as actually practised by the Romans, and
who will observe in what characteristics the earliest
Western theology and philosophy diflfer 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.

^e part of Roman law which has had most exten-
sive influence on foreign subjects of inquiry has been
the law of Obligation, or what comes nearly to the
same thing, of Contract and Delict. The Romans
themselves were not unaware of the offices which the
copious and malleable terminology belonging to this
part of their system might be made to discharge, and
this is proved by their employment of the peculiar
adjunct qu(xsi 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 circum-
stances are the symbols of the same ingredients
which are symbolised, in express contracts, by
words; and whether a man employs one set of
symbols or the other must be a matter of indiffer-

z 4

344

QUASI-CONTRACT. chap. ix. {"j

ence so far as concerns the theory of agreement.
But a Quasi-Contract is not a contract at all. The
commonest sample of the class is the relation sub-
sisting between two persons one of whom has paid
money to the other through mistake. The law,
consulting the interests of morality, imposes an obli-
gation on the receiver to refund, but the very nature
of the transduction indicates that it is not a contract,
inasmuch as the Convention, the most essential ingre-
dient of Contract, is wanting. This word " qu||fi,"
prefixed to a term of Roman law, implies that the
conception to which it serves as an index is con-
nected with the conception with which the com-
parison is instituted by a strong superficial analogy
or resemblance. It does not denote that the two
conceptions are the same or that they belong to the
same genus. On the contrary, it negatives the
notion of an identity between them; but it points
out that they are sufficiently similar for one to be
classed as the sequel to the other, and that the
phraseology taken 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 con-
fusion between Implied Contracts, which are true
contracts, and Quasi Contracts, which are not con-
tracts at all, has much in common with the famous

Ji

CBAP. IX. THE SOCIAL COMPACT. 845

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 de-
scribe that reciprocity of rights and duties which
men had always conceived as existing between
sovereigns and subjects. While the world was full
of maxims setting forth with the utmost positiveness
the claims of kings to implicit obedience — maxims
which pretended to have had their origin in the
New Testament, but which were really derived from
indelible recollections of the Caesarian despotism —
the consciousness of correlative rights possessed by
the governed would have been entirely without the
means of expression if the Roman law of Obligation
had not supplied a language capable of shadowing
forth an idea which was as yet imperfectly de-
veloped. The antagonism between the privileges
of kings and their duties to their subjects was never,
I believe, lost sight of since Western history began,
but it had interest for few except speculative writers
so long as feudalism continued in vigour, for feudal-
ism eflfectually 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 me-
diaeval constitutions out of working order, and when

346 F0LITIC8 AND ROMAN LAW. chap. u.

the Reformation had discredited the authority of the
Pope, the doctrine of the divine right of Kings rose
immediately into an importance which had never
before attended it. The vogue which it obtained en-
tailed still more constant resort to the phraseology of
Roman law, and a controvert 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 pheno-
mena of society and law. But the only real connec-
tion between political and legal science had consisted
in the last giving to the first the benefit of its pecu-
liarly plastic terminology. The Roman jurispru-
dence of Contract had performed for the relation of
sovereign and subject precisely the same service
which, in a humbler sphere, it rendered to the rela-
tion of persons bound together by an obligation of
" quasi-contract." It had furnished a body of words
and phrases which approximated with sufiicient

CHAP. K. ETHICS AND ROMAN LAW 347

accuracy to the ideas which then were from time to
time forming on the subject of political obligation.
The doctrine of an Original Compact can never be put
higher than it is placed by Dr. Whewell, when he
suggests that, though unsound, " it may be a conve-
nient 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 plentifiilness in political science of
words and conceptions, which were the exclusive
creation of Roman jurisprudence. Of their plentifal-
ness in Moral Philosophy a rather different explana-
tion must be given, inasmuch as ethical writings have
laid Roman law under contribution much more
directly than political speculations, and their authors
have been much more conscious of the extent of their
obligation. In speaking of moral philosophy as
extraordinarily indebted to Roman jurisprudence, I
must be understood to intend moral philosophy as
imderstood previously to the break in its history
effected by Kant, that is, as the science of the rules
governing human conduct, of their proper interpre-
tation and of the limitations to which they are
subject. Since the rise of the Critical Philosophy,
moral science has almost wholly lost its older mean-
ing, and, except where it is preserved under a debased

\

348 ETHICS AND ROMAN LAW. chap. rx.

form in the casuistry still cultivated by Roman
"Oatholic theologians, it seems to be regarded nearly
universally as a branch of ontological inquiry. I do
not know that there is a single contemporary English
writer, with the exception of Dr. Whewell, who un-
derstands moral philosophy as it was understood
before it was absorbed by metaphysics and before the
groundwork of its rules came to be a more important
consideration than the rules themselves. So long,
however, as ethical science had to do with the
practical regimen of conduct, it was more or less
saturated with Roman law. Like all the great
subjects of modem thought, it was originally incor-
porated with theology. The science of Moral Theo-
logy, as it was at first called, and as it is still
designated by the Roman Catholic divines, was un-
doubtedly constructed, to the full knowledge of its
authors, by taking principles of conduct from the
system of the Church, and by using the language and
methods of jurisprudence for their expression and
expansion. While this process went on, it was in-
evitable that jurisprudence, though merely intended
to be the vehicle of thought, should communicate its
colour to the thought itself. The tinge received
through contact with legal conceptions is perfectly
perceptible in the earliest ethical literature of the
modern world, and it is evident, I think, that the Law
of Contract, based as it is on the complete reciprocity

CHAP. IX. ETHICS AND ROMAN LAW.

and indissoluble connection of rights and duti
acted as a wholesome corrective to the predispositioffi
of writers who, if left to themselves, might have ex-
clusively viewed a moral obligation as the public
duty of a citizen in the Civitas Dei. But the amoimt
of Koman Law in moral theology becomes sensibly
smaller at the time of its cultivation by the great
Spanish moralists. Moral theology, developed by the
juridical method of doctor commenting on doctor,
provided itself with a phraseology of its own, and
Aristotelian peculiarities of reasoning and expression,
imbibed doubtless in great part from the Disputa-
tions on Morals in the academical schools, take the
place of that special turn of thought and speech
which can never be mistaken by any person conversant
with the Roman law. If the credit of the Spanish
school of moral theologians had continued, the juridi-
cal 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 inte-
rest for the leaders of European speculation; and the
new science of Moral Philosophy, which was entirely
in the hands of the Protestants, swerved greatly aside
from the path which the moral theologians had fol-
lowed. The efifect was vastly to increase the influence
of Roman law on ethical inquiry.

350 MORAL PHILOSOPHY. chap. ix.

" Shortly* after the Reformation, we find two great
schools of thought dividing this class of subjects
between them. The most influential of the two was
at first the sect or school known to us as the Casuists,
all of them in spiritual communion with the Roman
Catholic Church, and nearly all of them affiliated to
one or other of her religious orders. On the other
side were a body of writers connected with each other
by a common intellectual descent from the great
author of the treatise De Jure BeUi et PaciSy Hugo
Grotius. Almost all of the latter were adherents of
the Reformation, and though it cannot be said that
they were formerly and avowedly at conflict with
the Casuists, the origin and object of their system
were nevertheless essentially difl^erent from those
of Casuistry. It is necessary to call attention to
this difiference, because it involves the question of
the influence of Roman law on that department of
thought with which both systems are concerned.
The book of Grotius, though it touches questions of
pure Ethics in every page, and though it is the pa-
rent immediate or remote of innumerable volumes of
formal morality, is not, as is well known, a professed
treatise on Moral Philosophy; it is an attempt to
determine the Law of Nature, or Natural Law. Now,
without entering upon the question, whether the con-

* The passage quoted is transcribed with slight alterations from a
paper contributed by the author to the Cambridffe Essays for 1860.

CHAP. IX. GROTIUS AND HIS SCHOOL. S51

ception of a Law Natural be not exclusively a crea-
tion of *the Roman jurisconsults, we may lay down
that, even on the admission of Grotius himself, the
dicta of the Roman jurisprudence as to what parts of
known positive law must be taken to be parts of the
Law of Nature, are, if not infallible, to be received
at all events with the profoundest respect. Hence
the system of Grotius is implicated with Roman law
at its very foundation, and this connection rendered
inevitable — what the legal training of the writer
would perhaps have entailed without it — the free
employment in every paragraph of technical phraseo-
logy, and of modes of reasoning, defining, and illus-
trating, which must sometimes conceal the sense, and
almost always the force and cogency, of the argument
from the reader who is unfamiliar with the sources
whence they have been derived. On the other hand,
Casuistry borrows little from Roman law and the
views of. morality contended for have nothing what-
ever in common with the undertaking of Grotius.
All that philosophy of right and wrong which has
become famous, or infamous, under the name of
Casuistry, had its origin in the distinction between
Mortal and Venial Sin. A natural anxiety to escape
the awful consequences of determining a particular act
to be mortally sinful, and a desire, equally intelligible,
to assist the Roman Catholic Church in its conflict
with Protestantism by disburthening it of an incon-

952 CASUISTRY. chap. ix.

venient theory, were the motives which impelled the
authors of the Casuistical philosophy to the invention
of an elaborate system of criteria, intended to remove
immoral actions, in as many cases as possible, out of
the category of mortal ofiences, and to stamp them as
venial sins. The fate of this experiment is matter of
ordinary history. We know that the distinctions of
Casuistry, by enabling the priesthood to adjust spiri-
tual control to all the varieties of human character,
did really confer on it an influence with princes,
statesmen, and generals, unheard of in the ages
before the Keformation, and did really contribute
largely to that great reaction which checked and nar-
rowed the first successes of Protestantism. But
beginning in the attempt, not to establish, but to
evade — ^not to discover a principle, but to escape a
postulate — not to settle the nature of right and
wrong, but to determine what was not wrong of a
particular nature, — Casuistry went on with its dex-
terous refinements till it ended in so attenuating
the moral features of actions, and so belying the
moral instincts of our being, that at length the con-
science of mankind rose suddenly in revolt against it,
and consigned to one common ruin the system and its
doctors. The blow, long pending, was finally struck
in the Provincial Letters of Pascal, and since the ap-
pearance of those memorable Papers, no moralist of
the smallest influence or credit has ever avowedly

CHAP. IX. ETHICS AND ROMAN LAW. 353

conducted his speculations in the footsteps of the
Casuists. The whole field of ethical science was thus
left at the exclusive command of the writers who fol-
lowed Grotius ; and it still exhibits in an extraordi-
nary degree the traces of that entanglement with
Roman law which is sometimes imputed as a fault,
and sometimes the highest of its recommendations, to
the Grotian theory. Many inquirers since Grotius's
day have modified his principles, and many, of course,
since the rise of the Critical Philosophy, have quite
deserted them; but even those who have departed
most widely from his fundamental assumptions have
inherited much of his method of statement, of his
train of thought, and of his mode of illustration ; and
these have little meaning and no point to the person
ignorant of Roman jurisprudence."

I have already said that, with the exception of the
physical sciences, there is no walk of knowledge
which has been so slightly affected by Roman law as
Metaphysics. The reason is that discussion on me-
taphysical subjects has always been conducted in
Greek, first in pure Greek, and afterwards in a dialect
of Latin expressly constructed to give expression to
Greek conceptions. The modem languages have only
been fitted to metaphysical inquiries by adopting
this Latin dialect, or by imitating the process which
was originally followed in its formation. The source
of the phraseology which has been always employed

A A

854 METAPHYSICS AND ROMAK LAW. chap. ix.

for metaphysical discussion in modem times was the
Latin translations of Aristotle, in which, whether
derived or not firom 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 phvases equal to the expres-
sion 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 lan-
guage, ever showed the smallest capacity for produc-
ing a philosophy of law. Legal science is a Roman
creation, and the problem of Free-will arises when we
contemplate a metaphysical conception under a legal
aspect. How came it to be a question whether in-
variable sequence was identical with necessary con-

CHAP. IX. THEOLOGY AND ROMAN LAW. 355

nection ? I can only say that the tendency of Roman
law, which became stronger as it advanced, was to
look upon legal consequences as united to legal causes
by an inexorable necessity, a tendency most markedly
exemplified in the definition of Obligation which I
have repeatedly cited, "Juris vinculum quo neces-
sitate adstringimur alicujus solvendae 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 Jurispru-
dence has made itself felt in Theology. The great
pdint 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 pro-
blems to which it first addressed itself were those for
which Greek philosophy in its later forms had pre-
pared the way. Greek metaphysical literature con*

A A 2

356 GREEK AND LATIN CHURCHES. chap. ix.

tained 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 con-
clusions 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 theo-
logy of the Eastern divines, rather than a vigorous
and original examination on her part of those mys-
teries. The Latin Church was the scholar as 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 " — " w-hile the interminable controversy stlQ

CHAP. IX. PROBLEMS OF WESTERN CHURCH. 357

lengthened out and cast forth sect after sect from the
enfeebled community" — ^the Western Church threw
itself with passionate ardour into a new order of dis-
putes, the same which from those days to this have
never lost their interest for any family of mankind at
any time included in the Latin communion. The
nature of Sin and its transmission by inheritance —
the debt owed by man and its vicarious satisfaction
— the necessity and sufficiency of the Atonement —
above all the apparent antagonism between Free-will
and the Divine Providence — these were the points
which the West began to debate as ardently as ever
the East had discussed the articles of its more special
creed. Why is it then that on the two sides of the
line which divides the Greek-speaking from the
Latin-speaking provinces there lie two classes of
theological problems so strikingly different from one
another? The historians of the Church have come
close upon the solution when they remark that the
new problems were more " practical," less absolutely
speculative, than those which had torn Eastern
Christianity asunder, but none of them, so far as I
am aware, has quite reached it. I affirm without
hesitation that the difference between the two theo-
logical systems is accounted for by the fact that, in
passing from the East to the West, theological specu-
lation had passed from a climate of Greek metaphysics
to a climate of Roman law. For some centuries

A A 3

358 ROMAN LAW IN THE WEST. chap. ix.

before these controversies rose into overwhelming
importance, all the intellectual activity of the Western
Romans had been expended on jurisprudence exclu-
sively. They had been occupied in applying a pecu-
liar set of principles to all the combinations in which
the circumstances of life are capable of being arranged.
No foreign pursuit or taste called off their attention
from this engrossing occupation, and for carrying it
on they possessed a vocabulary as accurate as it was
copious, a strict method of reasoning, a stock of
general propositions on conduct more or less verified
by experience, and a rigid moral philosophy. It was
impossible that they should not select from the ques-
tions indicated by the Christian records those which
had some affinity with the order of speculations to
which they were accustomed, and that their manner
of dealing with them should borrow something firom
their forensic habits. Almost everybody who has
Jcnowledge enough of Eoman law to appreciate the
Roman penal system, the Roman theory of the obli-
gations established by Contract or Delict, the Roman
view of Debts and of the modes of incurring, extin-
guishing, and transmitting them, the Roman notion
of the continuance of individual existence by Universal
Succession, may be trusted to say whence arose the
frame of mind to which the problems of Western
theology proved so congenial, whence came the phra-
seology in which these problems were stated, and

cHAr. IX. THEOLOGY AND ROMAN LAW. 859

whence the description of reasoning employed in their
solution. It must only be recollected that the Roman
law which had worked itself into Western thought
was neither the archaic system of the ancient city,
nor the pruned and curtailed jurisprudence of the
Byzantine Emperors ; still less, of course, was it the
mass of rules, nearly buried in a parasitical over-
growth of modem speculative doctrine, which passes
by the name of Modem 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 ahned 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 ad-
vancing the proposition, that from the close of the
Augustan era to the general awakening of interest
on the points of the Christian faith, the mental ener-

A A 4

360 GREEK AND LATIN-SPEAKING PROVINCES, ch. ix.

gies of the civilised world were smitten with a para-
lysis. Novv there are two subjects of .thought — the
only two perhaps with the exception of physical
science — which are able to give employment to aU
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 con-
fidently affirm that Rome and the West had an occu-
pation in hand fully capable of compensating them
for the absence of every other mental exercise, and I
add that the results achieved, so far as we know
them, were not unworthy of the continuous and ex-
clusive labour bestowed on producing them. Nobody
except a professional lawyer is perhaps in a position
completely to understand how much of the intellectual
strength of individuals Law is capable of absorbing,
but a layman has no difficulty in comprehending why
it was that an unusual share of the collective intellect
of Rome was engrossed by jurisprudence. " The
proficiency * of a given community in jurisprudence
depends in the long run on the same conditions as its

• Cambridge Ea&mfSj 1866.

CH. IX. CAUSES OF IMPROVEMENT IN ROMAN LAW. 361

progress in any other line of -inquiry; and the chief
of these are the proportion of the national intellect
devoted to it, and the length of time during which it
is so devoted. Now, a combination of all the causes,
direct and indirect, which contribute to the advancing
and perfecting of a science continued to operate on the
jurisprudence of Kome through the entire space be-
tween the Twelve Tables and the severance of the two
Empires, — and that not irregularly or at intervals,
but in steadily increasing force and constantly aug-
menting number. We should reflect that the earliest
intellectual exercise to which a young nation devotes
itself is the study of its laws. As soon as the mind
makes its first conscious efforts towards generalis-
ation, the concerns of every-day life are the first to
press for inclusion within general rules and com-
prehensive formulas. The popularity of the pursuit
on which all the energies of the young common-
wealth are bent is at the outset unbounded; but
it ceases in time. The monopoly of mind by law
is broken down. The crowd at the morning au-
dience of the great Roman jurisconsult lessens.
The students are counted by hundreds instead of
thousands in the English Inns of Court. Art,
Literature, Science, and Politics, claim their share
of the national intellect; and the practice of juris-
prudence is confined within the circle of a profes-
sion, never indeed limited or insignificant, but at-

363 CAUSES OF IMPROVEMENT IN ROMAN LAW. ch. ix.

tracted 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 sii^enly closed under a variety of influences,
which though they may partially be traced it would
be improper in this place to analyse. Ancient intel-
lect was forcibly thrust back into its old courses, and
law again became no less exclusively the proper
sphere for talent than it had been in the days when
the Romans despised philosophy and poetry as the
toys of a childish race. Of what nature were the ex-
ternal inducements which, during the Imperial period,
tended to draw a man of inherent capacity to the
pursuits of the jurisconsult may best be understood

CHAP. IX. ROMAN LAW m THE EAST. 363

by considering the option which was practically before
him in his choice of a profession. He might become
a teacher of rhetoric, a commander of frontier-posts,
or a professional writer of panegyrics. The only
other walk of active life which was open to him was
the practice of the law. Through that lay the
approach to wealth, to fame, to office, to the council-
chamber of the monarch — it may be to the very
throne itself."

The premium on the study of jurisprudence was so
enormous that there were schools of law in every part
of the Empire, even in the very domain of Metaphy-
sics. But, though the transfer of the seat of empire
to Byzantium gave a perceptible impetus to its culti-
vation in the East, jurisprudence never dethroned
the pursuits which there competed with it. Its lan-
guage was Latin, an exotic dialect in the Eastern half
of the Empire. It is only of the West that we can
lay down that law was not only the mental food of
the ambitious and aspiring, but the sole aliment of
all intellectual activity. Greek philosophy had never
been more than a transient fashionable taste with the
educated class of Rome itself, and when the new
Eastern capital had been created, and the Empire
subsequently divided into two, the divorce of the
Western provinces from Greek speculation, and their
exclusive devotion to jurisprudence, became more de-
cided than ever. As soon then as they ceased to sit

964 ROMAN LAW IN WESTERN THEOLOGY, chap. ix.

at the feet of the Greeks and began to ponder out a
theology of their own, the theology proved to be per-
meated with forensic ideas and couched in a forensic
phraseology. It is certain that this substratum of
law in Western theology lies exceedingly deep. A
new set of Greek theories, the Aristotelian philosophy,
made their way afterwards into the West and almost
entirely buried its indigenous doctrines. But when
at the Reformation it partially shook itself free from
their influence, it instantly supplied their place with
Law. It is difficult to say whether the religious sys-
tem of Calvin or the religious system of the Armi-
nians has the more markedly legal character.

The vast influence of the specific jurisprudence of
Contract produced by the Romans upon the corre-
sponding department of modem 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 ftilly developed the
conception of Contract becomes of importance at a
much earlier period than this. Feudalism, I have
repeatedly asserted, was a compound of archaic bar-
barian usage with Roman law; no other explanation
of it is tenable, or even intelligible. The earliest
social forms of the feudal period differ in little from
the ordinary associations in which the men of primi-'

CHAP. IX. CONTRACT-LAW AND FEUDALISM. 365

tive civilisations are everywhere seen united. A
Fief was an organically complete brotherhood of
associates whose proprietary and personal rights were
inextricably blended together. It had much in com-
mon with an Indian Village Community and much
in common with a Highland clan. But still it pre-
sents some phenomena which we never find in the asso-
ciations which are spontaneously formed by beginners
in civilisation. 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 cha-
racteristics of a patriarchal chieftain, but his pre-

3e6 CONTRACT-LAW AND FEUDALISM. chap. ix.

rogative was limited by a variety of settled customs
traceable to the express conditions which had been
agreed upon when the infeudation took place. Hence
flow the chief differences which forbid us to class the
feudal societies with true archaic communities* They
were much more durable and much more various;
more durable, because express rules are less destruc-
tible than instinctive habits, and more various, be-
cause the contracts on which they were founded were
adjusted to the minutest circumstances and wishes of
the persons who surrendered or granted away their
lands. This last consideration may serve to indicate
how greatly the vulgar opinions current among us
as to the origin of modem society stand in need of
revision. It is often said that the irregular and
various contour of modem civiKsation 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 modem 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.

LAW IN ANQENT CODES. 367

CHAP. 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 mag-
nitude or of the proportion of their parts to each
other. But still on the whole all the known collections (
of ancient law are characterised by a feature which
broadly distinguishes them from systems of mature
jurisprudence. The proportion of criminal to civil
law is exceedingly different. In the German codes, the
civil part of the law has trifling dimensions as com-
pared with the criminal. The traditions which speak
of the sanguinary penalties inflicted by the code of
Draco seem to indicate that it had the same charac-
teristic. In the Twelve Tables alone, produced by a
society of greater legal genius and at first of gentler
manners, the civil law has something like its modem
precedence ; but the relative amount of space given

368 PENAL LAW IN ANCIENT CODES. chap. x.

to the modes of redressing wrong, though not enor-
mous, 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 recol-
lected that the comparative barrenness of civil law
in archaic collections is consistent with those other
characteristics of ancient jurisprudence which have
been discussed in this treatise. Nine-tenths of the
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 boun-
daries, the nearer we make our approaches to the
infancy of social brotherhood. The Law of Persons,
which is nothing else than the Law of Status, wQl
be restricted to the scantiest limits as long as all
forms of status are merged in common subjection to
Paternal Power, as long as the Wife has no rights
against her Husband, the Son none against his

CHAP. X. CRIMES AND WRONGS. 369

Father, and the infant Ward none against the Ag-
nates 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 ungovemed 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 ofifences against the
State or Community and ofifences against the Indi-
vidual, and the two classes of injuries, thus kept
apart, I may here, without pretending that the terms

B B

870 CRIMES AND WRONGS. chap. x.

have always been employed consistently in jurispru-
dence, 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
lise the English technical word, of Torts. The person
injured proceeds against the wrong-doer by an ordi-
nary civil action, and recovers compensation in the
shape of money-damages if he succeeds. If the
Commentaries of 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 torte, 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 compensa-
tions for minor injuries. " Under Anglo-Saxon law,"
writes Mr. Kemble (Anglo- Saxons y i. 177), "a sum
was placed on the life of every free man, according
to his rank, and a corresponding sum on every wound

CHAP. X. WRONGS AND SINS. 871

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 rulfes 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^
wrotiffj or tort be that the person who suflfers it, and
not the State, is conceived to be wronged, it may be
asserted that in the infancy of jurisprudence the
citizen depends for protection against violence or
fraud not on the Law of Crime but on the Law of
Tort.

Torts then are copiously enlarged upon in primi-
tive jurisprudence. It must be added that Sins are ;
known to it also. Of the Teutonic codes it is almost
unnecessary to make this assertion, because those
codes, in the form in which we have received them,
were compiled or recast by Christian legislators. But
it is also true that non-christian bodies of archaic
law entail penal consequences on certain classes of
acts and on certain classes of omissions, as being
violations of divine prescriptions and commands. The
law administered at Athens by the Senate of Areo-

B B 2

372 CONCEPTION OF CRIME. chap. il.

pagus was probably a special religious code, and at
Rome, apparently from a very early period, the Pon-
tifical jurisprudence punished adultery, sacrilege and
perhaps murder. There were therefore in the Athe-
nian and in the Roman States laws punishing sins.
There were also laws punishing torts. The concep-
tion 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
jthis conception is realised is the true cause which at
[first prevents the growth of a criminal law. At all
events, when the Roman community conceived itself
to be injured, the analogy of a personal wrong received
was carried out to its consequences with absolute
literalness, and the State avenged itself by a single
act on the individual wrong-doer. The result was
that, in the infancy of the commonwealth, every
offence vitally touching its security or its interests
was punished by a separate enactment of the legis-
lature. And this is the earliest conception of a
crimen or Crime — an act involving such high issues
that the State, instead of leaving its cognisance

CHAF. X. ANCIENT CONCEPTION OF CRIME. 373

to the civil tribunal or the religious court, directed
a special law or privilegium against the perpetrator.
Every indictment therefore took the form of a bill
of pains and penalties, and the trial of a criminaA
was a proceeding wholly extraordinary, wholly irreJ
gular, wholly independent of settled rules and fixed!
conditions. Consequently, both for the reason that
the tribunal dispensing justice was the sovereign
state itself and also for the reason that no classifi-
cation of the acts prescribed or forbidden was pos- j
sible, there was not at this epoch any Law of crimes,
any criminal jurisprudence. The procedure was
identical with the forms of passing an ordinary
statute; it was set in motion by the same persons
and conducted with precisely the same solemnities.
And it is to be observed that, when a regular
criminal law with an apparatus of Courts and officers
for its administration had afterwards come into
being, the old procedure, as might be supposed
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 oflfences 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 6i<rayysx/a, survived the esta-
blishment of regular tribunals. It is known too

,B B 3

374 ANCIENT PROCEDURE. chap. x.

that when the freemen of the Teutonic races assem-
bled for legislation, they also claimed authority to
punish offences of peculiar blackness or perpetrated
by criminals of exalted station. Of this nature was
the criminal jurisdiction of the Anglo-Saxon Witen-
agemot.

It may be thought that the difference which I have
asserted to exist between the ancient and modem
view of penal law has only a verbal existence.
The community, it may be said, besides inter-
posing to punish crimes legislatively, has from the
earliest times interfered by its tribunals to compel
the wrong-doer to compound for his wrong, and,
if it does this, it must always have supposed that
in some way it was injured through his offence.
But, however rigorous this inference may seem to
us now-a-days, it is vevj doubtful whether it was
actually drawn by the men of primitive antiquity.
How little the notion of injury to the community
had to do with the earliest interferences of the State
through its tribunals^ is shown by the curious circum-
stances that in the original administration of justice,
the proceedings were a close imitation of the series
of acts which were likely to be gone through in
private life by persons who were disputing, but who
afterwards suffered their quarrel to be appeased.
The magistrate carefully simulated the demeanour
of a private arbitrator casually called in.

CHAP. X. THE ROMAN LEGIS ACTIO. 375

In order to show that this statement is not a mere
fanciful conceit, I will produce the evidence on
which it rests. Very far the most ancient judicial
proceeding known to us is the Legis Actio Sacra-
menti 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 pro-
ceeding 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
Quirittum meum esse dico secundum suam causam
sicutdixi; " and then saying, " Ecce tibi Vindictam im-
posui" he touches him with the spear. The de-
fendant goes through the same series of acts and
gestures. On this the Praetor intervenes, and bids
the litigants relax their hold, ^^ Mittite ambo ho-
minem.*^ They obey, and the plaintiff demands from
the defendant the reason of his interference, ^'Pos-

B B 4

S76 MEANING OF THE LEGIS ACTIO. chaf. x.

tulo anne dicas qud ex caitsd vindicaveris" a question
which is replied to by a fresh assertion of right,
" Jus peregi sicut vindictam imposuL On this, the
first chiimant offers to stake a sum of money, called
a Sacramentum, on the justice of his own case,
" Quando tu injurid provocastij D ceris Sacramento te
provoco" and the defendant, in the phrase " Similiter
ego fe," accepts the wager. The subsequent proceed-
ings were no longer of a formal kind, but it is to
be observed that the Praetor took security for the
Sacramentum, which always went into the coffers of
the State.

Such was the necessary preface of every ancient
Roman suit. It is impossible, I think, to refuse
assent to the suggestion of those who see in it a
dramatization of the Origin of Justice. Two armed
men are wrangling about some disputed property.
The Praetor, vir pietate gravis^ happens to be going
by, and interposes to stop the contest. The dis-
putants state their case to him, and agree that
he shall arbitrate between them, it being arranged
that the loser, besides resigning the subject of the
quarrel, shall pay a sum of money to the umpire
as remuneration for his trouble and loss of time.
This interpretation would be less plausible than it
is, were it not that, by a surprising coincidence, the
ceremony described by Gains as the imperative
course of proceeding in a Legis Actio is substantially

CHAP. X. ANCIENT SUIT IN HOMER. 377

the same with one of the two subjects which the
God HephaBstus is described by Homer as moulding
into the First Compartment of the Shield of Achilles.
In the Homeric trial-scene, the dispute, as if ex-
pressly intended to bring out the characteristics of
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 character-
istic, 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 Praetor

378 ANCIENT VIEW OF PROCEDUKE. chap. x.

represents. But that the incidents described so
vividly by Homer, and by Gains with even more
than the usual crudity of technical language, have
substantially the same meaning, I cannot doubt;
and, in confirmation of this view it may be added
that many observers of the earliest judicial usages
of modem Europe have remarked that the fines
inflicted by Courts on oflfenders 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 plaintifi^ simply as the
fair price of its time and trouble. Mr. Kemble,
expressly assigns this character to the Anglo-Saxon
hannum ov fredum.

Ancient law furnishes other proofs that the earliest
administrators of justice simulated the probable acts
of persons jengaged in a private quarrel. In settling
the damages to be awarded, they took as their guide
the measure of vengeance likely to be exacted by an
aggrieved person under the circumstances of the
case. This is the true explanation of the very dif-
ferent penalties imposed by ancient law on ofifenders
caught in the act or soon after it and on oflfenders
detected after considerable delay. Some strange ex-
emplifications of this peculiarity are supplied by the
old Roman law of Theft. The Laws of the Twelve
Tables seem to have divided Thefts into Manifest and

CHAP. X. OLD ROMAN LAW OP THEFT. 379

Non-Manifest, and to have allotted' extraordinarily
different penalties to the offence according as it fell
under one head or the other. The Manifest Thief
was he who was caught within the house in which
he had been pilfering, or who was taken while making
off to a place of safety with the stolen goods; the
Twelve Tables condemned him to be put to death if
he were already a slave, and, if he was a freeman, they
made him the bondsman of the owner of the pro-
perty. The Non-Manifest Thief was he who was
detected under any other circumstances than those
described ; and the old code simply directed that an
offender of this sort should refund double the value
of what he had stolen. In Gaius's day the excessive
severity of the Twelve Tables to the Manifest Thief
had naturally been much mitigated, but the law still
maintained the old principle by mulcting him in
fourfold the value of the stolen goods, while the
Non- Manifest Thief still continued to pay merely thS
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

380 ANCIENT MEASURE OF PUNISHMENT, chap. x.

down and caught with the booty to be hanged or
decapitated on the spot, while they exact the full
penalties of homicide from anybody who kills him
after the pursuit has been intermitted. These archaic
distinctions bring home to us very forcibly the
distance of a refined from a rude jurisprudence.
The modern administrator of justice has confessedly
one of his hardest tasks before him when he under-
takes to discriminate between the degrees of crimin-
ality 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 conse-
quently what measure of punishment he has deserved.
There is hardly any perplexity in casuistry, or in the
analysis of motive, which we may not be called upon
to confront, if we attempt to settle such a point with
{)recision ; and accordingly the law of our day shows
an increasing tendency to abstain as much as pos-
sible from laying down positive rules on the subject.
In France, the jury is left to decide whether the
offence which it finds committed has been attended
by extenuating circumstances ; in England, a nearly
unbounded latitude in the selection of punishments is
now allowed to the judge ; while all States have in
reserve an ultimate remedy for the miscarriages of law
in the Prerogative of Pardon, universally lodged with

CHAP. X. TRUE CRIMINAL JURISPRUDENCE. 381

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 punish-
ment. I wish it could be said that their method of
legislation is quite extinct. There are, however,
several modem systems of law which, in cases of
graver wro]Qg, admit the fact of the wrong doer having
been taken the act to be pleaded in justification of
inordinate punishment inflicted on him by the
sufferer — an indulgence which, though superficially
regarded it may seem intelligible, is based, as it
seems to me, on a very low morality.

Nothing, I have said, can be simpler than the con-
siderations which ultimately led ancient societies to
the formation of a true criminal jurisprudence. The'
State conceived itself to be wronged, and the Popular
Assembly struck straight at the oflFender with the
same movement which accompanied its legislative
action. It is further true of the ancient world —
though not precisely of the modem, as I shall have
occasion to point out — that the earliest criminal
tribunals were merely subdivisions, or committees, of
the legislature. This, at all events, is the conclusion
pointed at by the legal history of the two great

382 CRIMINAL JURISDICTION OF LEGISLATURE, chap. x.

states of antiquity, with tolerable clearness in one
case, and with absolute distinctness in the other.
The primitive penal law of Athens entrusted the
castigation of offences partly to the Archons, who
seem to have punished them as torfe, and partly to
the Senate of Areopagus, which punished them as
sins. Both jurisdictions were substantially trans-
ferred in the end to the Heliaea, the High Court of
Popular Justice, and the functions of the Archons
and of the Areopagus became either merely minis-
terial or quite insignificant. But "Heliaea" is only
an old word for Assembly; the Heliasa of classical
times was simply the Popular Assembly .convened
for judicial purposes, and the famous Dikafiteries 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
Qua3stio or Commission, which bore much the same
relation to the Assembly which a Committee of the

CHAP. X. THE QU^STIONES. 383

House of Commons bears to the House itself, except
that the Roman Commissioners or QuaBstores did not
merely report to the Comitia, but exercised all powers
which that body was itself in the habit of exercising,
even to the passing sentence on the Accused. A
Quaestio of this sort was only appointed to try a par-
ticular offender, but there was nothing to prevent
two or three Quaestiones sitting at the same time;
and it is probable that several of them were ap-
pointed simultaneously, when several grave cases of
wrong to the community had occurred together.
There are also indications that now and then these
Quaestiones approached the character of our Standing
Committees, in that they were appointed periodi-
cally, and without waiting for occasion to arise in
the commission of some serious crime. The old
Quaestores Parricidii, who are mentioned in connec-
tion with transactions of very ancient date, as being
deputed to try (or, as some take it, to search out
and try) all cases of parricide and murder, seem to
have been 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 pe-
riodically. 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

884 QU-ffiSTIONES PERPETU-E. chap. x.

jurisdiction over such as might be perpetrated. Our
proximity to a regular criminal jurisprudence is also
indicated by the general terms " Parricidium" and
" Perduellio," which mark the approach to some-
thing like a classification of crimes.

The true criminal law did not however come into
existence till the year B.C. 149, when L. Calpumius
Piso carried the statute known as the Lex Calpumia
de Repetundis. The law applied to cases Repetun-
darum Pecuniarum, that is, claims by Provincials to
recover monies improperly received by a Governor-
General, but the great and permanent importance of
this statute arose from its establishing the first Quaestio
Perpetua. A Quaestio Perpetua was a Permanent
Commission as opposed to those which were occasional
and to those which were temporary. It was a re-
gular criminal tribunal, whose existence dated from
the passing of the statute creating it and continued
till another statute should pass abolishing it. Its
members were not specially nominated, as were the
members of the older Quaestiones, but provision was
made in the law constituting it for selecting from
particular classes the judges who were to offi-
ciate, and for renewing them in conformity with
definite rules. The oflfences of which it took cog-
nisance were also expressly named and defined in
this statute, and the new Quaestio had authority to
try and sentence all persons in future whose acts

CHAP.x. HISTORY OF CRIMINAL LAW. 385

should fall under the definitions of crime supplied by
the law. It was therefore a regular criminal judica-
ture, 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 Quaestiones or Commissions, each of which
is deputed to investigate a particular accusation, and
if it be proved, to punish the particular offender.
Yet another movement is made when the Legislature,
instead of waiting for the alleged commission of a
crime as the occasion of appointing a Quaestio, periodi-
cially nominates Commissioners like the Quaestores
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 Quaestiones

c n

386 THE QU-ESTIONES PERPETCJ^. chap. x.

from being periodical or occasional become permanent
Benches or Chambers — when the judges, instead of
being named in the particular law nominating the
Commission, are directed to be chosen through all
future time in a particular way and from a particular
class — and when certain acts are described in general
language and declared to be crimes, to be visited, in
the event of their perpetration, with specified penal-
ties appropriated to each description.

If the QuaBstiones Perpetuse had had a longer his-
tory, 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 connec-
tion 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 Conmiissions 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 Quaestiones to the Comitia which had
deputed them to put into exercise some of its own
inalienable functions. The view which regarded the
QusBstiones, even when they became permanent, as
mere Committees of the Popular Assembly — as
bodies which only ministered to a higher authority

cHAP.x. THEORY OF THB QUiESTIONES. 387

— had some important legal consequenees 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 Quaestiones
had been established. Though the legislature had
consented to delegate its powers for the sake of con-
venience to bodies external to itself, it did not follow
that it surrendered them. The Comitia and the
QuaBstiones 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 Quaestiones on the Comitia. The
disappearance of the punishment of Death from
the penal system of Republican Rome used to be a
very favourite topic with the writers of the last
century, who were perpetually using it to point some
theory of the Roman character or of 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 Cen-

c c 2

388 PUNISHMENT OF DEATH. chap. x.

turies, tlierefore, had all powerB which may be sup-
posed to be properly lodged with a General com-
manding an army, and, among them, it had authority
to subject aU offenders to the same correction to
which a soldier rendered himself liable by breaches
of discipline. The Comitia Centuriata could there-
fore inflict capital punishment. Not so, however,
the Comitia Curiata or Comitia Tributa. They were
fettered on this point by the sacredness with which
the person of a 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 QusBstiones Pepetuae were esta-
blished, so that the statutes creating them were all
passed by a legislative assembly which itself could
not, at its ordinary sittings, punish a criminal with

CHAP. X. PUNISHMENT OF DEATH. 389

death. It followed that the Permanent Judicial Com-
missions, holding a delegated authority, were cir-
cumscribed in their attributes and capacities by the
limits of the powers residing with the body which
deputed them. They could do nothing which the
Assembly of the Tribes could not have done; and,
as the Assembly could not sentence to death, the
Quaestiones were equally incompetent to award
capital punishment. The anomaly thus result-
ing was not viewed in ancient times with anything
like the favour which it has attracted among the
modems, and indeed, while it is questionable whether
the Roman character was at all the better for it, it is
certain that the Roman Constitution was a great deal
the worse. Like every other institution which has
accompanied the human race down the current of its
history, the punishment of death is a necessity of
society in certain stages of the civilising process.
There is a time when the attempt to dispense with it
baulks both of the two great instincts which lie at
the root of all penal law. Without it, the commu-
nity neither feels that it is sufficiently revenged
on the criminal, nor thinks that the example of
his punishment is adequate to deter others from
imitating him. The incompetence of the Roman
Tribunals to pass sentence of death led distinctly and
directly to those frightful Revolutionary intervals,
known as the Proscriptions, during which all law was

c c 3

390 RESULTS TRACEABLE TO THE QUiESTIONES. ch. x.

formally suspended simply because party violence
could find no other avenue to the vengeance for
which it was thirsting. Ne cau«e 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 aflTorded an adequate
vent for popular passion, the forms of judicial pro-
cedure would no doubt have been as flagrantly per-
verted as with us in the reigns of the later Stuarts,
but national character would not have sufiered as
deeply as it did, nor would the stability of Roman
institutions have been as seriously enfeebled.

I will mention two more singularities of the
Roman Criminal System which were produced by
the same theory of judicial authority. They are,
the extreme multiplicity of the Roman criminal tri-
bunals, and the capricious and anomalous classifica-
tion of crimes which characterised Roman penal
jurisprudence throughout its entire history. Every
Qucestio^ it has been said, whether Perpetual or other-
wise, 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 chartQr did not expressly define. As

CH. X. RESULTS TRACEABLE TO THE QU^STIONES. 891

then the statutes which constituted the various
Quasstiones were all called forth by particular emer-
gencies, each of them being in fact passed to punish
a class of acts which the circumstances of the time
rendered particularly odious or particularly dan-
gerous, these enactments made not the slightest
reference to each other, and were connected by no
common principle. Twenty or thirty different cri-
minal laws were in existence together, with exactly
the same number of Quaestiones to administer them;
nor was any attempt made during the Republic to
fuse these distinct judicial bodies into one, or to give
symmetry to the provisions of the statutes which
appointed them and defined their duties. The state
of the 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 Quaestiones, the Courts
of Queen's Bench, Common Pleas, and Exchequer,
were all theoretical emanations from a higher autho-
rity, and each entertained a special class of cases
supposed to be committed to it by the fountain of its
jurisdiction; but then the Roman Quaestiones were
many more than three in number, and it was infinitely
less easy to discriminate the acts which fell under

c c 4 j/

I T.T

392 TRIAL BY THE QUiESTIONES. chap. x.

the cognisance of each Quajstio, than to distinguish
between the provinces of the three Courts in West-
minster Hall. The difficulty of drawing exact lines
between the spheres of the different Quaestiones made
the multiplicity of Roman tribunals something more
than a mere inconvenience ; for we read with astonish-
ment that when it was not immediately clear under
what general description a man's alleged oflFences
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 Quaestio ousted the jurisdiction of the rest,
acquittal by one of them could not be pleaded to an
accusation before another. This was directly con-
trary to the rule of the 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
QuaBstiones caused them to be regarded much more
as temporary weapons in the hands of factions than as
permanent institutions for the correction of crime.
The Emperors soon abolished this multiplicity and
conflict of jurisdiction ; but it is remarkable that they
did not remove another singularity of the criminal
law which stands in close connection with the number
of the Courts. The classifications of crimes which

CHAP. X. CLASSIFICATIONS OP CRIMES. 398

Are contained even in the Corpus Juris of Justinian
are remarkably capricious. Each Quaestio had, in
fact, confined itself to the crimes committed to its
cognisance by its charter. These crimes, however
were only classed together in the original statute
because they happened to call simultaneously for
castigation at the moment of passing it. They had
not therefore anjrthing necessarily in common; but
the fact of their constituting the particular subject-
matter of trials before a particular Quaestio impressed
itself naturally on the public attention, and so in-
veterate did the association become between the
offences mentioned in the same statute that, even
when formal attempts were made by Sylla and by
the Emperor Augustus to consolidate the Roman
criminal law, the legislator preserved the old group-
ing. 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 ft law of Sylla,
the Lex Cornelia de Sicariis et Veneficis, had given
jurisdiction over all these three forms of crime to the
same Permanent Commission. It seems too that
this capricious grouping of crimes affected the ver-
nacular speech of the Romans. People naturally

394 LATER LAW OF CRIMES. ch/lp. x.

fell into the habit of designating all the offences enu-
merated in one law by the first name on the list,
which doubtless gave its style to the Law Court
deputed to try them all. All the offences tried by
the Quaestio De Adulteriis would thus be called
Adultery.

I have dwelt on the history and characteristics of
the Roman Quaestiones because the formation of a
criminal jurisprudence is nowhere else, so instruc-
tively exemplified. The last QusBstiones were added
by the Emperor Augustus, and from that time the
Romans may be said to have had a tolerably com-
plete criminal law. Concurrently with its growth,
the analogous process had gone on, which I have
called the conversion of Wrongs into Crimes, for,
though the Roman legislature did not extinguish the
civil remedy for the more heinous offences, it offered
the sufferer a redress which he was sure to prefer*
Still, even after Augustus had completed his legis-
lation, several offences continued to be regarded as
I Wrongs, which modem societies look upon exclu-
; sively as Crimes; nor did they become criminally
punishable till some late but uncertain date, at
which the law began to take notice of a new de-
scription of offences called in the Digest crimina
extraordinaria. These were doubtless a class of acts
which the theory of Roman jurisprudence treated
merely as wrongs; but the growing sense of the

CHAP. X. LATER LAW OF CRIMES. 895

majesty of society revolted from their entailing no-
thing 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 recog-
nised, 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
modem society. The Emperors did not immediately
abolish the Quaestiones, and at first they committed
an extensive criminal jurisdiction to the Senate, in
which, however servile it might show itself in fact,
the Emperor was no more nominally than a Senator
like the rest. But some sort of collateral criminal
jurisdiction had been claimed by the Prince from the
first ; and this, as recollections of the free common-
wealth decayed, tended steadily to gain at the ex-
pense of the old tribunals. Gradually the punish-
ment of crimes was transferred to magistrates
directly nominated by the Emperor and the pri-
vileges of the Senate passed to the Imperial Privy

896 SOVEREIGN THE FOUNTAIN OF JUSTICE, chap. x.

Council, which also became a Court of ultimate
criminal appeal. Under these influences the doc-
trine, familiar to the modems, 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^erfected 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 modem societies
from the necessity of travelling through the series
of changes which I have illustrated by the history of
the Quaestiones. In the primitive law of almost all
the races which have peopled Western Europe there
are vestiges of the archaic notion that the punish-
ment of crimes belongs to the general assembly of
freemen; and there are some States — Scotland is

CHAP. X. MODERN HISTORY OF CRIMES. 897

said to be one of them — in which the parentage of
the existing judicature can be traced up to a Com-
mittee of the legislative body. But the development
of the criminal law was universally hastened by two
causes, the memory of the Roman Empire and the
influence of the Church. On the one hand traditions
of the majesty of the Caesars, perpetuated by the
temporary ascendency of the House of Charlemagne,
were surrounding Sovereigns with a prestige which a
mere barbarous chieftain could never otherwise have
acquired and were conmiunicating to the pettiest
feudal potentate the character of guardian of so-
ciety and representative of the State. On the other
hand, the Church, in its anxiety to put a curb on
sanguinary ferocity, sought about for authority to
punish the graver misdeeds, and found it in those
passages of Scripture which speak with approval of
the powers of punishment committed to the civil ma-
gistrate. The New Testament was appealed to as
proving that secular rulers exist for the terror of
evil-doers; the Old Testament, as laying down that
" whoso sheddeth man's blood, by man shall his blood
be shed." There can be no doubt, I imagine, that
modem ideas on the subject of crime as based upon
two assumptions contended for by the Church in the
Dark Ages — first, that each feudal ruler, in his de-
gree, might be assimilated to the Roman Magistrates
spoken of by Saint Paul; and next, that the offences

898 DOCTRINE OF THE CHURCH AS TO CRIMES, ce. x.

which he was to chastise were those selected for
prohibition in the Mosaic Commandments, or rather
such of them as the Church did not reserve to her
own cognisance. Heresy, supposed to be included
in the First and Second Commandments, Adultery
and Perjury were ecclesiastical offences, and the
Church only admitted the co-operation of the secular
arm for the purpose of inflicting severer punishment
in cases of extraordinary aggravation. At the same
time, she taught that murder and robbery with their
various modifications were under the jurisdiction of
civil rulers, not as an accident of their position but
by the express ordinance of God.

There is a passage in the writings of King Alfred
(Kemble, ii. 209) which brings out into remarkable
clearness the struggle of the various ideas that pre-
vailed in his day as to the origin of criminal juris-
diction. It will be seen that Alfred attributes it
partly to the authority of the Church and partly
to that of the Witan, while he expressly claims for
treason against the lord the same immunity from
ordinary rules which the Roman Law of Majestas
had assigned to treason against the Caesar. " After
this it happened," he writes, " that many nations
received the faith of Christ, and there were many
synods assembled throughout the earth, and among
the English race also after they had received the faith
of Christ, both of holy bishops and of their exalted

CH. X. KING ALFRED ON CRIMINAL JURISDICTION. 399

Witan. They then ordained that, out of that mercy
which Christ had taught, secular lords, with their
leave, might without sin take for every misdeed the
hot in money which they ordained ; except in cases
of treason against a lord, to which they dared not
assign any mercy because Almighty God adjudged
none to them that despised Him, nor did Christ
adjudge any to them which sold Him to death ; and
He commanded that a lord should be loved like
Himself."

INDEX

INDEX.

ADOPTION.

Adoption, fiction of, 1 30.

influence of the sacra gentUiein on

the law of, 6, 7, 27.

in Hindoo law, 193.

Adprehensio; or assumption of sove-
reign power in a newly discovered
country, 249.

JEquitas, the term, 58. See Equity.

iEquus, the word, 59.

Agnatic and Cognatic relationship, dif-
ference between, 59, 146.

Agnation described, 147, 148.

Agreement, Roman analysis of, 322.

Agri vectigales, Roman practice of
letting out, 300.

■— limitrophi of the Romans on the

bankJs of the Rhine and Danube,
502.

Alexander the Sixth, Pope, his Bull,
249.

Alfred, King, his remarks on criminal
jurisdiction quoted, 398.

Alienation of property, ancient diffi-
culties of, 271.

— archaic ceremonies of, 272.

Allodial property, of the ancient Ger-
mans, 228, 281.

America, United States of. Declaration
of Independence of, 95.

Anglo-Saxons, character of their King-
ship, 108.
■ their l&w of succession, 280.

their penal law, 370, 374, 379.

Archon of Athens, office of the, 1 0.

Aristocracies, origin of the rule of, 10.

i those of Greece, Italy, and Asia

Minor, 10.

■ difference between those of the
Eastand West, 11.

. aristocracies, the depositaries and
administrators of the law, 11,12.

BURGUITDIAKS.

Aristocracies, importance of judicial, be-
fore the invention of writing, 12.

foundation of aristocracies, 132.

Aristotle, his <* Treatise on Rhetoric"
referred to, 75.

Assignees in Bankruptcy, succession of,
180.

Athenian wills, 1 96.

Athens, primitive penal law of, 382.

Augustus, the Emperor, his alterations
in the Roman law, 41, 42.

Austin's ** Province of Jurisprudence
determined,** referred to, 7.

Bayle referred to, 87.

Benefices of the invading chiefs of the

Roman Empire, 229.
— .- transformation of the Benefice into

the hereditory Fief, 230.
Bengalee Wills, 197.
Bentham, his " Fragment on Govern*

ment ** referred to, 7.
causes of bis influence in England,

78.
— ^ the Roman counterpart of Ben-

thanism, 79.

his theory of Jurisprudence, 117.

his eulogy of the Bull of Pope

Alexander the Sixth, 249.
Bentham and Austin's rules as to

the essentials of a contract, 323.
Blackstone, Sir William, his theory of

the first principles of law, 1 1 4.
his justification for the exclusion

of the half-blood, 152.
his theory of the origin of pro-
perty quoted, 251.

his theory criticised, 253.

Bonorum Possessio of the Romans, 211.
Braoton, hu plagiarisms, 82.
Burgundians, the, referred to, 104.

p s S

404

mDEX.

Caesar, Julius, his contemplated addi-
tions to the Roman Statute Law, 42.
Capet, Hugh, character of his sove-
reignty, 108.
Capture in War, sources of the modern
International Law of, 246.

ancient Law of, 247.

Caracalia, effect of his constitution in

enlarging the Patria Potestas, 144.
Casuists, the, 350.

comparison of their system with that

of Grotius and his school, 351.

origin of Casuistry, 351.

blow struck at Casuistry by Pas-
cal, 352.
Cessio in Jure of Property, in Roman

and in English law, 289.
Cestui que Trust, special proprietor-
ship created for the, 294.
Chancellor, the Lord, compared with a

Roman Praetor, 64, 65.
Chancery, Court of, in England, re-
marks on the, 44.
^— origin of its system, 44, 45.
Charlemagne, his claim to universal do-
minion, 104.

his distribution of Benefices, 229.

Children, disinherison of, under the

Romans, 215.
China, cause of the arrest of progress

in, 25.
Churches, Eastern and Western, con-
clusions of the East on theological
subjects accepted by the West with-
out dispute or review, 356.

— problems of the Western Church,

357.
Cicero referred to, 61.

his allusions to the ancient Roman

Sacroy 193.
Code Napol6on, restraints imposed by

it on the testamentary power, 176.
Codes, Ancient, 1.

sources of knowledge afforded by

the Greek Homeric poems, 2.
» Themistes, 4.

Hindoo Laws of Menu, 6.

difference between Case-law and

Code law, 1 4.
era of Codes, 14,

the Twelve Tables, 1, 2, 14.

—-the Codes of Solon and Draco,

14.
» importance of Codes to ancient so-
cieties, 16—19.

CONTRACT.

Co-emption, or higher form of civil
marriage of the ancient Romans, 154.

Cognatic relationship described, 146,
147.

Co-heirs, rights and duties of, 181.

rights of, under the Roman Law,

2*^7.

Coloni of the Romans, 231 .

origin and situation of the, 300.

Comitia Calata, ancient Roman execu*
tion of Wills in the, 199.

end of the, 203.

Comitia Centuriata, power of the, 387.

Curiata, powers of the, 318.

Tributa, powers of the, 388.

Commentaries of the Roman lawyers, 35.
Common law of England, formerly an

unwritten law, 1 3.

difference between Case-law and

Code law, 14.
Case-law and its anomalies, 3 1 .

■ similarity between English Case-

law and the Respousa Pruden-
tum of the Romans, 33.
Confarreation, or religious marriage of

the ancient Romans, 154.
Constantiue, the Emperor, his improve-
ments in the Law, 42.

— his modification of the Patria Po-

testas, 143.
Contract, movement of societies from
Status to, 170.

early history of, 304.

Contract and Political Economy,

305.

Rousseau*s doctrine of an original

Social Contract, 308, 309.
Montesquieu's apologue of the

Troglodytes, 311.

early notions of Contract, 312.

Roman Contracts, 314.

■ specialising process in ancient law,

816.

historical alliance between Con-
tracts and Conveyances, 31 7.

changes in the Nexum, 318.

Executory Contracts of Sale,

321.

primitive association of Convey-
ances and Contracts, 321.

ancient and modem ^doctrine of

Contracts, 323.

•— the Roman Obligation, 323.

— Roman classification of Contracts

325. •

raDEX.

C»NTRACT.

TiGTPT.

Contract, the Verbal Contract; 327.

tbe Literal or Written Contract,

330.

the Real Contract, 331.

Consensual Contracts, 332.

— changes in Contract law, 337.
^— history of the progress of Con-
tract law, 338.

Quasi- Contracts, 343.

Contract law and Fiefs, 365.

ConTeyances, relation of Wills to, under

the Roman Uw, 204.

consequence of this relation, 206.

remedies, 207.

— — historical alliance between Con-
tracts and Conveyances, 317.
Co-ownership of property, amongst the

Hindoos, 260, 26 U
regarded by the Roman law as ex-
ceptional and momentary, 261.
Corporations aggregate, 1 87.

sole, leading attribute of, 187.

** Corpus Juris CiWlis*' of Justinian, 68.

resorted to by English Chancery

judges, 44.

Creation, Greek philosophical explana-
tion of the fabric of, 55,

Creditors, cause of tbe extravagant
powers given to, by ancient laws, 321.

Crimes and Wrongs. See Delict and
Crime.

Croatia, co-ownership of the villagers
of, 267.

Curatores of male Orphans under the
Roman law, 161.

Curse, inherited, Greek notion of an, 127.

Customary Law, 5.

Homeric terms for customs, 5.

origin of customary law, 9.

epoch of customary law and its

custody by a privileged order, 1 3.

Cyclops, Homer's account of, quoted,
124.

Death, disappearance of, from the penal
system of republican Rome, 387.

— causes for this, 387, 388.

death-punishment a necessity in

certain stages of society, 389.
Debtors, cause of the severity of ancient

laws against, 321.
Decretals, forged, motives of the author

of the, 82.
Delict and Crime, early history of, 367.

Penal law in ancient codes, 367.

Delict and Crime, Crimes ant
erimina and delicta, 370.

and Crime, Furtum or Theft"

Roman law, 370, 379.

Wrongs and Sins both known to

primitive jurisprudence, 371.

difference between the ancient and

modern conception of Crime,S73.

— ^ the Roman Legis Actio Sacra-
ment i, 375.

Homer's description of an ancient

law-suit, 377,

primitive penal law of Athens, 382.

<— — old Roman criminal jurisprudence!

382.

the Quaestiones, 382, 383.

Qusstores Parricidii, 583.

Duumviri Perduellionis, 383.

the first true Roman Criminal law,

384.
the primitive history of criminal

law, 385.
. extreme multiplicity of Roman

criminal tribunals, 390.
capricious classification of crimes,

392, 393.

- statutes of Sylla and Augustus,

393.

later law of crimes, 394.

— ^ erimina extraordinaria, 394.

-^— mode of administering criminal jus-
tice under the Roman Empire,
395.

modern history of crimes, 397.

King Alfred on criminal jurisdie-

tion quoted, 398.

Discovery, considered as a mode of ac-
quiring dominion, 248.

Dominion, its nature, limitation, and
mode of securing it, 102.

of the Romans, 317.

Dower, the principle of, engrafted on
the Customary Law uf Western Eu-
rope, 224.

Draco, rudeness of the Code of, 16.

-^— penal laws of. 367,

Dumoulin referred to, 86.

Dumont's ** Sophismes Anarchiques**
remarks, 92.

Duumviri Perduellionis, the, 383.

Edict of the Roman Prstor, 41,57,

63, 64. 66, 209, 293.
Egypt, Modern, rule of succession to

the throne of, 24t2.

D D 3

406

INDEX.

ELDOK.

Eldon, Lord, hii Chaocellonbip, 69.
Elphinstone's *< Historj of India "

quoted, 263.
Emphyteusis, system of, 299, et teq,

— rights of the Emphyteuta, 301.
Emptor FamiiisB. See FamilUe Emptor.
England, the Land-law of, at the pre-
sent time, 226.

English Common law, formerly an un-
written law, 13.

■ law, hesitation of our Courts in
declaring principles of, 40.
Equality of men, doctrine of the, 92.
-^— as understood by the Roman juris-
consults, 93.
»^ its meaning in its modem dress,
93.

ordinance of Louis Hutin quoted,

94.
^ declaration of American Indepen-

dence, 95.
I assumpdon of the Grotian school,

101.
Equity, early history of, 25.

equity considered as an agent by

which the adaptation of law to
social wants is carried on, 28.

— meaning of the term equity, 28.

■ difference between equity and legal

fictions, 28.
— — between equity and legis*

lation, 28, 29.
--— remarks on the law of nature and

equity, 44, et§eq.
— - the English Court of Chancery, 44.

origin of ^ts system, 44, 45.

the equity of Rome, 45.

origin and history of the term

•« Equity," 58.
the terms 2£quitas and *I<r^j,

58.
picture presented to the Roman

mind by the word <' Equity,'* 60.

— the English Chancellor compared

with the Roman Prastor, 65.

— exhaustion of the power of growth

in Roman Equity, 68.
— ^ features common to English and

Roman Equity, 68, et wq,
^-^ distinction between Law and

Equity in their conceptions of

proprietary right, 293.
Ethics, obligations o^ to the Roman

law, 347.
the Casuists*, 350.

FRANCE.

Ethics, Grotius and his school, 350l
Famtlia, meaning oi^ in the language of

the ancient Roman law, 208.
FamiUn Emptor, office of the, 205.
■ rights and duties of the, 206.

remarks on the expression Familiar

Emptor, 208.
Family, the, of Archaic society, 133.

disintegration of the Family, 169.

regarded as a corporation, 1 84.

organisations of elementary com-
munities, 234.
— ^ Highland chieftainship, 234.

— Families, not Indiriduals, known
- to ancient law, 258.

' Indian, Russian, Croatian, and
Sclavonisn laws respecting the
property of Families, 260 —
269.
Feudal view of the ownership of pro-
perty, 295.
Feudal services, 303.
Feudalism, its connection with territorial
sovereignty, 107.

feudUtl organisation, 107, 108.

the modern Will an accidental

fruit of, 224, 225.

Feudalism and Contract law, 365.

Fictions, legal, 21, 23.

— early history of, 23.

meaning of /ietio in old Roman

law, 25.
-— — object of the ficHones^ 26.

instances cited from the English

and Roman law, 26.
their former importance and mo-
dern uselessness, 27, 28.
difference between legal fictions
and equity, 28.

and between legal fictions and

legislation, 29.
' instances of legal fictions, 31.

Case-law and its anonwlies, 31.

Fidei-Commissa, or Bequests in Trust,

of the Roman Law, 223.
Fiefs, hereditary, gradual transformation
of Benefices into, 230.

— original tenures, 230, 231.
laws of fiefs, 365.

Foreigners, causes of immigration of,

into ancient Rome, 46, 47.
exclusion of, under the early Ro-
man republic, 48.
France, lawyers and juridical science

o^ 80, et teq.

INDEX.

407

FRANCE.

France, eflTecte of the alliance between
tbe lawyers and the kings, on the
fortunes of, 80^ 81.

difference between the Pays du

^ Droit Coutumier and the Pays
du Droit ^crit, 84.
— — pre-eminence giren in France to
Natural Law, 85.

Rousseau, 87.

the Revolution, 89.

Franks, the, referred to, 104.

— Roman institution of the Patria

Potestas not known to the, 1 43.
Freewill and Necessity, question o^

unknown to the Greeks, 304.
Furtum, or Theft, of the Roman Law,

370.

Gaius referred to, 52.
■ his description of the institution

of the Patria Potestas, 133.

— his information respecting the Per-

petual Tutelage of Women, 153.

on the duplication of proprietary

right, referred to, 295.

Galatae, the Patria PotesUs of the, 136.

Gens, or House, of the Romans com-
pared with the Village Community
of India, 264.

Gentiles, Roman, their rights in cases
of Intestate Succession, 221.

German law of Succession, 280.

Germans, Wills of the ancient, 196, 1 98.

penal laws of the, 367.

Patria Potestas of, 143.

— primitive property of, 1 98.

' the ancient law of allodial pro-
perty, 228.
" Germany" of Tacitus, its value, 120.
— — suspicions as to its Odelity, 121.

— allodial property of, 281.
Greece, aristocracies of, 10.

Greek theory of a Law of Nature, 52,

53.
Greeks, equality of laws on which they
prided themselves, 58.

their tendency to confoutid law

and fact, 75.

their notion of an inherited curse,

127.
-— - assistance afforded by, in tbe for-
mation of the Roman codes, 15.
— .- limited Patria Potestas of the^

136, 137.
metaphysics of the, 300.

HINDOOS.

Greeks, their want of capacity for pro-
ducing a philosophy of law, 354.

Grote, Mr., his •« History of Greece,**
referred to, 5, 9.

Grotius, Hugo, and his successors on
International law, 96.

■ his doctrines, 100.

success of his treatise « De Jure

Belli et Pacis,** 111.

— his theory of a Natural State and

of a system of principles con-
genial to it, 114.

— his moral philosophy and that of

his school, 350.

comparison of his system with

that of the Casuists, 351.
Guardianship, Perpetual, of Women*

under the Roman law, 153.
— ^ amongst the Hindoos, 153.
-' ■ amongst the Scandinavians, 153,

Haereditas, or Inheritance, definitioni

181.
Hanres or Heir, his rights and duties,

181, 190, 227.
Half>blood relationship, 151.'

the rule according to the customs

of Normandy, 151.
Haus-Gesetae of Germany, 232.
Heirs, rights of, under the Roman Law,

131,190,227.
Highland chieftainship hereditary, 234.

■ form of Primogeniture, 240.
Hindoo laws of Menu, 6, 17, 18.
Customary Law, 7.

law of Successioif, 280.

difference between Inheritances

and Acquisition8,281.
—' Perpetual Tutelage of Women

amongst the, 1 53.
right amongst the, to inherit a

dead man's property, 191.
•^— the Hindoo aacra, 192.

the Suttee, 193.

the place of Wills amongst the

Hindoos occupied by Adoptions,

193.

— rights of the first-bom son amongst

the, 228.

primogeniture of the Hindoos in

public office or political power,
but not in property, 233.
Hindoos, form of Ownership of Pro-
perty amongst the,— the Village Com-
munity, 260.

D D 4

408

INDEX.

JtlNDOOS.

Hindoos, Co-ownership, 261.

■ simplest form of the Village Coxn-

muDity, 262, 265.
Acquisitions of Property and In-
heritances, Hindoo distinction
between, 281 .
Hobbes, his theory of the origin of law,

114.
Homer, his account of the Cyclops

quoted, 124.
his description of an ancient law-
suit, 877.
Homeric poems, rudimentary jural
ideas afforded by the, 2, 3.

■ Themis and Themistes, 4, 5.

— Homeric words for Custom, 5.

India, heroic and aristocratic eras of the
races of, 10.

— laws of Menu, 6, 17, 18.
Customary law of, 7.

-^— stage beyond which India has not

passed, 23.
Inheritance a form of universal succes-
sion, 177.

Roman definition of an Inherit-

ance, 181.

i— old Roman law of, 189.

and Acquisition, Hindoo differ-
ences between, 281.

Injunction of the Court of Chancery, 293.

Institutes of the Roman lawyers, 35.

International law, modern confusion be-
tween it and Jus Gentium, 53.

function of the law of Nature in

giving birth to modern Interna-
tional Law, 96.

postulates forming the foundation

of International Law, 96.

Grotius and his successors, 96.

— Dominion, 102.

territorial Sovereignty, 103.

the ante-Grotian system of the

Law of Nations, 109.

< preparation of the public mindfor

the reception of the Grotian
system, 110.

success of the treatise " De Jure

Belli et Pacis," 111.

■ points of junction between modern
public law and territorial sove-
reignty, 112.

■■■ sources of the mode in case of Cap-
ture in War, 46.

Intestacy. See Succession, Intestate.

JUS NATUBiXE.

*I<r^f, the Greek principle of, 58, 61.
Italy, aristocracies of, 10.

codes of, 17.

instability of society in ancient, 47.

territorial sovereignty of the princes

of, 108.

Jews, Wills of the, 197.

Julianus, Salvlus, the Praetor, his Edict,

64.
»— - effect of his measures on the Pnc^

torian Edicts, 66.
Jurisconsults, early Roman, 37—39.

later, 41.

Natural Law of the, 76.

Jurisprudence, golden age of Roman, 55.
Jurists, Roman, period of, 66, 68.
Jus Gentium, origin of, 47, ei §eq.
• circumstances of the origin of, 50.
' how regarded by a Roman, 51.

■ and by a modern lawyer, 51.

difference between the Jus Gen-
tium and the Jus Naturale, 52,
53.

■ point of contact between the old

Jus Gentium and the Jus Na-
turale, 58.
difference between the Jus Gen-
tium and the Quiritarian law, 5 9.

— — influence of the, on modern civili-
sation, 103.

Jus Feciale, or International Law of
the Romans, 53.

Jus Naturale, or Law of Nature, 52.
■ difference between the Jus Na-
turale and the Jus Gentium,
53.

Greek conceptions of Nature and

her law, 53.

■ point of contact between the old

Jus Gentium and the Law of
Nature, 58.

modern history of the Law of

Nature, 73.

Natural law of the Roman Juris-
consults, 76.

ancient counterpart of Bentham-
ism, 79.

vastness of the influence of the

Law of Nature on modem so-
ciety, 80.

— history of the Law of Nature, 80,
tt Beg.

pre-eminence given to Natural

law in France^ 85.

INDEX.

40S>

JUS NATURALE.

Jus N«turale, its condition at the mid-
dle of the 18th century, 86.

Rousseau, 87.

the French Revolution, 89.

equality of men, 92.

function of the law of Nature in

giving birth to modern Interna-
tional Law, 96.

sources of the Modern Interna-

national Law of Capture in

War, 246.
Justinian's *< Institutes*' quoted, 46.
--— referred to, 57.

" Pandecte " of, 67.

" Corpus Juris Civilis " of, 68.

his modifications of the Patria

Potestas, 14S.
his scale of Intestate Succession,

219.

Kings, origin of the doctrine of the

divine right of, 346.
Kingship, heroic, origin of, 9.

Lacedaemonian kings, authority of the,

10.
Land-law of England at the present day,

226.
Land and goods, English disiinction

between, 283.
Latifundia, Roman, mode of cultivating

the, 299.
Law, social necessities and opinions
always in advance of, 24.

agencies by which law is brought

into harmony with society, 25.

ancient, 113.

theories of a natural state and of a

system congenial to it, 113.

Grotius, Blackstone, Locke, and

Hobbes,114.

theory of Montesquieu, 115.

Bentham, 117.

dissatisfaction with existing theo-
ries, 118.
^— proper mode of inquiry, 119.

the Patriarchal theory, 1 22.

fiction of Adoption, ISO.

the archaic Family, 133.

the Pairia Potestas of the Ro-
mans, 133.
■ agnatic and cognatic relationships,
146.

Guardianship of Women, 153.

MORTGAGOn.

Law, ancient Roman Marriage, 1 54.

Master and Slave, 162.

Leges Barbarorum, 297.
Leges Corneliae of Sylla, 41, 42.
Leges Juliae of Augustus, 41, 42.
Legis Actio Sacrament! of the Romans

described, 375.
Legislation, era o^ 25.

considered as an agent by which

the adaptation of law to the
social wints is carried on, 29.

difference between it and legal

fictions, 28, 29.
Lex Calpumia de Repetundis, the first

true Roman Criminal Law, 384.
Lex PUetoria, purport of the, 161.
Lidi of the Germans, 231.
Local Contiguity as the condition of com«

munity in political functions, 1 32.
Locke, John, referred to, 87.

his theory of the origin of law,

114.
Lombards, referred to, 114.
Louis Hutin, King of France, his ordi-
nance quoted, 94.

Mahometan Law of Succession, 242.
Majority and Minority, meaning of the

terms in Roman Law, 162.
Mancipation, Roman, 50, 204, 278,

317.
mode of giving the effect of Man-
cipation to a Tradition, 279.
Manus of the Romans, 317.
Marriagre, ancient Roman, 1 54.

later Roman, 155.

Master and Slave, 1 62.

" under the Romans, 163.

in the United States, 163.

Menu, Hindoo laws of, 6, 17, 18.
Merovingian kings of the Franks, 104.
Metayers, the, of the south of Europe,

301.

*< Moniteur," the, during the period of
the French Revolution, 92.

Montesquieu's " Esprit des Lois," re-
marks on, 86.

- his Theory of Jurisprudence, 115.

Apologue of Montesquieu con-

cerning the Troglodytes, in the
** Lettres Persanes." 311.
Moral doctrines, early, 127.
Mortgagor, special proprietorsliip cre-
ated by the Court of Chancery for the.
294.

410

INDEX.

MOSES.

Moses, testamentary power not provided
for by the Laws o( 197.

Naples, territorial sovereignty of the
monarchs ot, 108.

Nations, Law of, 96, et uq. See Inter-
national law and Jus Gentium.

Nature and ber law, Greek conceptions
of, 53.

Ntxvm, of the ancient Romans, 48, 315.

changes in the, 518.

Normandy, customs of, referred to, 151.
N^/nos, the word not known to the Ho-
meric poems, 5.

Nuncupatio, of the Romans, 205.

Obligations of the Roman law, 323.

rights and duties of, 324.

Occupatio, or Occupancy, of the Roman

Law, a ** natural mode of acquiring

property," 245, 25a
— ^ things which never had an owner,

245.
things which have not an owner,24 5.

- Capture in war, 246.
— ^ Discovery, 248.

»-~ objections to the popular theory

of Occupancy, 256.
Ordinance of Louis Hutin quoted, 94.
Orphans, Guardianship of male, under
the Roman law, 160.

Pactes de FamtUe of France, 232.
Pascal, his ** Lettres Provinciales,** 352.
Paterfamilias in elementary communi-
ties, 234, 235.
Patria Potestas, the, of the Romans, 133.

of the Galatae, 136.

of the Greeks, 136, 137.

causes which helped to mitigate

the stringency of the father's
power over the persons of his
children, 141.

liabilities of the Paterfamilias, 145.

unity of person between the Paterfa-

milias and the Filius&milias, 1 45.

rights and duties of the Paterfami-

lias, 145, 146,234,235.

- the Patria Potestas not a durable

institution, 146.
Patriarchal theory of primeval jurispru-
dence, 122.

- chief points from Scriptural ac-

counts, 123.
Homer's account of the Cyclops, 124.

PRIH0GE3IITUftB.

Pays du Droit fecrit and Paysdu Droit
Coutuuiier, difference between the
84.

Peculium, the, of the Romans, 142.

Castrense Peculium, 142.

Quasi-castrense Peculium, 142.

Penal law in ancient codes, 867.

Perjury, how punished by the ancient
Romans, 893.

Persian monarchy, heroic and aristocra-
tic eras of the races composing the,
11.

Persiant, the ancient, their veracity,
308.

^iMTif of the Greeks, meaning of the;,
53.

Plebeian Wills of the Roman;, 201.

legalised by at the Twelve Tables,

202.

their influence on the civEisation

of the modern world, 203.

Political ideas, early, 128.

— foundation of aristocracies, 1 32.
Political Economy and Contract, 305.
Polygamy, its influence on Primogeni-
ture, 243.

Possessory interdicts of the Roman law,
291.

Prastor, origin of the oflice of, 62.

Edict of the, 41, 57, 63, 66.

the Roman, compared with au En-
glish Chancellor, 64, 65.

^— restraints on the Praetor, 65.

the Praetor the chief equity judge

as well as the great common law
magistrate, 67.

Prffitor Peregrinus, oflSce of the, 63.

Praetorian Edict of the Romans, 41, 57,
65, 66.

the Edictum Perpetuum, 63.

that of Sttlvius Julianus, 64, 66.

— remedies given by the, 293.
Praetorian Will, the, 209.

described, 210.

Prescription of Property, history of,
284, ttKq.

Primogeniture, changes in Law of Suc-
cession, caused by, 225.

almost destroyed by the authors of

the French code, 225, 226.

results of the French system, 226.

rights of the first-born son amongst

the Hindoos, 228.

early history of Primogeniture, 229.

Benefices, 2i?9.

INDEX.

411

PRIMOGENITUBE.

Primogeniture, gradual transformation
of Benefices into hereditary Fiefs,
SSO.

— the Paotes de Famille of France

and the Uaus-Gesetze of Ger-
many, 232.

■ causes of the diffusion of Primo-

geniture, 232.

— Primogeniture in public offices or

political pover amongst the
Hindoos, but not in prpperty,
233.

■ ancient forms of Primogeniture,

235.

— vhy did Primogeniture gradually

supersede every other principle
of Succession ? 235.

earlier and later Primogeniture,

257.

Hindoo rule of the eldest son and

of the eldest line also, 239.

Celtic form of Primogeniture, 240.

Mahometan form, 242.

influence of polygamy on Primo-
geniture, 243.

Progress, causes of the arrest of, of the
greater part of mankind, 77.

Property, early history of, 244.

^-^*' natural modes" of acquisition,
244.

— — Occupancy, 245.

Capture in War, 246.

' rule of Discovery, 248.

— ^ history of the origin of property,
250.

Blackstone on the theory of Occu-
pancy as the origin of property,
251.

■■ aphorism of Savigny on the origin
of property, 254.

objections to the popular theory of

Occupancy, 256.

Co-ownership amongst tbeHindoos,

260.

the Gens, or House, of the Ro^

mans compared with the Village
Community of India, 264.

Russian village co-ownership, 266.

Croatian and Sclavonian Laws re-
specting the property of Fami-
lies, 269.

I ancient difficulties of Alienation,
271.

— ^- natural classification of property,
273.

QU2ESTI0NES PERPETUiE.

Property, ancient modes of transfer of
property, 276.

— definition of the Res Maneipi,

277.
— »- tradition of property, 578.
distinction between Res Maneipi

and Res nee Maneipi, 279.
*'— Hindoo law of Inheritances and

Acquisitions, 281, 282.

— law of moveables and law of land,

according to the French Codes,
283.

and in England, 283.

Usucapion, or Prescription, 284.

■ C^ssio in Jure, or recovery, in a

Court of Law, of property
sought to be conveyed, 289.

— » influence of Courts of T^aw and of
their procedure opon Property,
290.

distinction between Property and

Possession, 290.

and between Law and Equity in

their conceptions of proprietary
right, under the Roman and
English Law, 293.

feudal view of Ownership, 295.

" Roman and barbarian law of Own-
ership, 296.

Romiu) system of Tenancy, 299.

the Coloni of the Romans and the

Metayers of the South of Eu-
rope, 300, 301.

rights of the Emphyteuta, 301.

the Agri Limitrophi of the Rhine

and the Danube, 302.

Proscriptions, Roman, origin of the,
389.

Pupilage or Wardship in modem juris-
prudence, 162.

-^-» compared with the Guardianship
of Orphans under the Roman
Law, 162.

Quasi- Contract, 343.

meaning of, in Roman law, 344.

Quasi, meaning of the word, in Roman
law, 344w

QusBstores Parricidii of the ancient Ro-
mans, 383.

Qusestiones Perpetuse of the Romans,
384.

theory of the Qusstiones, 386.

results traceable to the Quapstiones,

391.

412

DTOEX.

QUERELA INOFFICIOSI.

Querela Inoffictoai Testamenti of the

old Roman law, 215.
Quiritarian Liaw, the, 48.
. principles of the, 59.

difference between it and the Jus

Gentium, 59.

Recoveries, collusive, of property in the
Roman and English Law, 289.

Regency, form of, according to the
French custom regulating the suc-
cession to the throne, 240.

Reipus, the, of Germany, 281.

Res Manclpi and Res nee Mancipi, 274,
279.

definition of the Res Mancipi,

277.

Res nulHus of the Roman Law, 246.

Responsa Prudentium of the Romans,
described, 33.

— ^ similarity between them and Eng-
lish Case-law, 33.

■ decline and extinction of the Re-

sponses, 40, 41.
Revolution, French, effects of the theory

of the state of Nalure on the, 91.
Rex Sacrorum, or Rex Sacrificulus, office

of the, 10, 62.
Roman law, 1.

the Twelve Tables, 1, 2, 14, 33.

— — influence of the taera on the law
of Adoption and of Wills, 6« 7.

■ class of codes to which the Roman

code belongs, 15.

■ probable assistance afforded by

Greeks, 15.
. meaning of Jtciio^ 25.

— instances of Ji(Aione$ cited, 26.

■ the Responsa Prudentium de-

scribed, 33.
' judicial functions of the liTagis*
trates of Republican Rome, 36.

reasons why the Roman law was

not popularised, 36.

sources of the characteristic excel-
lence of the Roman law, 38.

■ decline and extinction of the Re-

sponses, 40, 41.
the Praetorian Edict, 4 1 , 57, 63, 66,

— the Leges Cornelias, 41, 42.
— ^ later jurisconsults, 4 1 .

remarks on the Statute Law of the

Romans, 41—43.
•— ^ and on the Equity of the Romans,

44, 45.

ItOHAN LAW.

Roman law, golden age of Roman
jurisprudence, 55.

Roman Equity, 58, 67.

features common to both English

and Roman Equity, 68, ef neq.

International law largely indebted

to Roman law, 97.

the Patria Potestas of the Roman

law, 137, et teq*

Agnatic and Cognatic Relation-
ship, 146.

Perpetual TutelageofWomen,l 53.

Roman Marriage, 154, 155.

Guardianship of male Orphans, 1 60.

Law ofPersoos,— Master and Slavey

162.

— Testamentary Law, 172, ef seq.

— Wills anciently executed in the Co-

mitia Calata, 199, 201.

— — ancient Roman law of Intestate
Succession, 199.
■ Roman Wills described, 201.

the Mancipation, 204.

the Nuncupatio, 205.

the Prstorian Will, 209.

first appearance of Sealing in the

history of jurisprudence as a
mode of authentication, 210.

Querela Inofficioei Testamenti ,2 1 5.

Disinherison of Children under,

215.

Intestate Succession under, 218.

Fidei-Commissa, or bequests in

trust, 223.

rights of Co-heirs, '227.

■ Occupancy, 245.

Roman distinction between the

Law of Persons and the Law of
Things, 258.

influence of Roman classifications,

259.

Co-ownership of property regarded

by the mature Roman law as
exceptional and momentary,
261.

^-^ the Gens of the Romans compared
with an Indian Village Commu-
nity, 264.

— Res Mancipi, and Res nee Man-
cipi, 274, 277.

Mancipation, 278.

Usucapion, or Prescription, 284.

the Cessio in Jure, 289.

' distinction between Property and
Possession^ 290.

INDEX.

413

EOK AN LAW.

Roman law, Roman and barbarian law,
296.

• Roman Contracts, 314, «^ »eq,

the Four Contracts, 325.

^— — connection between Tlieology and
Roman law, 355.

causes of improvement in Roman

law, 361.

Roman law in the Eastern Em-
pire, 363.

— ^ Civil Wrongs of the Roman law, '
370.

the Legis Actio Sacramenti, 375.

old Roman Criminal Jurispru-
dence, 382.

extreme multiplicity of Roman

criminal tribunals, 390.

•^— results traceable to the Quaes-
tiones, 391.

Romans causes of the rapid progress of
the Stoical philosophy amongst the, 55.

their progress in legal improve-
ment, 57.

Rome, immigration of foreigners into,
46, 47.

exclusion of, under the early Re-
public, 46.

' See of, origin of the tendency to

attribute secular superiority to
the, 108.

^— decline of ecclesiastical influence
in international questions, 110.

early political ideas of, 130.

Rousseau, J. J., influence of his writ-
ings, 87.

his doctrine of an original Social

Compact, 308, 309.

Russian villages. Co-ownership of the
occupiers of, 266.

Sacra, or Family Rites, of the Romans,
6,7,27, 191, 192.

of the Hindoos, 192.

Sacramental Action of the ancient Ro-
mans, 48.

Salic law, origin of the, 157.

Savigny, on Possession and Property,
290, 291.

his aphorism on the origin of

property, 254.

Scaevola, Q. Mucins, his Manual of the
Civil Law, 40, 41.

Scandinavian nations, their laws respect-
ing the Perpetual Tutelage of Wo-
men, 153, 159.

SOVEREIGN.

Sclavonian laws respecting the property
of families, 268.

Sealing, first appearance of, in jurispru-
dence, as a mode of authentication,
210.

Sin, mortal and venial, casuistical dis-
tinction between, 351.

Sins known to primitive jurisprudence,
371.

Slavery, ancient, 162.

- under the Romans, 163.

in the United States of America,

163.
Socage, English law of, 232.
Social Compact, Rousseau's doctrine of
an original, 308, 309, 345.

Dr. Whewell quoted, 347.

Societies, stationary and progressive , 22.
■ difference between stationary and

progressive societies, 23.
■ agencies by which Law is brought

into harmony with Progressive

Societies, 25.

perils of early, 75.

primitive, 1 20.

early moral doctrines, 127.

early political ideas, 128.

fiction of Adoption, 130.

foundation of Aristocracies, 132.

principle of Local ConUguity, 1 32,

the ancient Family, 153.

the Patria Potestas, 133.

agnatic and cognatic relationsliips,

146.

Guardianship of Women, 1 53.

ancient Roman Marriage, 154.

Master and Slave, 162.

- uniformity of movement of the

progressive societies, 168.

disintegration of the Family, 169.

■ movement of societies from status
to contract, 1 70.

Universal Succession, 1 77, 1 79, 181.

primitive society and universal

succession, 183.

-— - the ancient family a corporation,! 84.

Society in primitive times not a collec-
tion of individuals, but an aggregation
of families, 126.

Solon, Attic code of, 16.

** Sophismes Anarchiques " of Dumont,
remarks on, 92.

Sovereign, origin of the doctrine that
the monarch is the fountain of justice,
396.

414

INDEX.

SOVEREIGNTY.

Sovereignty, territorial, propodtion of

International Law on, 109, 103.
^— Tribe-soyereignty, 104.
— ^- Charlemagne and uniyeiaal domi-
nion, 106.

— Territorial sovereignty an oflEbhooC

of feudalism, 107.

the See of Rome, 108.

Hugh Capet, 108.

— the Anglo-Saxon princes, 108.

• Naples, Spain, and Italy, 108.

Venice, 109.

— points of junction between terri-

torial sovereignty and modern
publiclaw, 112.

Spain, territorial sovereignty of the mo-
narchs of, 106.

Status, movement of sooieties from, to
contract, 170.

Statute law of the Romans, 41, 45.

Stoic philosophy, principles of the, 54.

— ^ its rapid progress in Roman so-
ciety, 55.

alliance of the Roman lawyers with

the Stoics, 55.

Succession, rules of, according to the
Hindoo customary law, 7.

— ~~ Testamentary, 171.

— early history, 171.

*— influence of the Church in enforc-
ing the sanctity of Wills, 173.

English law of, 173.

— — «- qualities necessarily attached to
Wills, 174.

natural right of testation, 175.

restraints imposed by the Code

Napoleon, 176.

nature of a Will, 177.

rights and duties of universal suc-
cessor, 177.

— usual Roman definition of an In-

heritance, 181.

difference between modern testa-
mentary jurisprudence and the
ancient law of Rome, 182.

■ the Family regarded as a Corpora-
tion, 184.

old Roman law of Inheritance

and its notion of a Will, 189.

ancient objects of Wills, 190.

Saenif or Family Rites, of the

Romans, 191.

and of the Hindoos, 191» 192.

the invention of Wills due to Ro*

mans, 194.

SUCCESSION.

SueeeMion, Roman ideas of SuccessioD»

195.
Testamentary Succession less an*

cientthan Intestate Succession,

195.
primitive operation of Wills, 196.

— Wills of the ancient Germans, 196.

Jewish and Bengalee Wills, 197.

mode of execution of ancient Ro-

num wills, 199.
"—> description of ancient Roman Wills^

201.
~— influence of ancient Plebeian Wills

on the civilisation of the modem

world, 203.
the Mancipation, 204.

— relation of Wills to conveyances.

204.
the TesUment per met Hbram, 204,

213, 214.
consequence of this relation of Tes-
taments to conveyances, 206.

remedies, 207.

ancient Wills not written, 207.

remarks on the expression Emptor

Familis, 208.

the Prajtorian Will, 209.

->^ the Bonorum Possessio and the

Bonorum Possessor, 211.
improvements in the old Will, 212,

213.
— — ancient and modem ideas respect-
ing Wills and successors, 2 1 5.

Disinherison of Children, 215.

the age of Wills coeval with that

of feudalism, 224.
introduction of the prinaple of

Dower, 224.
rights of Heirs and Co-heirs under

the Roman law, 227.

Intestate, 195.

ancient Roman law of, 199,

218.
the Justinianean scale of Intestate

Succession, 219.
order of Intestate Succession among

the Romans, 220.
horror of intestacy f^t by the

Romans, 222, 223.
rights of all the children of the

deceased under the Roman law,

227.

Universal, 177, 189.

-*-» in what it consists, 179.
-«- the universal successor, 181 «

INDEX.

415

SUCCESSION.

Succession, formula of old Roman in-
vestiture referred to» 190.

Suttee of the Hindoos, 193*

Sylla, L. Cornelius, his improvements in
the Roman law, 41, 42.

Tables, the Twelve Decemviral, 1, 2»
14, 33.

collections of opinions interpreta-
tive of the, 83.

their legalisation of Plebeian Wills,

202.

Law of the Twelve Tables re-
specting Testamentary Disposi-
tions, 216.

Tablets, laws engraven on, 1 4.

Tacitus, value of his " Germany ** as a
record of primitive history, 120.

suspicions as to its fidelity, 121.

Tarquins, change in the administration
of the law after the expulsion of the,
61, 62.

Tenancy, Roman system of, 299.

Testaments. See Succession, Testamen-
tary.

Theft, ancient Roman law of, 307, 37 8>
379.

-^-» modern breaches of trust, 307.

Themis and Themistes of the Greek
Homeric poems, 4, 5, 125.

Theology, connection between it and
Roman law, 355.

Tliiity Years* War, influence of the hor-
rors of the, on the success of the
treatise •< De Jure Belli et Pads'* of
Grotius, 111.

Torts, law of, 370.

Tradition of property amongst the Ro-
mans, 278.

^— — practical effect of a Mancipation
given to a Tradition, 278.

Transfer of property, ancient modes of,
276.

Troglodytes, the, 311.

Turkey, rule of succession to the throne
of, 242.

Ulpian, his attempt to distinguish be-
tween the Jus Naturale and the Jus
Gentium, 52.

ZEUS.

(Jniversitas juris, in what it consists,

178.
Usucapion, principle of Roman law

known as, 212.

history of, 284.

Usus, or lower form of civil marriage of
the ancient Ronoans, 154.

Vandals, the, referred to, 104.

Venetians, their lapse from tribe sove-
reignty to territorial sovereignty, 109.

Village Communities of India, 260, 262,
et Meg,

Visigoths, the, referred to, 104.

Voltaire, referred to, 87. .

Warfare, ancient forms of, 247.

Wehrgeld, the, of Germany, 281.

Whewell, Dr., on original Social Com-
pact, quoted, 347.

his view of Moral Philosophy, 348.

Widow's share of her husband's estate,
224.

the reipus, or fine leviable on the

remarriage of a widow in Ger-
many, 281.

Wills, influence of ihe Sacra GeMtilieia on
the law of, 6, 7.

See Succession, Testamentary.

Women, laws respecting the status of
152.

Roman law of the Perpetual Tu-
telage of, 1 53.

-*-» amongst the Hindoos, 158.

^^ and amongst the Scandinavians,
155.

— Guardianship of Women under

the Roman law, 153.
tutelage o^ amongst the Hindoos,

153.
tutelage of, amongst the Scandina-'

vians, 153.

ancient Roman Marriage, 154.

later Roman marriage, 155.

-^-» special Proprietorship created by

the Court of Chancery for, 295.

Zeus, not a lawmaker, but a judge,
•4, 5.

THE END.

LONDOir

PRINTED BT 8P0TTI8W00DB AND CO.

NBW-STRBBT SQUARE

DATE DUE

■vfe^^rN

m^

m^

I

^

B

^

^ft

^H

1

1

^

i ~\

iiiPEi»»i

"-•-:^i^''v^pfei^r!':^:-^^£^^