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INTERNATIONAL CONGRESS
OF ARTS AND SCIENCE

CROMWELL'S VISIT TO MILTON

Hand-painted Photogravure from the Painting by David Neal

Cromwell was the antithesis in nature to the poet Milton, but opposite as
they were in character the genius of the latter appealed so powerfully to the
iron-hearted Protector that he not only paid a visit to the poet in his humble
quarters, but gave him the post of secretary.

Mr. Neal has richly perpetuated that memorable visit by a famous painting,
•which is a veritable jewel set in the finest frame that imagination is
able to design, a picture so speaking and beautiful that description, however
eloquent, would detract rather than embellish or interpret.

INTERNATIONAL CONGRESS

OF

ARTS AND SCIENCE

EDITED BY

HOWARD J. ROGERS, A.M., LL.D,

DIRECTOR OF CONGRESSES

VOLUME III
HISTORY AND LAW

COMPRISING

Lectures on the History of Greece, Rome and Asia,

Medieval History, Modern History, History

of America, History of General

Law, Common Law and

Roman Law

UNIVERSITY ALLIANCE

LONDON NEW YORK

COPYRIGHT 1906 BY HOOGHTON, MIFFLIN & Co.

ALL RIGHTS RESERVED
COPYRIGHT 1908 BY UNIVERSITY ALLIANCE

ILLUSTRATIONS

VOLUME III

FACING
PAGE

CROMWELL'S VISIT To MILTON Frontispiece

Photogravure from the painting by DAVID NEAL

DR. WOODROW WILSON 1

Photogravure from a photograph

PORTRAIT GROUP OF DR. EDWARD GAYLORD BOURNE, DR. CHARLES W.

COLBY, HON. JAMES B. PERKINS AND DR. JOHN B. BURY . . 138
Photogravure from a photograph

ARGUMENT IN THE COURT OF APPEALS 328

Photogravure from the painting by P. SALZEDO

TABLE OF CONTENTS

VOLUME III

POLITICAL AND ECONOMIC HISTORY

INTRODUCTORY ADDRESS.

The Variety and Unity of History ...... 3

BY PRESIDENT WOODROW WILSON, LL.D.

The Science of History in the Nineteenth Century . . . .23
BY PROF. WILLIAM MILLIGAN SLOANE, LL.D.

The Conception and Methods of History ..... 40

BY PROF. JAMES HARVEY ROBINSON, Ph.D.

HISTORY OF GREECE, ROME, AND ASIA.

The Expansion of Greek History ....... 56

BY PROF. PENTLAND MAHAFFY, D.D.

Problems in Roman History ....... 69

BY PROF. ETTORE PAIS, LL.D.

A General Survey of the History of Asia, with Special Reference to

China and the Far East ........ 86

BY PROF. HENRI CORDIER, Litt.D.

MEDIEVAL HISTORY.

Historical Development and Present Character of the Science of History 111
BY PROF. KARL GOTTHART LAMPRECHT, Ph.D.

The Present Problems of Medieval History . . . . . 125
BY PROF. GEORGE BURTON ADAMS, Litt.D.

MODERN HISTORY OF EUROPE.

The Place of Modern History in the Perspective of Knowledge . . 142
BY PROF. JOHN B. BURY, LL.D.

Historical Synthesis ......... 153

BY PROF. CHARLES W. COLBY, Ph.D.

HISTORY OF AMERICA.

Tlie Relation of American History to Other Fields of Historical Study 172
BY PROF. EDWARD GAYLORD BOURNE, Ph.D.

TABLE OF CONTENTS

Problems in American History . . . ... . . 183

BY PROP. FREDERICK JACKSON TURNER, Ph.D.

HISTORY OF ECONOMIC INSTITUTIONS.

Economic History in Relation to Kindred Sciences .... 199
BY PROF. JOHANNES EVAST CONRAD, Ph.D.

The Present Problems in the Economic Interpretation of History . 215
BY PROF. SIMON NELSON PATTEN, Ph.D.

Bibliography: Department of History ...... 229

HISTORY OF LAW

History of General Law ........ 241

BY HON. EMLIN MCCLAIN, LL.D.

Characteristics of the Common Law ...... 271

BY PROF. NATHAN ABBOTT, LL.B.

HISTORY OF EOMAN LAW.

The Relations of Roman Law to the Other Historical Sciences . . 291
BY WILLIAM HEPBURN BUCKLER, LL.B.

Problems of Roman Legal History . . . . . .315

BY PROF. MUNROE SMITH, J.U.D.

HISTORY OF COMMON LAW.

The History of the Common Law ....... 331

BY HON. SIMEON EBEN BALDWIN, LL.D.

The Problems of To-day for the History of the Common Laiv . . 350
BY PROF. JOHN HENRY WIGMORE, LL.B.

WOODROW WILSON, Ph.D., LL.D.

President of Princeton Vniversity

DIVISION B
HISTORICAL SCIENCE

DIVISION B — HISTORICAL SCIENCE

(Hall 3, September 20, 10 a. m.)

THE VARIETY AND UNITY OF HISTORY

BY WOODROW WILSON

[Woodrow Wilson, President of Princeton University, b. Staunton, Virginia,
December 28, 1856. A.B. Princeton University, 1879; A.M. 1882. Ph.D.
Johns Hopkins, 1886. Litt.D. Yale, 1901. LL.D. Wake Forest College, 1887;
Tulane University, 1897; Johns Hopkins, 1901; Rutgers College, 1902; Uni-
versity of Pennsylvania, 1903; Brown University, 1903. Post-graduate, Uni-
versity of Virginia and Johns Hopkins University. Associate Professor History
and Political Economy, Bryn Mawr College, 1885-88. Professor History and
Political Economy, Wesleyan University, 1888-90. Professor Jurisprudence
and Politics, Princeton University, since 1890. Member American Institute of
Arts and Letters, American Historical Association, American Economic Asso-
ciation, American Academy Political and Social Science, American Philosophi-
cal Society, Southern History Association. Corresponding Member Massachu-
setts Historical Society. Author of Congressional Government; An Old Master
and Other Essays; George Washington; A History of the American People.]

WE have seen the dawn and the early morning hours of a new age
in the writing of history, and the morning is now broadening about
us into day. When the day is full we shall see that minute research
and broad synthesis are not hostile but friendly methods, cooperating
toward a common end which neither can reach alone. No piece of
history is true when set apart to itself, divorced and isolated. It is
part of an intricately various whole, and must needs be put in its
place in the netted scheme of events to receive its true color and
estimation; and yet it must be itself individually studied and con-
trived if the whole is not to be weakened by its imperfection. Whole
and part are of one warp and woof. I think that we are in a temper
to realize this now, and to come to happy terms of harmony with
regard to the principles and the objects which we shall hold most
dear in the pursuit of our several tasks.

I know that in some quarters there is still a fundamental difference
of opinion as to the aim and object of historical writing. Some regard
history as a mere record of experience, a huge memorandum of events,
of the things done, attempted, or neglected in bringing the world to
the present stage and posture of its affairs, — a book of precedents
to which to turn for instruction, correction, and reproof. Others
regard it as a book of interpretation, rather, in which to study motive
and the methods of the human spirit, the ideals that elevate and the
ideals that debase; from which we are to derive assistance, not so
much in action as in thought; a record of evolution, in which we
are not likely to find repetitions, and in reading which our inquiry
should be of processes, not of precedents. The two views are not,

4 HISTORICAL SCIENCE

\

upon analysis, so far apart as they at first appear to be. I think that
we shall all agree, upon reflection and after a little explanation of
the terms we use, that what we seek in history is the manifestation
and development of the human spirit, whether we seek it in precedents
or in processes.

All of the many ways of writing history may be reduced to two.
There are those who write history, as there are those who read it,
only for the sake of the story. Their study is of plot, their narrative
goes by ordered sequence and seeks the dramatic order of events;
men appear, in their view, always in organized society, under leaders
and subject to common forces making this way or that; details are
for the intensification of the impression made by the main move-
ment in mass; there is the unity and the epic progress of The Decline
and Fall, or the crowded but always ordered composition of one of
Macaulay's canvases; cause and effect move obvious and majestic
upon the page, and the story is of the large force of nations. This is
history embodied in "events," centering in the large transactions
of epochs or of peoples. It is history in one kind, upon which there
are many variants. History in the other kind devotes itself to analy-
sis, to interpretation, to the illumination of the transactions of which
it treats by lights let in from every side. It has its own standard of
measurement in reckoning transactions great or small, bases its
assessments, not upon the numbers involved or the noise and reputa-
tion of the day itself in which they occurred, so much as upon their
intrinsic significance, seen now in after days, as an index of what the
obscure men of the mass thought and endured, indications of the
forces making and to be made, the intimate biography of daily
thought. Here interest centres, not so much in what happened as in
what underlay the happening; not so much in the tides as in the
silent forces that lifted them. Economic history is of this quality,
and the history of religious belief, and the history of literature, where
it traces the map of opinion, whether in an age of certainty or in an
age of doubt and change.

The interest of history in both kinds is essentially the same. Each
in its kind is a record of the human spirit. In one sort we seek that
spirit manifested in action, where effort is organized upon the great
scale and leadership displayed. It stirs our pulses to be made aware
of the mighty forces, whether of exaltation or of passion, that play
through what men have done. In the other sort of history we seek
the spirit of man manifested in conception, in the quiet tides of
thought and emotion making up the minor bays and inlets of our
various life of complex circumstance, in the private accumulation of
events which lie far away from the sound of drum or trumpet and
constitute no part of the pomp of great affairs. The interest of human
history is that it is human. It is a tale that moves and quickens us.

THE VARIETY AND UNITY OF HISTORY 5

We do not approach it as we approach the story of nature. The
records of geology, stupendous and venerable as they are, written
large and small, with infinite variety, upon the faces of great moun-
tains and of shadowed canons or in the fine shale of the valley ,
buried deep in the frame of the globe or lying upon the surface, do
not hold us to the same vivid attention. Human history has no such
muniment towers, no such deep and ancient secrets, no such mighty
successions of events as those which the geologist explores; but the
geologist does not stir us as the narrator of even the most humble
dealings of our fellow men can stir us. And it is so with the rest of
the history of nature. Even the development of animal life, though
we deem its evolution part of ours, seems remote, impersonal, no
part of any affair that we can touch with controlling impulse or
fashion to our pleasure. It is the things which we determine which
most deeply concern us, our voluntary life and action, the release of
our spirits in thought and act. If the philosophers were to convince
us that there is in fact no will of our own in any matter, our interest
in the history of mankind would slacken and utterly change its face.
The ordered sequences of nature are outside of us, foreign to our
wills, but these things of our own touch us nearly.

It is the honorable distinction of historical writing in our day
that it has become more broadly and intimately human. The instinct
of the time is social rather than political. We would know not merely
how law and government proceed but also how society breeds its
forces, how these play upon the individual, and how the individual
affects them. Law and government are but one expression of the
life of society. They are regulative rather than generative, and his-
torians of our day have felt that in writing political and legal history
they were upon the surface only, not at the heart of affairs. The
minute studies of the specialist have been brought about, not merely
by the natural exigencies of the German seminar method of instruc-
tion, not merely by the fact that the rising tide of doctors' theses
has driven wrould-be candidates for degrees to the high and dry
places, after all the rich lowland had been covered, but also by a very
profound and genuine change of view on the part of the masters of
history themselves with regard to what should be the distinctive
material of their study. Before our modern day of specialization
there was virtually no history of religion, or of law, or of literature, or
of language, or of art. Fragments of these things were, of course,
caught in the web of the old narratives, but the great writers of the
older order looked at them with attention only when they emerged,
gross and obvious, upon the surface of affairs. Law was part of the
movement of politics or of the patent economic forces that lay near
the interests of government. Religion was not individual belief, but
as it were the politics of an institution, of the church, which was but

6 HISTORICAL SCIENCE

the state itself in another guise. Literature concerned them only as
it became the wind of opinion beating upon the laboring ship of
state, or when some sudden burst of song gave a touch of imaginative
glory to the domestic annals of the nation which was their theme.
Art came within their view only when it was part of the public work
of some Pericles or became itself part of the intricate web of politics,
as in the Italian states of the Renaissance. Language concerned
them not at all, except as its phrases once and again spoke the tem-
per of an epoch or its greater variations betokened the birth of
new nations.

And all this because their interest was in affairs of state, in the
organized and coordinated efforts of the body politic, in opinions
and influences which moved men in the mass and governed the actions
of kings and their ministers of state at home and abroad. In brief,
their interest was in " events." It is curious and instructive to examine
what we mean by that much-used word. We mean always, I take it,
some occurrence of large circumstance, — no private affair transacted
in a corner, but something observed and open to the public view,
noticeable and known, — and not fortuitous, either, but planned,
concerted. There can, properly speaking, be no " event " without
organized effort: it is not a thing of the individual. Literature is
excluded, by definition, and art, and language, and much of religion
that is grounded in unobserved belief, and all the obscure pressure
of economic want. A history of "events " cannot be a history of the
people; it can only be a history of the life of the body politic, of
the things which statesmen observe and act upon.

The specialist has taught us that the deepest things are often those
which never spring to light in events, and that the breeding-ground
of events themselves lies where the historian of the state seldom
extends his explorations. It is not true that a community is merely
the aggregate of those who compose it. The parts are so disposed
among us that the minority governs more often than the majority.
But influence and mastery are subtle things. They proceed from
forces which come to the individual out of the very air he breathes:
his life is compounded as the lives of those about him are. Their lives
play upon his, he knows not how, and the opinion he enforces upon
them is already more than half their own. And so the analysis of the
life of the many becomes part of the analysis of the power of the few
- an indispensable part. It is this that the specialist sees. He sees
more. He sees that individual effort as well as aggregate must be
studied, the force that is in the man as well as the air that is in the
community. The men who give voice to their age are witnesses to
more things than they wot of.

Mr. Ruskin, in the preface to the little volume on Venetian art
to which he has given the name St. Mark's Rest, propounds a theory

THE VARIETY AND UNITY OF HISTORY 7

which will illuminate my meaning. "Great nations/' he says, "write
their autobiographies in three manuscripts, — the book of their
deeds, the book of their words, and the book of their art. Not one of
these books can be understood unless we read the two others; but
of the three the only quite trustworthy one is the last. The acts of a
nation may be triumphant by its good fortune; and its words mighty
by the genius of a few of its children; but its art only by the general
gifts and common sympathies of the race. Again, the policy of a
nation may be compelled, and, therefore, not indicative of its true
character. Its words may be false, while yet the race remains uncon-
scious of their falsehood; and no historian can assuredly detect the
hypocrisy. But art is always instinctive; and the honesty or pre-
tense of it are therefore open to the day. The Delphic oracle may
or may not have been spoken by an honest priestess, — we cannot
tell by the words of it; a liar may rationally believe them a lie, such
as he would himself have spoken; and a true man, with equal reason,
may believe them spoken in truth. But there is no question possible
in art: at a glance (when we have learned to read), we know the
religion of Angelico to be sincere, and of Titian, assumed."

Whether we agree with all the dicta of this interesting passage
or not, the main truth of it is plain. It is to be doubted whether the
"genius of a few of its children" suffices to give a nation place in
the great annals of literature, and literary critics would doubtless
maintain that the book of a nation's words is as nai'f and instinctive
as the book of its art. Here, too, the sincere and natural is easily
to be distinguished ("when we have learned to read") from the
sophisticated and the artificial. Plainly the autobiography of Ben-
jamin Franklin is separated by a long age from the autobiography of
Benvenuto Cellini, and the one is as perfect a mirror of the faith of
the man and the manner of the age as the other. But these questions
are not of the present point. Undoubtedly the book of a nation's art
and the book of its words must be read along with the book of its
deeds if its life and character are to be comprehended as a whole;
and another book, besides, — the book of its material life, its foods,
its fashions, its manufactures, its temperatures and seasons. In each
of these great books the historian looks for the same thing: the life
of the day, the impulses that underlie government and all achieve-
ment, all art and all literature, as well as all statesmanship.

I do not say that the specialists who have so magnified their office
in our day have been conscious of this ultimate synthesis. Few of
them have cared for it or believed in it. They have diligently spent
their intensive labor upon a few acres of ground, with an exemplary
singleness of mind, and have displayed, the while, very naively, the
provincial spirit of small farmers. But a nation is as rich as its sub-
jects, and this intensive farming has accumulated a vast store of

8 HISTORICAL SCIENCE

excellent food-stuffs. No doubt the work would have been better
done if it had been done in a more catholic spirit, with wider sym-
pathies, amidst horizons. The broader the comprehension the more
intelligent the insight. But we must not ask for all things in a gen-
eration or expect our own perfection by any other way than the
familiar processes of development.

Perhaps we are near enough the time of synthesis and coordination
to see at least the organic order and relationship of the several special
branches of historical inquiry which have been grouped in this
Division of our Congress. All history has society as its subject-mat-
ter: what we ponder and explore is, not the history of men, but the
history of man. And yet our themes do not all lie equally close to
the organic processes of society. Those processes are, of course, most
prominent in political and economic history, least prominent, per-
haps, in the history of language. I venture to suggest that the
organic order is: Politics, economics, religion, law, literature, art,
language. So far as the question affects religion and law, I must
admit that I am not clear which of the two ought to take precedence,
— in modern history, certainly law; but most history is not modern,
and in that greater part which is not modern clearly religion over-
crows law in the organic, social process.

I know that the word religion, in this connection as in most others,
is of vague and mixed significance, covering a multitude of sins; but
so far as my present point is concerned, it is easy of clarification.
Religion, as the historian handles it, involves both a history of insti-
tutions, of the church, and a history of opinion. As a history of
opinion it perhaps lies no nearer the organic processes of society
than does the history of literature; but from the beginning of
recorded events until at any rate the breaking up of foundations
which accompanied and followed the French Revolution, it concerns
the church as an institution as definitely as the history of politics,
with its various records of shifting opinion, concerns the state, and
the organic life of the body politic. In such a view, religion must
take precedence of law in the organic order of our topics. From the
remotest times of classical history, when church and state, priest
and judge, were hardly distinguishable, through the confused Middle
Age, in which popes were oftentimes of more authority than kings
and emperors, down to the modern days, when priests and primates
were, by very virtue of their office, chief politicians in the plot of
public policy, the church has unquestionably played a part second
only to the state itself in the organization and government of society,
in the framing of the public life.

Law occupies a place singular and apart. Its character is without
parallel in our list. It has no life of its own apart from the life of the
as religion has, or literature, or art, or language. Looked at

THE VARIETY AND UNITY OF HISTORY 9

as the lawyer looks at it, it is merely the voice of the state, the body
of regulations set by government to give order to the competitive
play of individual and social forces. Looked at from the historian's
point of view, it consists of that part of the social thought and habit
which has definitely formed itself, which has gained universal acqui-
escence and recognition, and which has been given the sanction and
backing of the state itself, a final formulation in command. In either
case, whatever its origin, whether in the arbitrary will of the law-
maker or in the gradually disclosed and accepted convenience of
society, it comes, not independently and of itself, but through the
mouth of governors and judges, and is itself a product of the state.
But not of politics, unless we speak of public law, the smaller part,
not of private, the greater. The forces which created it are chiefly
economic, or else social, bred amidst ideas of class and privilege.
It springs from a thousand fountains. Statutes do not contain all of
it; and statutes are themselves, when soundly conceived, but gen-
eralizations of experience. The truth is that, while law gets its
formulation and its compulsive sanction from the political governors
of the state, its real life and source lie hidden amidst all of the vari-
ous phenomena which historians are called upon to explore. It
belongs high in the list I have made, because it so definitely takes its
form from the chief organ of society.

To put literature before art in the organic order I have suggested,
is not to deny Mr. Ruskin's dictum, that art more than literature
comes "by the general gifts and common sympathies of the race,"
by instinct rather than by deliberation; it is only to say that more
of what is passing through a nation's thought is expressed in its
literature than in its art. As a nation thinks so it is; and the his-
torian must give to the word literature a wider significance than
the critic would vouchsafe. He must think not merely of that part
of a nation's book of words upon which its authors have left the touch
of genius, the part that has been made immortal by the transfiguring
magic of art, but also of the cruder parts which have served their
purpose and now lie dead upon the page, — the fugitive and ephem-
eral pamphlets, the forgotten controversies, the dull, thin prose of
arguments long ago concluded, old letters, futile and neglected
pleas, — whatever may seem to have played through the thought of
older days.

Of the history of language I speak with a great deal of diffidence.
My own study of it was of narrow scope and antedated all modern
methods. But I know what interest it has for the historian of life and
opinion; I know how indispensable its help is in deciphering race
origins and race mixtures; I know what insight it affords into the
processes of intellectual development; I know what subtle force it
has had not only in moulding men's thoughts, but also their acts and

10 HISTORICAL SCIENCE

their aspirations after the better things of hope and purpose. I know-
how it mirrors national as well as individual genius. And I know that
all of these data of organic life, whether he take them at first hand or
at second, throw a clarifying light upon many an obscure page of the
piled records that lie upon the historian's table. I fancy that the
historian who intimately uses the language of the race and people of
which he writes somehow gets intimation of its origin and history into
his ear and thought whether he be a deliberate student of its develop-
ment or not; but be that as it may, the historian of language stands
at his elbow, if he will but turn to him, with many an enlightening
fact and suggestion which he can ill afford to dispense withal. It is
significant, as it is interesting, that the students of language have
here been definitely called into the company of historians. May the
alliance be permanent and mutually profitable!

My moral upon the whole list is, that, separated though we may
be by many formal lines of separation, sometimes insisted on with
much pedantic punctilio, we are all partners in a common under-
taking, the illumination of the thoughts and actions of men as asso-
ciated in society, the life of the human spirit in this familiar theatre
of cooperative effort in which we play, so changed from age to age
and yet so much the same throughout the hurrying centuries. Some
of the subjects here grouped may stand high in the list of organic
processes, others affect them less vigorously and directly; but all are
branches and parts of the life of society. In one of the great topics we
deal with there is, I know, another element which sets it quite apart
to a character of its own. The history of religion is not merely the
history of social forces, not merely the history of institutions and of
opinions. It is also the history of something which transcends our
divination, escapes our analysis, — the power of God in the life of
men. God does, indeed, deal with men in society and through social
forces, but he deals with him also individually, as a single soul, not
lost in society or impoverished of his individual will and respons-
ibility by his connection with the lives of other men, but himself
sovereign and lonely in the choice of his destiny. This singleness
of the human soul, this several right and bounden duty of indi-
vidual faith and choice, to be exercised oftentimes in contempt and
defiance of society, is a thing no man is likely to overlook who has
noted the genesis of our modern liberty or assessed the forces of
reform and regeneration which have lifted us to our present enlighten-
ment; and it introduces into the history of religion, at any rate since
the day of Christ, the master of free souls, an element which plays
upon society like an independent force, like no native energy of its
own. This, nevertheless, like all things else that we handle, comes
into the sum of our common reckoning when we would analyze the
life of men as manifested in the book of their deeds, in the book of

THE VARIETY AND UNITY OF HISTORY 11

their words, in the book of their art, or in the book of their material
arts, consumption, needs, desires; and the product is still organic.
Men play upon one another whether as individual souls or as political
and economic partners.

What the specialist has discovered for us, whether he has always
discovered it for himself or not, is, that this social product which we
call history, though produced by the interplay of forces, is not always
produced by definite organs or by deliberation: that, though a joint
product, it is not always the result of concerted action. He has laid
bare to our view particular, minor, confluent but not conjoint influ-
ences, which, if not individual, are yet not deliberately cooperative,
but the unstudied, ungeneraled, scattered, unassembled, it may be
even single and individual expression of motives, conceptions, im-
pulses, needs, desires, which have no place within the ordered, cor-
porated ranks of such things as go by legislation or the edicts of
courts, by resolutions of synods or centred mandates of opinion, but
spring of their own spontaneous vigor out of the unhusbanded soil
of unfenced gardens, the crops no man had looked for or made ready
to reap. Though all soils from which human products suck their sus-
tenance must no doubt lie within the general sovereignty of society,
and no man is masterless in our feudal moral system, these things
which have come to light by the labor of those who have scrutinized
the detail of our lives for things neglected have not been produced
within the immediate demesnes of the crown. Historians who ponder
public policy only, and only the acts of those who make and admin-
ister law and determine the relationships of nations, like those who
follow only the main roads of literature and study none but the
greater works of art, have therefore passed them by unheeded, and
so, undoubtedly, have missed some of the most interesting secrets
of the very matters they had set themselves to fathom. Individuals,
things happening obscure and in a corner, matters that look like inci-
dents, accidents, and lie outside the observed movements of affairs,
are as often as not of the very gist of controlling circumstance and
will be found when fully taken to pieces to lie at the very kernel of
our fruit of memory.

I do not mean to imply that the work of the specialist is now near
enough to being accomplished, his discoveries enough completed,
enough advertised, enough explained, his researches brought to a
sufficient point of perfection. I daresay he is but beginning to come
into his kingdom: is just beginning to realize that it is a kingdom,
and not merely a congeries of little plots of ground, unrelated, un-
neighborly even; and that as the years go by and such studies are
more and more clarified, more and more wisely conceived, this
minute and particular examination of the records of the human spirit
will yield a yet more illuminating body of circumstance and serve

12 HISTORICAL SCIENCE

more and more directly and copiously for the rectification of all his-
tory. What I do mean, and what, I daresay, I am put here to pro-
claim, is, that the day for synthesis has come; that no one of us can
safely go forward without it; that labor in all kinds must hence-
forth depend upon it, the labor of the specialist no less than the
labor of the general historian who attempts the broader generaliza-
tions of comment and narrative.

In the English-speaking world we have very recently witnessed
two interesting and important attempts at synthesis by cooperation
in Mr. H. D. TrailPs Social England and Lord Acton's Cambridge
Modern History, the one now complete, the other still in course of
publication. We have had plans and proposals for a somewhat
similarly constructed history of the United States. Mr. Justin
Winsor's Narrative and Critical History of America hardly furnishes
an example of the sort of work attempted in the other series of which
I have spoken. Aside from its lists and critical estimates of author-
ities, it is only history along the ordinary lines done in monographs,
covering topics every historian of America has tried to cover. Mr.
Traill's volumes, as their general title bears evidence, run upon a
wider field, whose boundaries include art, literature, language, and
religion, as well as law and politics. They are broader, at any rate
in their formal plan, than Lord Acton's series, if we may judge by the
three volumes of the Cambridge Modern History already published.
The chapter-headings in the Cambridge volumes smack much more
often of politics and public affairs than of the more covert things of
private impulse and endeavor. Their authors write generally, how-
ever, with a very broad horizon about them and examine things
usually left unnoted by historians of an earlier age. The volumes
may fairly be taken, therefore, to represent an attempt at a com-
prehensive synthesis of modern historical studies.

Both Mr. Traill's volumes and the Cambridge Modern History are
constructed upon essentially the same general plan. The sections of
the one and the chapters of the other are monographs pieced together
to make a tessellated whole. The hope of the editors has been to
obtain, by means of carefully formulated instructions and suggestions
issued beforehand to their corps of associates, a series of sections
conceived and executed, in some general sense, upon a common
model and suitable to be worked in together as parts of an intelligible
and consistent pattern; and, so uniform has been our training in
historical research and composition in recent years, that a most sur-
prising degree of success has attended the effort after homogeneous
texture in the narrative and critical essays which have resulted; a
degree of success which I call surprising, not because I think it very
nearly complete, but because I am astonished that, in the circum-
stances, it should have been success at all and not utter failure.

THE VARIETY AND UNITY OF HISTORY 13

It is far from being utter failure; and yet how far it is also from
being satisfactory success! Allow me to take, as an example of the
way in which these works are constructed, my own experience in
writing a chapter for the volume of the Cambridge Modern History
which is devoted to the United States. In doing so I am far from
meaning even to imply any criticism upon the editors of that admir-
able series, to whom we are all so much indebted. I do not see how,
without incredible labor, they could have managed the delicate
and difficult business intrusted to them in any other way; and I am
adducing my experience in their service only for the sake of illus-
trating what must, no doubt, inevitably be the limitations and draw-
backs of work in this peculiar kind. I can think of no other way so
definite of assessing the quality and serviceability of this sort of syn-
thesis. I was asked by Lord Acton to write for his volume on the
United States the chapter which treats of the very painful and
important decade 1850—1860, and I undertook the commission with
a good deal of willingness. There are several things concerning that
critical period which I like to have an opportunity to say. But I had
hardly embarked upon the interesting enterprise, which I was bidden
compass within thirty of the ample pages of the Cambridge royal
octavos, before I was beset by embarrassments with regard to the
manner and scope of treatment. The years 1850-1860 do not, of
course, either in our own history or in any other, constitute a decade
severed from its fellows. The rootages of all the critical matters
which then began to bear their bitter fruitage are many and complex
and run far, very far, back into soil which I knew very well other
writers were farming. I did not know what they would say or leave
unsaid, explain or leave doubtful. I could take nothing for granted-;
for every man's point of view needs its special elucidation, and he can
depend upon no other man to light his path for him. I therefore
wrote a narrative essay, in my best philosophical vein, on the events
of the decade assigned me, in which I gave myself a very free hand
and took care to allow my eye a wide and sweeping view upon every
side. I spoke of any matter I pleased, harked back to any transaction
that concerned me, recking nothing of how long before the limiting
date 1850 it might have occurred, and so flung myself very freely, -
should I say very insolently? — through many a reach of country
that clearly and of my own certain knowledge belonged to others,
by recorded Cambridge title. How was I to avoid it? My co-laborers
were not at my elbow in my study. Some of them were on the other
side of the sea. The editors themselves could not tell me what these
gentlemen were to say, for they did not know. The other essays
intended for the volume were on the stocks being put together, as
mine was.

I must conjecture that the other writers for that volume fared as

14 HISTORICAL SCIENCE

I did, and took the law into their own hands as I did; and their expe-
rience and mine is the moral of my criticism. No sort of cunning
joinery could fit their several pieces of workmanship together into
a single and consistent whole. No amount of uniform type and sound
binding can metamorphose a series of individual essays into a book.
I may be allowed to express my surprise, in passing, that some indi-
vidual historians should have tried to compound and edit themselves
in the same way, by binding together essays which were conceived
and executed as separate wholes. The late Mr. Edward Eggleston
furnished us with a distinguished example of this in his Beginners
of a Nation, whose chapters are topical and run back and forth
through time and circumstance without integration or organic relation
to one another, treating again and again of the same things turned
about to be looked at from a different angle. And if a man of capital
gifts cannot fuse his own essays, or even beat and compress them into
solid and coherent amalgam, how shall editors be blamed who find
the essays of a score of minds equally intractable? No doubt the
Cambridge volumes are meant for scholars more than for untrained
readers, though Mr. TrailFs, I believe, are not; but even the docile
scholar, accustomed of necessity to contrast and variety in what he
pores upon and by habit very patient in reconciling inconsistencies,
plodding through repetitions, noting variations and personal whim-
sies, must often wonder why he should thus digest pieces of other
men's minds and eat a mixture of secondary authorities. The fact is,
that this is not synthesis, but mere juxtaposition. It is not even
a compounding of views and narratives. It is compilation. There is
no whole cloth, no close texture, anywhere in it. The collected pieces
overlap and are sometimes not even stitched together. Events —
even events of critical consequence — are sometimes incontinently
overlooked, dropped utterly from the narrative, because no one of
the writers felt any particular responsibility for them, and one and
another took it for granted that some one else had treated of them,
finding their inclusion germane and convenient.

But if we reject this sort of cooperation as unsatisfactory, what
are we to do? Obviously some sort of cooperation is necessary in this
various and almost boundless domain of ours; and if not the sort
Mr. Traill and Lord Acton planned, what sort is possible? The ques-
tion is radical. It involves a great deal more than the mere deter-
mination of a method. It involves nothing less than an examination
of the essential character and object of history, — I mean of that
part of man's book of words which is written as a deliberate record
of his social experience. What are our ideals? What, in the last
analysis, do we conceive our task to be? Are we mere keepers and
transcribers of records, or do we write our own thoughts and judg-
ments into our narratives and interpret what we record? The ques-

THE VARIETY AND UNITY OF HISTORY 15

tion may be simply enough asked, but it cannot be simply answered.
The matter requires elaboration.

Let us ask ourselves, by way of preliminary test, what we should
be disposed to require of the ideal historian, what qualities, what
powers, what aptitudes, what purposes? Put the query in another
form, more concrete, more convenient to handle: how would you
critically distinguish Mommsen's History from a doctor's thesis? By
its scope, of course; but its scope would be ridiculous if it were not
for its insight, its power to reconceive forgotten states of society, to
put antique conceptions into life and motion again, build scattered
hints into systems, and see a long national history singly and as
a whole. Its masterly qualities it gets from the perceiving eye, the
conceiving mind of its great author, his divination rather than his
learning. The narrative impresses you as if written by one who has
seen records no other man ever deciphered. I do not think Mommsen
an ideal historian. His habit as a lawyer was too strong upon him:
he wrote history too much as if it were an argument. His curiosity
as an antiquarian was too keen: things very ancient and obscure
were more interesting to him than the more commonplace things,
which nevertheless constitute the bulk of the human story. But his
genius for interpretation was his patent of nobility in the peerage of
historians; he would not be great without it; and without it would
not illustrate my present thesis.

That thesis is, that, in whatever form, upon whatever scale you
take it, the writing of history as distinguished from the clerical keep-
ing of records is a process of interpretation. No historical writer,
how small soever his plot of time and circumstance, ever records
all the facts that fall under his eye. He picks and chooses for his
narrative, determines which he will dwell upon as significant, which
put by as of no consequence. And that is a process of judgment, an
estimation of values, an interpretation of the matter he handles.
The smaller the plot of time he writes of, the more secluded from the
general view the matters he deals with, the more liable is he to error
in his interpretation; for this little part of the human story is but
a part; its significance lies in its relation to the whole. It requires
nicer skill, longer training, better art and craft to fit it to its little
place than would be required to adjust more bulky matters, matters
more obviously involved in the general structure, to their right
position and connections. The man with only common skill and eye-
sight is safer at the larger, cruder sort of work. Among little facts
it requires an exceeding nice judgment to pick the greater and the
less, prefer the significant and throw away only the negligible. The
specialist must needs be overseen and corrected with much more
vigilance and misgiving than the national historian or the historian
of epochs.

16 HISTORICAL SCIENCE

Here, then, is the fundamental weakness of the cooperative his-
tories of which I have spoken by example. They have no wholeness,
singleness, or integrity of conception. If the several authors who
wrote their sections or chapters had written their several parts only
for the eye of one man chosen guide and chief among them, and he,
pondering them all, making his own verifications, and drawing from
them not only but also from many another source and chiefly from
his own lifelong studies, had constructed the whole, the narrative
had been everywhere richer, more complete, more vital, a living
whole. But such a scheme as that is beyond human nature, in its
present jealous constitution, to execute, and is a mere pleasing fancy,
- if any one be pleased with it. Such things are sometimes done in
university seminars, where masters have been known to use, at their
manifest peril, 'the work of their pupils in making up their published
writings; but they ought not to have been done there, and they are
not likely to be done anywhere else. At least this may be said, that,
if master workmen were thus to use and interpret other men's mate-
rials, one great and indispensable gain would be made: history
would be coherently conceived and consistently explained. The
reader would not himself have to compound and reconcile the diverg-
ent views of his authors.

I daresay it seems a very radical judgment to say that synthesis
in our studies must come by means of literary art and the conceiving
imagination ; but I do not see how otherwise it is to come. By liter-
ary art, because interpretation cannot come by crude terms and
unstudied phrases in writing any more than pictorial interpretation
can come by a crude, unpracticed, ignorant use of the brush in paint-
ing. By the conceiving imagination, because the historian is not a
clerk but a seer: he must see the thing first before he can judge of it.
Not the inventing imagination, but the conceiving imagination, —
not all historians have been careful to draw the distinction in their
practice. It is imagination that is needed, is it not, to conceive past
generations of men truly in their habit and manner as they lived?
If not, it is some power of the same kind which you prefer to call by
another name : the name is not what we shall stop to discuss. I will
use the word under correction. Nothing but imagination can put the
mind back into past experiences not its own, or make it the con-
temporary of institutions long since passed away or modified beyond
recognition. And yet the historian must be in thought and com-
prehension the contemporary of the men and affairs he writes of.
He must also, it is true, be something more: if he would have the
full power to interpret, he must have the offing that will give him
perspective, the knowledge of subsequent events ,which will furnish
him with multiplied standards of judgment: he should write among
records amplified, verified, complete, withdrawn from the mist of

THE VARIETY AND UNITY OF HISTORY 17

contemporary opinion. But he will be but a poor interpreter if he
have alien sympathies, the temperament of one age when writing of
another, it may be contrasted with his own in every point of prefer-
ence and belief. He needs something more than sympathy, for
sympathy may be condescending, pitying, contemptuous. Few things
are more benighting than the condescension of one age for another,
and the historian who shares this blinding sentiment is of course
unfitted for his office, which is not that of censor but that of inter-
preter. Sympathy there must be, and very catholic sympathy, but
it must be the sympathy of the man who stands in the midst and sees,
like one within, not like one without, like a native, not like an alien.
He must not sit like a judge exercising exterritorial jurisdiction.

It is through the imagination that this delicate adjustment of
view is effected, — a power not of the understanding nor yet a mere
faculty of sympathetic appreciation, or even compounded of the
two, but mixed of these with a magical gift of insight added, which
makes it a thing mere study, mere open-mindedness, mere coolness
and candor of judgment cannot attain. Its work cannot be done by
editorship or even by the fusing of the products of different minds
under the heat of a single genius; its insight is without rule, and is
exercised in singleness and independence. It is in its nature a thing
individual and incommunicable.

Since literary art and this distinctive, inborn genius of interpreta-
tion are needed for the elucidation of the human story and must be
married to real scholarship if they are to be exercised with truth and
precision, the work of making successful synthesis of the several
parts of our labors for each epoch and nation must be the achieve-
ment of individual minds, and it might seem that we must await the
slow maturing of gifts Shakespearean to accomplish it. But, happily,
the case is not so desperate. The genius required for this task has
nothing of the universal scope, variety, or intensity of the Shake-
spearean mind about it. It is of a much more humble sort and is,
we have reason to believe, conferred upon men of every generation.
There would be good cause to despair of the advance of historical
knowledge if it were not bestowed with some liberality. It is needed
for the best sort of analysis and specialization of study as well as for
successful synthesis, for the particular as well as for the general task.
Moreover, a certain very large amount of cooperation is not only
possible but quite feasible. It depends, after all, on the specialists
whether there shall be successful synthesis or not. If they wish it,
if it be their ideal, if they construct their parts with regard to the
whole and for the sake of the whole, synthesis will follow naturally
and with an easy approach to perfection; but if the specialists are
hostile, if their enthusiasm is not that of those who have a large aim
and view, if they continue to insist on detail for detail's sake and

18 HISTORICAL SCIENCE

suspect all generalization of falseness, if they cannot be weaned
from the provincial spirit of petty farmers, the outlook is bad enough,
synthesis is indefinitely postponed. Synthesis is not possible without
specialization. The special student must always garner, sift, verify.
Minute circumstance must be examined along with great circum-
stance, all the background as well as the foreground of the picture
studied, every part of human endeavor held separately under
scrutiny until its individual qualities and particular relations with
the rest of the human story stand clearly revealed; and this is, of
necessity, the work of hundreds of minds, not of one mind. There is
labor enough and honor enough to go around, and the specialist
who puts first-rate gifts into his task, though he be less read, will not
in the long estimate of literature earn less distinction than the general
historian. It is a question of the division and cooperation of labor:
butMt is more; it is also a question of the spirit in which the labor is
done, the public spirit that animates it, the general aim and con-
ception that underlies and inspires it.

As a university teacher I cannot help thinking that the govern-
ment of the matter is largely in the hands of the professors of history
in our schools of higher training. The modern crop of specialists is
theirs : they can plant and reap after a different kind if they choose.
I am convinced that the errors and narrownesses of specialization are
chiefly due to vicious methods and mistaken objects in the training
of advanced students of history in the universities. In the first place,
if I may speak from the experience of our American universities,
students are put to tasks of special investigation before they are
sufficiently grounded in general history and in the larger aspects of
the history of the age or nation of which they are set to elaborate a
part. They discover too many things that are already known and too
many things which are not true, — at any rate, in the crude and dis-
torted shape in which they advance them. Other universities may
be happier than ours in their material, in the previous training of the
men of whom they try to make investigators; but even when the
earlier instruction of their pupils has 'been more nearly adequate and
better suited to what is to follow, the training they add is not, I take
the liberty of saying, that which is likely to produce history, but only
that which is likely to produce doctors' theses. The students in
their seminars are encouraged, if they are not taught, to prefer the
part to the whole, the detail to the spirit, like chemists who should
prefer the individual reactions of their experiments to the laws
which they illustrate.

I should think the mischievous mistake easy enough of correction.
It is quite possible to habituate students to a point of view, and to
do so is often, I daresay, the best part of their preparation. When
they come to the advanced stage of their training, at which they are

THE VARIETY AND UNITY OF HISTORY 19

to be set to learn methods of investigation, they should not be set
first of all to the discovery or elaboration of facts, to the filling in of
the hiatuses easily and everywhere to be discerned, by their precept-
ors at any rate, in the previous study of detail. They should, rather,
be set to learn a very different process, the process of synthesis: to
establish the relations of circumstances already known to the general
history of the day in which they occurred. These circumstances
should not all be political or economic or legal ; they should as often
concern religion, literature, art, or the development of language, so
that the student should at once become accustomed to view the life
of men in society as a whole. Heaven knows there is enough original
work waiting to be done in this kind to keep many generations of
youngsters profitably employed. Look where you will in the field of
modern monographs, and it is easy to find unassociated facts piled
high as the roofs of libraries. There is not a little fame as well as much
deep instruction to be got out of classifying them and bringing them
into their vital relations with the life of which they form a part. It
were mere humanity to relieve them of their loneliness. After they
had been schooled in this work, which, believe me, some one must do,
and that right promptly, our advanced students of history and of
historical method would be ready to go on, if it were only after
graduation, after the fateful doctor's degree, to the further task of
making new collections of fact, which they would then instinctively
view in their connection with the known circumstances of the age in
which they happened. Thus, perhaps thus only, will the spirit and
the practice of synthesis be bred.

If this change should be successfully brought about, there would
no longer be any painful question of hierarchy among historians:
the specialist would have the same spirit as the national historian,
would use the same power, display the same art, and pass from the
ranks of artisans to the ranks of artists, making cameos as much to
be prized as great canvases or heroic statues. Until this happens
history will cease to be a part of literature, and that is but another
way of saying that it will lose its influence in the world, its mono-
graphs prove about as vital as the specimens in a museum. It is not
only the delightful prerogative of our studies to view man as a whole,
as a living, breathing spirit, it is also their certain fate that if they do
not view him so, no living, breathing spirit will heed them. We have
used the wrong words in speaking of our art and craft. History must
be revealed, not recorded, conceived before it is written, and we
must all in our several degrees be seers, not clerks. It is a high calling
and should not be belittled. Statesmen are guided and formed by
what we write, patriots stimulated, tyrants checked. Reform and
progress, charity and freedom of belief, the dreams of artists and the
fancies of poets, have at once their record and their source with us.

20 HISTORICAL SCIENCE

We must not suffer ourselves to fall dull and pedantic, must not lose
our visions or cease to speak the large words of inspiration and guid-
ance. It were a shame upon us to drop from the ranks of those who
walk at the van and sink into the ranks of those who only follow
after, to pick up the scattered traces of the marching host as things
merely to pore upon and keep. We cannot do this. We will return
to our traditions and compel our fellow historians of literature to
write of us as of those who were masters of a great art.

DEPARTMENT III
POLITICAL AND ECONOMIC HISTORY

POLITICAL AND ECONOMIC HISTORY

(Hall 4, September 20, 11.15 a. m.)

THE SCIENCE OF HISTORY IN THE NINETEENTH

CENTURY

BY WILLIAM MILLIGAN SLOANE

[William Milligan Sloane, Seth Low Professor of History, Columbia University,
since 1896. b. November 12, 1850, Richmond, Ohio. A.B. Columbia, 1868;
Ph.D. Leipsic, 1876; L.H.D. Columbia, 1885; LL.D. Rutgers, 1900; Princeton,
1903. Post-graduate, University of Berlin, 1872-75; University of Leipsic,
1875-76. Classical Master Newell Institute, 1868-72. Professor of Latin,
Princeton, 1877-82; History, 1882-96. Member Academy of Political Science,
American Historical Association, National Institute of Arts and Letters.
Author of The French War and the Revolution; Napoleon Bonaparte; The
French Revolution and Religious Reform ; and editor of The American Histor-
ical Review.]

THE scientific study of history seeks to find in the past the means
of determining both the evolution occurring under our eyes and the
probabilities of the future. No preconception may distort the facts;
but, the facts once determined, they may not be considered except
in the light of reason. This by the rhetorical figure of " anticipation J>
we call, the Science of History. There is no claim that as yet this is
other than an empirical science : we hope that one day it may become
fairly complete; exact, within certain limits. Freeman, Morley,
Acton; Comte, Renan, Taine; Waitz, Ranke, Mommsen, — these are
some of the men who during the century just past have labored to
make history scientific. One and all they ridiculed the wild exaggera-
tion of mere reason as the final arbiter, apart from the affections,
the imagination, and the moral sense; one and all they distrusted
the " vague and sterile philanthropy, " which is so often a plague to
normal social conditions. Freethinkers as were most of them, yet,
liberal and orthodox alike, they believed in the merits and benefac-
tions of the Christian Church as a vital factor in their science. In their
catholic spirit they were truly scientific.

It is assumed that the scientific study of history has entirely dis-
placed history as literature; or literary history, as many style it.
There have, indeed, been many men of light and learning, whose style
and trained imagination have transmuted history into literature:
there have been others who sought, even in the study of texts and in
the interpretations of philology, to secure the material of novels, tales,
or poetry, to find examples for the inspiration and consolation of

24 POLITICAL AND ECONOMIC HISTORY

contemporary life. For such works the public has a passion, and no
wonder; with the delight of literature we seem to combine learning
and education. We savor and love the mixture of fact, philosophy,
and poetry; the invention, the charm, the power. Yet this is not
and never was history; something perhaps higher, but not history.
There may even be literary science; but for all that science is not
literature nor literature science. These twain cannot be made one
flesh. Each may modify the other, but there is no transmutation.

For the scientific study of history we must have minds subtle,
conscientious, and accurate — minds with a power and aptitude for
minutiae, with a patience and endurance which know no bounds,
honest minds incapable of even self-deception, and in particular
with the linguistic gift that makes no language impossible of acquisi-
tion or foreign to the learner's aptitudes. Only for the mind thus
equipped can history and philology be scientific. The generations of
men endowed with the imaginative faculty have seen and will ever
see, in the labors of such minds, the most splendid form of applied
art, the highest known form of prose literature possibly, but cer-
tainly the nearest approach to scientific history that can be made.

In ours as in other disciplines there is trouble; and the trouble,
as elsewhere, arises among the men who are destitute, or nearly so, of
the imaginative power which is so well designated as the scientific
imagination. Honest men of this sort, proud of their devotion and
accuracy, become pedantic, claim infallibility, and despise all others:
in the presence of the most august of all terrestrial things, — the
origins, rise, and evolution of a state, the supreme social unit, — the
mere investigator secures no large view but becomes a stern, con-
temptuous materialist. Only worse than these are the ignorant and
impatient, who disdain the accuracy of truth, and are indifferent to
the orderly arrangement of facts: the chain of causation in human
affairs they can neither understand nor appreciate, being dazzled by
speculation, imagery, and rhetoric. Shallow and inaccurate, they
prate about history as literature, and deny the possibility of a science
of history.

In the closing years of the nineteenth century there was much
strife about the question as to whether or not there could be science
in history. The question now is: How much science and of what kind
is there in history? As some help toward a reply, we are forced to an
historical retrospect of the efforts to secure and apply a method.

The eighteenth century is by many regarded as the period when
history was born anew into the realm of science. The reason given is
that it coincided with the final overthrow of ecclesiasticism, and the
chief names adduced in proof are these of Vico (1668-1744), Gibbon
(1737-94), Voltaire (1694-1778), and Burke (1729-97). It was felt
that humanity was, if not its own first cause, at least its own demi-

HISTORY IN THE NINETEENTH CENTURY 25

urge, and men were determined to discover, if possible, what were
the processes by which mankind had formed itself and made its home.
Without a doubt there was for this reason a passionate study of
nature, and it may have been a necessary complement that both the
statics and dynamics of social phenomena were examined with a new
purpose and from a new angle. But in spite of all efforts to establish
this contention and to trace an historical continuity in the science of
"histories" from then until now, there lie athwart the argument
difficulties so portentous and so serious as almost if not entirely to
vitiate its conclusions.

It is true that Vico was the first to ask why, if there be a science
of nature, we have no science of history? It is consequently true that
he was the first historical evolutionist. To him the story of a nation
was the record of an ever completer realization in fact of certain
remnants of a pre-natal revelation, of the primitive concrete notions
of justice, goodness, beauty, and truth: the development, as he
phrased it, of this poetic wisdom into the occult wisdom of law and
government, into the realization of abstract and impersonal justice,
was for him the subject-matter of history. This was a sublime idea,
pregnant with great possibilities. But its author could not see the
conclusions. Conceiving of three stages — divine, heroic, and
human — he announced three corresponding civilizations, ending in
an unstable democracy, whence society abandoned to license always
relapses into barbarism, only to emerge once more by a law of cycles
into a renewal of the process. This, of course, is a flat denial of pro-
gress. Moreover Vico never had a glimpse, much less a vision, of
scientific order in history beyond the record of a single folk, and never
conceived of general history in a scientific aspect. For these reasons
he was a prophet without honor, either contemporaneous or post-
humous, and left no influence behind to mould either his own or
succeeding ages.

The method which Voltaire announced was alike more simple and
more scientific. It was based on the theory that most details of his-
tory are mere baggage, and that when the lumber of the antiquary,
as Bolingbroke called it, is disengaged from capital events, you may
study in these last the vital human power and its workings. Wars,
diplomacy, and the personal minutiae of the political hierarchy, he
relegated to the garret of the chronicler and collector: laws, arts, and
manners, he conceived to be the essentials of history. Equipped with
this doctrine, he turned to account such portions of his time as he
could spare from literature, politics, and attacks on ecclesiasticism
to the composition of philosophical history. By the sheer force of
historic doubt he destroyed many a myth, by the seductions of a
graceful style and the stings of a biting sarcasm he relegated the
millinery of human life to the rummage chambers where it belongs,

26 POLITICAL AND ECONOMIC HISTORY

and finally in his great essay on manners he drew the plan and
established the proportions for a concept of unity in history which in
another land and age was destined to revolutionize the pursuit.

Either he never knew or he had forgotten a vital point. Jejune
and embryonic as Aristotle's Politics appear when applied to our pro-
blems, his experience having been confined to the petty states of
Greece, he nevertheless found and set forth the vital principle of soci-
ety as an organism. On this were based the ancient concepts of
economics. The embryo of modern economics was begotten by Jean
Bodin (1580), a lawyer of the sixteenth century, who formulated the
ideas of progress, law, and causation in history. Had he combined
with his own thoughts (Methodus ad facilem Historiarum Cognitionem)
the one great thought of Aristotle, he would have been even more
famous than he is, he would have been the father of scientific history
as well as of scientific economics. His objective, external attitude
toward history was that of all the great, down to the nineteenth cen-
tury; it was the basic concept and starting-point of Bossuet, of Vico,
of Bodin, and even of Montesquieu. It was likewise the radical vice of
Voltaire, as in a still higher degree it was that of Gibbon. The founda-
tions of the social union may not be studied in collections of historical,
legal, or even social facts, nor in brilliant generalizations therefrom,
like those which cause the pages of Montesquieu to flash and scintil-
late. The true science of history shows us not merely the operations,
what has been called the "play and function" of the social organs,
it exhibits under the scalpel the organs themselves. Negative criti-
cism has its rights, no doubt, but it is scanty fare for the hungry soul,
and the idea of constructive, productive criticism was far better
developed in Thucydides than in Voltaire; the most that can be
said of the latter is that he saw in a glass darkly the concept, not of
the unity of history, but of European history as a totality.

What then of Gibbon; has he too been weighed in the balances and
found wanting? His erudition was immense, his pen facile and power-
ful, his grasp gigantic and his method sound. Let us apply the su-
preme test. Do scholars read him? or, if they read him, is it for any
other motive than a learned curiosity? They copiously correct and
annotate him, and freely explore the mazes of his thought: they
conspire with publishers to issue new editions of his books, and the
public buys edition after edition; but so likewise do they buy edition
after edition of Rollin's Universal History! The sets look well on the
shelves, but the man who reads either is hard pressed to kill time.
There is more light thrown on the Decline and Fall by the short
treatise of Fustel than by all the ponderous and erudite rhetoric of
Gibbon. We have gleaned, not a few, but many facts, which Gibbon
had not, even though the truth of fact is on all his pages; his method
struggles to combine the ideas of evolution and of organism, but

HISTORY IN THE NINETEENTH CENTURY 27

his logic is after all felt to be futile and his conclusions antiquated.
Like the other historians of his epoch, though the movement of his
style is like that of the Roman triumph, he has not left to the world
a "possession forever." Scholars can find all his information else-
where, the use he makes of it they neither admire nor approve.
Readers of discrimination have better use for their time than to pe-
ruse the pages of an unsympathetic formalist, the eulogist of heathen
effeminacy, an apologist for pagan morality.

In truth, the eighteenth century is very remote from the nine-
teenth. The same facts no longer wear the same faces, and another
method has gradually supplanted that which, though respectable,
was nevertheless outworn. A restless evolution renews during every
few generations all history in all its aspects, and never halts in the
process. It is the fiat that history must be rewritten as knowledge
grows, as epoch succeeds epoch. This is because readers have lived;
have lived themselves into a world that is new scientifically and
psychologically, and which has perspectives of which the past knew
nothing. Viewed from the heights of our modern achievements in
learning, the vaunted historical science of the eighteenth century,
method and all, seems little better than a dangerous pseudo-science
like phrenology or astrology.

The first reaction against what was after all a phantom, stately
though it were, sprang rather from feeling than from knowledge;
it was a rebound of logic and not of reason. This premature revolt
is probably best illustrated in the case of Niebuhr. Though powerful,
the mind of the great Danish diplomat was dry and disdainful:
contemptuous of the practical and judicial. In his field of ancient
history he substituted for painstaking research and for concrete
reasoning a method based on gratuitous assumptions, a method
which destroyed traditional reality, to erect in its place a baseless
fabric of credulous negations. It has been the task of his successors,
beginning with Mommsen and ending with Taine's fine treatise on
Livy, to dissipate his airy structure of so-called analytic criticism.
Considerate as they have been, they have left upright only a very few
of his original contentions, and these the least important, wherewith
to uphold, for shame's sake, the vanishing renown of his name. The
indications of archa3ological discovery at this hour all point to the
ultimate annihilation of every principle and position which he enun-
ciated. Could his shade be seen strolling to<lay across the exca-
vated Roman Forum, and its crowding reflections be recorded for
our benefit, the muttered syllables of its vanitas vanitatum would
instruct our generation how superior is even the older notion of
history as a compound of poetry and philosophy to the substitute,
which merely dissects and compares abstractions, which begets
negations and brings forth only specious presumptions.

28 POLITICAL AND ECONOMIC HISTORY

It will appear, 1 think, on dispassionate examination, that the
beginning of fruitfully scientific study in history, the initiation of
the modern method, is to be found in Heeren. Unlike Niebuhr, he
builded with new materials. Beginning as a philosopher, he applied
in ancient history the Socratic method, and discovered that the states
of antiquity could be understood only in the light of their institutions
and their politics. Entering on a profound investigation of these, he
found them so interlaced with their foreign relations that he exam-
ined under compulsion both Greece and Rome in their connection
alike with Egypt and with Carthage. Even with the imperfect in-
formation of the time, he brought to light the momentous principle of
mutation as dependent not merely on outward form but on internal
structure (morphology). His is the vital notion of comparing con-
temporary histories in short periods, as opposed to the elucidation of
single ones in long succeeding cycles of time. For this is essential to
our later doctrine of the unity of history, without which no true
science of the same, however rudimentary, is at all possible. With
a consciousness of this grand truth as probably applicable to every
period of history, he essayed it in the following epochs and evolved
the concept which, revolutionary then, is now the corner-stone of
modern history, that of the state-system of Europe, the basis upon
which Macaulay erected the great reputation which he deserves.
It may be asserted of Heeren now, as was hinted by a French
critic in his lifetime, that he avoided every pitfall into which
cumbrous thoroughness throws its German votaries, and escaped
every trap which over-confident logic sets for its acrobatic French
disciples.

The fine sense of limit and proportion exhibited by Heeren were in
glaring contrast to the shoreless ocean of speculation on which both
Herder and Hegel were sailing almost simultaneously. Alike they
taught that the earthly realization of reason in history is a necessity,
that whether by men, or in spite of man, all obstacles are leveled
until humanity, freed from every hindrance, realizes the divine ideal.
Alike therefore they landed on the quicksands of what may be to
some a buoyant, but is to most a very gloomy fatalism, as the only
basis for progress, being alike unmindful of Kant's almost self-
evident but nevertheless glorious declaration that progress is a
moral product purely. From the position of these transcendentalists
the thought which has dominated the latter years of the nineteenth
century, that of the pure evolutionists, does not essentially budge one
jot: both are fatalistic. The latter, it is true, have a concept of pro-
gress antipodal to that of their predecessors. They likewise assume,
somewhat rashly it seems in the present state of physics, that the
laws of science are fixed and immutable; in particular, the taproot
of the system, the doctrine of the conservation of energy, seems to

HISTORY IN THE NINETEENTH CENTURY 29

sit uneasily on crumbling and refractory shale instead of burrowing
ever deeper into fertile soil.

It is in the application of this very doctrine that their theory
of history emerges. To them it appears that energy being constant
and indestructible in the social as in the physical order, every dyna-
mic element works necessarily to associate itself with others, forming
under internal influence, by integration an organism ever more and
more complex. Simultaneously and subsequently goes on the pro-
cess of disintegration, each element disassociating itself from others
under external influence, and forming again with other and like busy
elements new composites, which in turn inaugurate the next stage
of evolution and devolution, of progress and decadence. While these
philosophers fail to find the secret of purpose and procedure, yet they
never entirely abandoned teleology, and some at least have lately
returned to it as essential to their thought, for advance seems to them
stronger than retreat, constructive stronger than destructive force.

The history of philosophy shows that every cycle of thought ends
in some phase of materialism. There is at this hour such a school of
Augustuluses, and they have been fairly influential in high places.
They have unraveled evolutionary logic into what is an absurdity
and are loosing the slight hold they have had for a time. Theirs is not
the agnosticism which is a state of suspended judgment, but the firm
conviction of the obscurantist, denying the right of generalization as
to fact or principle, scorning the notion of ethical values in history.
They reunite the vicious circle, joining hands \vith Froude and scoff-
ing at the idea of science in history, even of an empirical science.
For them history is but a mosaic of details, without design or outline,
like some cathedral windows in England; patched and assembled
from the shreds to which iconoclasts reduced the glorious and glowing
paintings which, by color and orderly arrangement, once conveyed
noble and exalting thought. These are the haughty disciples of the
monograph, the apostles of the "unprinted," the missionaries of
chaos. In the wilderness they seek to create, their voice is heard but
not heeded. Generous youth has a fine instinct in the matter of
barren nonsense. There is science in the sections of the biologist and
in the preparation of them, but neither the one nor the other is the
science of biology. We are grateful to these painstaking antiquarians
for their materials, but we cannot accept the materials in place of the
finished edifice.

Fortunately there has been a saner evolution than this. On Bacon's
great principle have stood those who guide and advance it; the
principle, namely, that it is the honor and the glory of history to
trace causes and their combination with effects. The most com-
manding characters of history, like men of common mould, suffer
the compulsion of circumstances which they cannot control. It must

30 POLITICAL AND ECONOMIC HISTORY

be admitted and duly emphasized that there is a mystery, a nature
of things, which runs with and athwart human purpose; that there
is a cosmic order, pregnant with a train of events that are inevitable;
there are relation, proportions and links in affairs and in men, which
are predetermined. This, when disengaged from the documents, is
what has been designated the weft or texture of history. Thereon is
drawn and embroidered by man the enduring picture which is the
historical record. This is the view of history which lays emphasis
neither on collective nor on individual man, but on the personal and
race conscience alike and in equal proportion. The law of moral pro-
gress has always imposed itself on societies, and always will, just in
proportion as individuals will that it shall, and labor without cease
for the purpose.

It was a great saying which Kant uttered when he said: By strug-
gle and effort ought all human faculties to perfect themselves; moral
progress is antecedent to all other forms and the source of them;
besides, the conquests of each generation are the capital of the next,
so that the sole condition of human perfectibility is the establishment
of a civil society founded on justice. The determination to realize
existence more completely, to struggle for the ideal, to aspire higher
— the larger the number in every society who so feel it, and so
behave, the more completely will be overcome the apparently in-
superable obstacles to advance, the bondage of the past over the
present, the restriction of each people by its contemporaries, the
powerful solidarity of habit, of creed, and of inertia among men.

This is the view of historical science which, whether right or wrong,
was characteristic of the nineteenth century in all its best and most
fruitful work: the recognition of the evolutionary movement, the
exhibition of the uses to which men put it; the display of its organic
integration, the proof of its external disintegration by moral forces;
the sloughing of refuse, the renewal of vital powers. This doctrine
may not pretend to the high scientific quality of some others, but
somehow it satisfies the master workmen and gratifies the aspira-
tions, instincts, and convictions of readers far better than any other.
It is the view which still controls the spiritual and intellectual activ-
ities of the best men in the highest civilizations. Neglecting the
philosophical "impasse" of liberty and necessity, it satisfies the re-
quirements of an imperious demand; that for the tangible results of
human experience.

The fruits of science being both a means of enjoyment and a guide
to conduct, our attention has naturally been monopolized by the
marvelous achievements of physical science. This is incorrect and
unjust; the advance and the results of the humanistic sciences have
been equally remarkable. The polymath of the eighteenth century,
with his unorganized masses of uncouth learning, would to-day be

HISTORY IN THE NINETEENTH CENTURY 31

a deformed monstrosity, so far has erudition spread its field and so
profound are the investigations of scholars. The comparative method,
without which modern science of any sort would be impossible, is
itself an invention of the humanists. And I have heard the greatest
devotees of pure science in our time yearn for a comparative historian
of their disciplines. The entire success of scientific history is due
to the achievements of the ancillary sciences; as revolutionary in
method and results as either physics, chemistry, or biology. In par-
ticular, history is the hopeless and grateful debtor of comparative
sociology, philology, and mythology, of comparative religions, folk-
lore and ethnology; and above all of comparative archaeology. One
winter spent on the Nile examining the unbroken and unfalsified
record of 10,000 years in human evolution under external influences
is worth to the student all the metaphysics of history, even when
indited by the genius of a Hegel.

By this vast erudition the work of the historian has become such
that a division of labor is essential. There must be specialists in
each and all of these ancillary sciences, and the historian must use
their results as his matter. It has become the categorical imperative
of scientific history that it should avail itself of its own wherever
found. In this way we have reached what would otherwise have
been inaccessible, viz., certain definitions of the task. We have
defined the limits, we have fixed the basis, we have as was shown in
another connection proved the unity, and we have consequently
found the scientific method of history. This is neither the time nor
the place further to discuss these, but they are realities. Without these
definitions the advance of the nineteenth century would have been
as futile as that of the eighteenth.

Let us turn and illustrate these contentions in considering four
great names of our epoch: perhaps not the greatest, but types at
least of the best in four great lands. The names are those of Macaulay ,
Ranke, Taine, and Bancroft. Once and for all let us say of each and
every one of them that he was a man of immense erudition; of perfect
good faith; of enormous, tireless, patient industry; of trained and
chastened intellect; fully aware of the canons of historical science
and determined to use them in his work. Each of them, moreover,
marks a stage and a quality of advance, which are not merely note-
worthy, but essential to our purpose.

The greatest German and the greatest French historians have paid
homage to Macaulay as certainly the foremost English historian,
as possibly the greatest of all historians since Thucydides, who, of
course, in other respects the peer of the modern, far surpasses him in.
philosophic insight. It is this weakness of Macaulay which is his
strength. He is distinctly, avowedly, a man of his time and place;
British of the British, and more than that a Victorian Englishman,

32 POLITICAL AND ECONOMIC HISTORY

an admirer of wealth and rank, proud of his country as the best on
earth. It is the pleasant England of his day which interests him, as
it interested alike his own countrymen and the contemporary world.
Setting out to explain this joyous land, he found and his readers
found that the fascinating riddle of its existence could be read clearest
in the light of the Whig movements then continuing, of the policies
of which he himself was an eminent supporter. Not in any sense
a philosopher, the truth as he saw it was not an analyzed and dis-
sected truth, not an abstraction, but a cognizable reality, to be
known and judged by the exercise of wholesome common sense.

Heeren, as we said earlier, had set forth the characters of the
scientific history which reckons with the peoples, the colonies, the
economics, the commerce of the world. This had a very direct bearing
on the state of the British Empire. Macaulay likewise knew that, to
be complete, history must take account of the whole earth within the
limits of its period. These conceptions the English historian with
magisterial power incorporated in his work — the opening chapters
are masterpieces of historical generalization. But his genius went
further, it took scientific history from the university into the home;
for the language, the illustrations, were so clear and so interwoven
with the tale that plain men felt as if they had a vision of grandeur
not vouchsafed hitherto to them or to their predecessors.

For years the volumes of Macaulay sold in England as no other
book sold, and in America the numbers of copies distributed were
second in number only to those of the Bible. There was not an
important language of the Continent into which the glowing pages
were not translated, and in many there were several rival translations.
The truth was made so clear and was so manifestly the truth that
the reading world felt a firm foundation beneath its feet. That the
author was avowedly utilitarian, openly a British patriot, arid
intensely a Whig partisan only served to create the effective chiar-
oscuro in which all his work was done. He had been so unwearied
a student of folk-song and folk-lore that he made himself what is
now called in art " a primitive " in his conception and understanding
of the commonplace, in his admiration of the homely.

It is doubtful whether the relativity of knowledge, either the
phrase or the notion, was known to Macaulay. For him the plain
truth was the truth. In addition, the state was for him no god,
mysterious and omnipotent; it was a secular association existing
only to assure the equality of citizens before the law, to protect life,
liberty, and property. In the enjoyment of political liberty all other
liberties are assured, and Macaulay is proud of that possession because
he sees in it the honor of man and of men. He is a patriot because he
has inherited this honor from an ancestry which suffered for it.
Taine, who gives solid reasons for his opinion, thinks Macaulay

HISTORY IN THE NINETEENTH CENTURY 33

proved all he said as forcibly and directly as he stated it, thus giving
the simple, every-day man an unshakable confidence. He not only
takes testimony, he weighs the veracity and intelligence of his wit-
nesses for the public judgment. Having erected on this foundation
a set of plain principles, he draws self-evident conclusions and in his
generalization he shows every rung of the ladder as he climbs. His
style and discussion are direct and cumulative; the current carries
him and his reader right onward in a straight line, gathering ever
greater force until the flood is as impetuous as the Amazon and like
it, too, as broad as the sea. Facts, ideas, explanations, the enormous
mass of scientific material, all are clad in a style which, though
harking back to Thucydides, Plautus, and Livy, to Petrarch, Dante,
and Milton, contains an elusive something which is born from none
of these, such is its sweeping passion, its irresistible eloquence.

This was not inspiration, it was art: the result of infinite pains-
taking and a set purpose. On a first rough draft he interlined, erased,
corrected, inverted, restored, elaborated, until, as in Balzac's proof,
the original \vas overlaid with a mass of words illegible to all except
the author, who then at his leisure wrote his printer's copy in a fine,
bold, confident hand. Prescott saw a few of these original foolscap
sheets and says no one could form any conception of the amount of
labor that one of them represents. With the serenity of a great soul,
with a religious faith in the power of truth; confident, like Cervantes,
that history was sacred because where truth is, there is God, he
carried his own conviction into the millions of readers who were
fascinated by his art. This art was impersonal, precise, even cold,
because it was based on accuracy, on the personal knowledge of
contemporaries, and not evolved like that of Carlyle and Froude
from the depths of his own consciousness.

Macaulay's contribution to the science of history was twofold: the
knowledge, the insight, and the sympathy, such as were not possible
in the revolutionary epoch preceding his, an epoch when, as his pre-
decessors said, "hearts rejoice or bleed" as contemporary events
illume the past with a light "from the flames of Tophet" in Carlyle's
lurid phrase, — this, and secondly, the ripened fruit for present use,
progress along the lines of tradition, the way to preserve and improve
what the fathers had won.

The second of our great names is that of a man who was still more
remote from emotional influence, for he was not a man of affairs, not
a statesman, not an acolyte of the social hierarchy, not even an artist,
but a scholar, an investigator, and a teacher. Leopold von Ranke
revived the past in a spirit which was largely that of an erudite lawyer
without a case. His intimate friend was Savigny, and as for him it is
the totality of law which had to be studied before further advance
could be made, so for Ranke it is the totality of history, carefully

34 POLITICAL AND ECONOMIC HISTORY

studied in the light of laws and institutions, and in the proportions
of each part, that determines the relative values of scenes and events,
that fixes the style and structural concepts of historical description
and reconstruction. When Froude's wild theory as to Henry VIII's
extraordinary matrimonial conduct was questioned by the critics, he
replied in these very words: "The precipitancy with which Henry
acted is to me a proof that he looked on matrimony as an indijperent
official act which his duty required at the moment, and if this be
thought a novel interpretation of his motives I have merely to say
that I find it in the statute book! " Ranke had quite another notion of
how official documents were to be used, and with their use his name
is associated, as is the name of scarcely another.

Macaulay's ultimate criterion wras not found in the edicts and
statutes of rulers, not in the correspondence of princes seeking to
deceive each other and to falsify the record; but in the consonance
of facts with the great events which, linked one with the other and
known by the common sense of mankind, form the chain of history.
Though he made a judicious use of documents he had not the blind
faith in them which makes their devotees ridiculous. Nor had Ranke,
though above all else he was a student of diplomatic correspondence.
It was he who brought the archives of foreign offices into the vogue
they have since enjoyed among historians, his success being due, of
course, to his critical faculties and his sanity; for sane he was,
moderate, modest, and disciplined in the highest degree. Ranke 's
great renown was firmly founded on his use of a remarkable series of
papers, the hitherto unconsidered series of reports addressed to the
Council of Ten by the ambassadors of the Venetian Republic. He
might easily have been dazzled by so unique a find and have exag-
gerated its importance out of all proportion; but he knew thoroughly
the times antecedent and the times consequent to those he was mak-
ing his own, and he fell into no errors. The papers in hand fixed dates,
places, and circumstances, unerringly: they exhibited the quality,
language, and character of the public business so as to permit im-
portant deductions; they illuminated their age in the contemporary
judgments of very shrewd observers. But Ranke never dreamed that
they revealed motives, except by induction: nor that they deter-
mined the great central channel of events. With the plodding indus-
try of an antiquary he felt, groped, peered around and in the obscure
corners of his material and brought forth little particles of fact which,
when properly assembled with the great facts, made possible the
tracing of sequence and the revelation of design.

Philosophically Ranke was inclined to Hegelianism. To the rela-
tions of a people with its habitat he paid less attention than his famous
contemporary Curtius; the work of Buckle and the physical side of
history were indifferent to him. It was the cosmic process with

HISTORY IN THE NINETEENTH CENTURY 35

which he was mainly concerned, the working of a universal spirit
as revealed by outward manifestations. Of this he strove to be a
dispassionate, intelligent onlooker and an accurate, sympathetic
observer; a faithful recorder, whether the record lends itself to litera-
ture or not, and in his hands for the most part it did not. Nowhere
in his voluminous writings is there any passage which rises to the
heights reached by Mommsen in his description of Csesar. Profound
as was the scholarship of the latter, he was an avowed advocate of
imperialism, the cause for which he spent his life, and so at times
his passion lifted him to sublimity : the sober Ranke trod the solid
earth. His was not merely the science of detail like that of Mommsen,
it was an orderly array both of thoughts and of thoughts about
thoughts, as well as a marshaling of facts. For this reason his
attempts at a universal history bear the stamp of creative art. It is as
an historical architect that he becomes approximately an artist; not
in rhetoric, imagination, or enthusiasm. Neither an interpreter nor
a critic, his style is clear, his characters forcibly modeled, his defini-
tions exact. He is bold, but not too bold, for prudence is his forte and
his foible. It is thus that he raises the spirit of each successive age
and reveals, one by one, the hidden springs of action. His philo-
sophical dogma cannot always restrain him, and there are pages of
his which are masterpieces, not only in historical reconstruction, but
in historical divination.

Extremes meet in the world of history as elsewhere. This is seen
when Taine avows himself a disciple of Macaulay, as he virtually does
in print and frequently did in private conversation. Antipodal in
every respect to the Englishman, the Frenchman yet admired Macau-
lay as the representative of everything which France and Taine were
not. The great French historian was an embodied contradiction,
having been justly styled a poet-logician and considered to possess
a philosophic imagination. What he openly admired in England were
its social stratification, its sturdy Protestant common sense, its
passion for liberty and for the traditions of its history, its boisterous,
proud, and energetic spirit. For Latin, Celtic, ecclesiastical, Roman
England he had a contemptuous disdain: it was the England of
Macaulay which was the country of his soul. But he could not there
abide, so pitiless and merciless was his logic. His philosophical career
began in Hegel, passed by way of Spinoza, and ended in a positivism
compared with which Comtism was a weak decoction. His earliest
important paper was the outline of a system whereby the methods of
the exact sciences could be applied to history — and from the effort
to do so there was no surcease until he died. Alone of the pure
materialists, who make emotion dependent on the bodily organism
and on the nervous system, he carried his conviction, amounting
almost to bravado, into the realm of practice. Others have sketched

36 POLITICAL AND ECONOMIC HISTORY

systems, he dared to apply that which he evolved. He was the
physiological psychologist in the laboratory of the world. It goes
without saying that he struggled to the ridge of the universe of man
only to fall over it into a gulf of complete helplessness. Avowedly not
a pessimist, certainly not an optimist, his studied attitude of impar-
tiality turned into a feeling of utter hopelessness and resignation
which he could not conceal and which seemed to give him no con-
tentment; not even that of having achieved.

Yet, as he marched, he incidentally, like Julius Caesar, besieged
and took certain flanking citadels in operations which have made the
course of scientific history much safer and surer. His fierce logic
minimized the idea of common sense as the norm of reference; his
notion of rulers and their dispatches rendered him almost contemptu-
ous of state papers. His favorite sources were contemporary memoirs,
and these he used in great abundance and with consummate skill.
What distinguishes him above others is his careful regard for physical
elements in history and the penetrating glimpses he gets into its
motives by the study of national psychology, clearly mirrored for
him in national art and national literature. His famous doctrine of
predominant power (faculte maitresse) set forth in his splendid essay
on Livy, shows that individuals in a nation are begotten and con-
trolled by primordial forces imposing on all certain common methods
of thought and phases of feeling. Given the island home of a Germanic
race, with its peculiar climate and the rude plenty which nature
supplies, he boldly sketches step by step the course of English thought
and conduct as delineated in her art, her letters, and her institutions.
The race, the home, the period — these, if understood, make history
almost an exact science in the descriptive sense: and in that only, for
prediction is carefully to be avoided; it is not the function of history.

This judgment is based on a passion for the Exact, and is rooted
in the philosophy of sensation to which Taine was addicted. As we
know nothing except by sensation, so we know nothing but phenom-
ena. The only faculties we possess, therefore, are those of analysis
and generalization. Given the French people, its environment, and the
succession of its states, we can note every phenomenon, explain it,
and connect it with its causes and its effects. But we cannot predict;
because, although we note the links we cannot know them nor see
how they are produced: about them we may learn infinitely almost,
but what they are and how they work we may never know. In the
sense of prediction there can never be a science of history, because
for man there is not and can never be any metaphysic whatsoever.

It has been wittily said that in Taine's efforts to follow the mathe-
matical curves of his science, he generally found himself off at a
tangent making delightful excursions in the open spaces of fancy and
of art. Certain it is that his fancy adorns his logic, that in a system

HISTORY IN THE NINETEENTH CENTURY 37

intended to strangle imagination, imagination takes extensive
flights; and, hovering everywhere, induces on the stiffest pages a
highly artistic treatment and an attractive style. Taine's very axioms
are paradoxes : in the French Revolution the orgasms of liberty
beget a despotism fiercer than that of the former days; the fear of
centralization getting on the national nerve created in the republic
an organism more unitary than that of the displaced monarchy;
the classical spirit was the sire of that abstract idealism which under-
lies all the maladies of modern French life. To this sort of inverted
deduction he is perfectly resigned. He is quite as hopeless in the
sphere of the individual man. It is the human beast which still con-
trols and turns the man into the "carnivorous, lascivious" brute we
see about us in such overwhelming numbers; or, at the- other pole,
into the foolish dreamer with a "diseased mind and disordered body."
His detestation for what is loose and disorderly explains what is
perhaps the most famous of his paradoxes, when he declared that
in art he thought the sonata was as beautiful as a syllogism.

These three historians all agree that, admitting what one of- them
would have called the necessitarian, the others the providential
forces of history, — that yet, upon the tissue which they weave, the
pattern is formed by the will of man in the exercise of the choice
which is offered to him and in accordance with his nature. Even so
extreme a freethinker as John Morley admits this. Discoursing of
Burke's analysis of historic forces, he says: ''History has strictly
only to do with individual men as the originals, the furtherers, the
opponents, or the representatives of some of those thousand diverse
forces which, uniting in one vast sweep, bear along the successive
generations of men, as upon the broad wings of sea winds, to new
and more fertile shores." To originate, to further, to oppose, to
represent, an historic force, is quite a sufficient moral responsibility
wherewith to burden even the greatest men.

So far, what we seem to recognize as the basic considerations of
these men in regard to scientific history are the following: The field
must be considered as a unit; the human factors are no longer
heroes, kings, warriors, or diplomats, merely and alone, but the
people as well, in all their activities; in and from such complexity
of persons and operations it appears possible to disengage not relative
but absolute truths and by a suitable system of reasoning to elucidate
principles of action which are the ripe fruit amid the leafy perplexity
of the boughs; the material of history proves thus to be the results
of comparative study of politics above all, but likewise of law,
institutions, language, beliefs, race, and geography. The historian
must proceed with impartial mind, as far as his human limits permit,
to consider and use both the matter and manner of his science, re-
garding society as an organism growing from within under external

38 POLITICAL AND ECONOMIC HISTORY

influences, which act sometimes as checks, sometimes as a stim-
ulus.

I venture to think that whatever be our judgment of his practical
success, the validity of this procedure was even better and earlier
perceived by an American pupil of Heeren than by any of the triad
of uncommon men we have been considering. And to all that they
possessed he added another element, the profound conviction of
God working in history; his reading of "philosophy working by
examples" was "God working by examples." This was George
Bancroft. Contemporary with Macaulay, Ranke, and Taine, he
was their peer as scholar, philosopher, or statesman. He had not
perhaps the imagination of one, nor the style of another, nor the
dispassionate judgment of another. But he had the insight and
sympathy to catch the spirit of his age as Macaulay did — the amaz-
ing circulation of his volumes in all lands proved it. Utopian and
poetic he is, yet his pages neither flash nor dazzle; they commend
themselves by sobriety of argument and solidity of research. His
use of state papers was as extensive as Ranke's, his appreciation of
contemporary memoirs was as keen as Taine 's. But he was neither
indifferent nor agnostic. The son of a pious Unitarian clergyman,
he kept the Puritan spirit untarnished to the end. His instinct for
immediacy, for direct touch with the springs of action, made him
a philosopher from his youth upward. These are his peculiar qual-
ities and permeate all his work. With the discussion goes the lesson:
in all history, truth and justice reign supreme. The writer of history,
therefore, must observe two maxims: (1) Distinguish between
original authority and historical memorials or aids; by the former
we get a fact recorded at first hand, by the second, a decision of
principle or authority; (2) represent every man from his own
standpoint, judge him from your own. These acute and far-reaching
principles were enough in themselves, when conscientiously applied,
to mark his work as original.

His philosophy, however, was quite as original. His book may be
considered as a treatise on the evolution of liberty along the central
axis: this axis is the land designated by Providence as fitted not for
freedom's relative but for its absolute development. Its heterogene-
ous population brought and brings from all other lands the elements
of national character, and by this compulsion of origins the environ-
ment, though eliminating all that cannot be assimilated, retains
all useful elements, incorporating them into an intricate but orderly
whole. Hence Bancroft's studies in universal history, interjected
from time to time as tributaries to the main narrative, were writ-
ten with a consummate skill and a thorough knowledge, which
found him readers in every important tongue and all over the
civilized world. As an exhibit of the divine order, he further holds,

HISTORY IN THE NINETEENTH CENTURY 39

history is an organic unity, inspired by constant forces. Only within
such an organization does the individual secure liberty, since there
alone his faculties of will, reason, and emotion find their develop-
ment in operation, with and against the consubstantial faculties of
other like individuals. Collective man determines the standards of
knowledge and of conduct, and it is therefore only in a democracy
that the possibility of human perfectibility may be realized. This
attitude of Bancroft's mind may be considered as typically Ameri-
can, and as the capstone of the system used and approved by the
nineteenth century in writing history. Either a confidence in the
moral order of the universe and in God as its author is the motive
power of our rulers, the greatest contemporary history-makers;
or we who profess it and elect them to office are vile hypocrites
with a portion among the deceits and mirages of history.

The conclusions here presented will stand the test of the minutest
examination bestowed on the best work by typical masters other
than those we have named. Further, a fair analysis of their theory,
procedure, and art, will, I believe, compel the admission that if the
age has won anything it has won everything. Grounded in the concept
of organic evolution, receptive of all ancillary learning, jealous of its
own field and methods, alert for typical movements and truly great
men, aiming at a kind of representation which is possibly but not
necessarily that of the fine arts, history as now written is scientific,
not as a philosophy of social evolution nor as an exact science of
nature, human or otherwise, but as a practical form of human
biography drawn and modeled in correct proportion and outline.
There is boundless room for advance in supplement, completion,
illustration, but the plan has been sketched and the basis laid. Some
portions of the great advance have even been completely shown to
move in perspective and in color. Either this achievement is all,
or it is nothing; and our descendants must raze everything in order
to begin anew the weary search for truth among the ruins of the past.

THE CONCEPTION AND METHODS OF HISTORY

BY JAMES HARVEY ROBINSON

[James Harvey Robinson, Professor of History, Columbia University, since 1895.
b. June 29, 1863, Bloomington, Illinois. A.B. Harvard, 1887; A.M. ibid. 1888;
Ph.D. Freiburg-im-Br. 1890. Lecturer in European History, University of Penn-
sylvania, 1891-92; Associate Professor, ibid. 1892-95; Acting Dean of Bar-
nard College, 1900-01. Author of The German Bundesrath, Philadelphia, 1891;
Petrarch, the First Modern Scholar; An Introduction to the History of Western
Europe; Readings in European History; and numerous historical papers.]

THE topic assigned to me by the distinguished scholars who planned
the programme of the historical department of this congress is " The
Conception and Methods of History," a theme so vast and intricate
that its mere definition and delimitation would alone more than
occupy the time allotted for this morning's session. I have therefore,
with their permission, confined myself in this paper to one only of
the many lines of thought suggested by the general title; or, rather,
I have given a specific trend to the general discussion, which remains
very general nevertheless. I propose to consider only the rather
singular relations between history and literature, a question by no
means either simple or isolated, but one which is closely bound up
both with the current conceptions of history and with the methods
of dealing with it.

The close alliance of history and literature is so natural and
intimate, reaching back as it does, perhaps, to the very beginnings of
both, that to question its legitimacy seems at once gratuitous and
perverse. It would seem that history, at any rate, had no cause to
complain of the union, since literature, if it be not responsible for
history's very existence, has at least tenderly nurtured it and assured
it both permanence and renown. Without literature history would
never have had its muse, and would at best have led an obscure,
ignoble, and precarious existence. The union has been a long and
happy one. Until recently no one has suspected its perfect pro-
priety — nay, inevitability, or thought of putting asunder what
appeared to be divinely conjoined.

Yet had history been less subservient than it has always shown
itself and more fully conscious of its high mission, it could never have
made the sacrifices of independence and good faith necessary to avoid
constant bickerings and misunderstandings with its mate, for it
would be difficult to find two companions more widely at variance in
their essential spirit and purpose than history and literature. It is
the purpose of this paper to determine the nature and extent of this
incompatibility which may some day lead to a divorce, or at least to
a separation; when, if justice be done, history should be assigned

CONCEPTION AND METHODS OF HISTORY 41

a handsome alimony, since it cannot forego the support that it has
come to rely upon and which moreover it amply deserves in view
of its long and unquestioning fidelity to literature.

For a time, indeed, it seemed that history was being led away by
that formerly potent rival of literature, theology. This was due to
the mighty influence of St. Augustine, who not only turned historian
himself, but induced that gloomy young man Orosius, to compose a
little treatise which by reason of the strong appeal it made to a dom-
inant conviction of succeeding ages served to misdirect history into
thorny by-paths for a thousand years or more. Toward theology
history showed the same ready compliance and uncomplaining self-
abnegation as toward literature; but happily it has regained, or is
rapidly regaining, its independence, although some observers may
still complain that it shows itself at times all too considerate of
theology's feelings.

Deserting a figure which now becomes embarrassing, it is clear
that history, like psychology and politics, is an old discipline which
suffers much from certain ancient associations and prejudices from
which the newer sciences, the physical in especial, are nearly exempt.
It possesses no special terminology adapted to its specific uses, and
historical writers content themselves with vague and uncertain
expressions which are in their nature literary rather than scientific.

Historical students do not have their own books prepared to meet
their peculiar needs, as does the psychologist, chemist, and mathe-
matician. It is true that a few technical works exist, Potthast's
Wegweiscr, Jaffe's Regesta Pontificum, Richter's Annalen, Molinier's
Sources de I'Histoire de France, and a goodly number of dissertations
written by callow aspirants for academic honors. There are, too,
special treatises on the various Hilfswissenschaften, or auxiliary
sciences, of palaeography, diplomatics, lexicography, etc. But in
general the historical writer takes the public into his confidence and
reserves only footnotes and appendices for himself and his fellow
workers, wherein he may slyly elude the eye of the public and of the
publisher; and escaping for the instant from the necessity of con-
ciliating the casual reader, he may express himself with such accu-
racy and scientific precision as he is capable of.

In no other field except that of history is it a reproach to fail to be
"interesting," that is, to catch and hold the attention of at least the
more serious public. Consequently in no other subject do purely
literary ideals so constantly invade the scientific. By literary ideals
I do not of course mean clearness, order, and propriety of diction, or
even vigorous and effective presentation such as might be found in
a well-written geology or history of taxation. I mean, rather, those
stylistic expedients which belong to fiction and poetry, oratory and
the drama, without which these would collapse and fall away into

42 POLITICAL AND ECONOMIC HISTORY

dust and ashes. With history, however, as a science these have
nothing to do. From a scientific standpoint they have worked
incalculable harm in the past, and are, I believe, one of the chief
obstacles in the way of historical progress to-day.

I must confess here that I am by no means confident that many of
you will sympathize with what I have been saying. To some of you
the incompatibility of literary ideals and expedients with conscien-
tious historical writing will seem so obvious as scarcely to merit seri-
ous discussion. You will urge that a great part of our more serious
treatises, especially those which we owe to Germany, are free from
the malign influence which I seem here to be perversely exaggerating.
On the other hand some among you will see in what has been said only
the promise of another dreary tribute to Dr. Dryasdust with whom
Scott vainly expostulates at the opening of Ivanhoe. The following
illustrations will, however, as I trust, meet, to some extent, the quite
pardonable objections to which my general thesis would seem to be
open.

Among the scientific principles which should guide the historical
student, there is none more important than the conception of the
continuity or unity of history. The antithesis of the unity of history
is the inveterate habit of dividing the past into periods, epochs, eras,
and ages, with apparent disregard of the now generally conceded
unity and continuity. Few serious students of general history to-day
would feel tempted to defend any of the schemes of periodizing
which, from the days of St. Jerome down, it has pleased historical
writers to devise. With few exceptions they are so obviously literary
or theological in their origin that they have only an archaeological
interest. We are, nevertheless, still under the potent spell of the older
writers. For instance, Professor Bury, in the introduction to his
excellent edition of Gibbon's great work, says: " Not the least import-
ant aspect of the Decline and Fall is its lesson in the unity of history.
. . . The title displays the cardinal fact that the empire founded by
Augustus fell in 1453; that all the changes which transformed the
Europe of Marcus Aurelius into the Europe of Erasmus had not
abolished the name and memory of the Empire." Here one of our
most patient and exacting scholars discards the proposition that
Rome fell in 476 as a purely literary one without scientific justifica-
tion. But he applauds Gibbon for fixing another definite date still
more arbitrary than the first for its destruction.

While we are ready to acknowledge the law of continuity as fun-
damental, we equally seek excuses for disguising its importance,
both in our teaching and writing. This must be attributed primarily
to the exigencies of effective presentation. The steady and placid
current of a river rarely makes the deep impression that is produced
by a cataract. We have an innate love of the dramatic. Harnack

CONCEPTION AND METHODS OF HISTORY 43

has said that the medieval mind discovered no more venerated
attribute of deity than Wilkiirlichkeit, that is, the seemingly arbi-
trary interference in the general trend of human and natural affairs.
For a thousand years the miracle, not the inconspicuous course of
natural law, riveted men's attention. Our inherent love of "a good
story/' our anxiety to conciliate the interest of our readers and
students, our excusable partiality for effective situations, all com-
bine to put the rather arid and esoteric idea of mere continuity at
a disadvantage.

There are two phases of the continuity of history which should be
distinguished. In its most commonly accepted use, it is the observed
fact that every human institution, every generally accepted concep-
tion, every important invention, is but the culmination of a long
line of progress reaching back as far as we have the patience or
knowledge to trace it. In spite of this truth, it is certainly possible to
establish rather satisfactory periods in the development of any single
human interest. While no doubt the antecedents of the invention of
printing by movable types are many, there is nevertheless a sudden
and abrupt change for the world at large when the printing of a
whole Bible was completed at Mayence in the year 1456. Certainly
we may very properly begin an era in land transportation when a
steam locomotive makes its first trip on a railroad.

But no single human interest is isolated from innumerable con-
current interests. This brings us to the broader conception of the
continuity of history which depends upon the complexity of men's
affairs. A somewhat abrupt change may take place in some single
institution or habit, but a sudden general change is absolutely incon-
ceivable. An individual may, through some change of environment,
through bereavement or a malignant disease, be quickly and funda-
mentally metamorphosed, but even this is extremely rare as any one's
experience will tell him. If all the habits and interests of individuals
are considered, it will be found that only in the rarest cases are any
great number of these altered in any brief period. In the case of
society, no general change has, so far as we know, ever taken place
abruptly. Every reformer knows how hopeless it is to attempt to
alter even a single popular habit.

Now it is obvious that in so far as the historian confines himself
to some single dominant interest in the past, the sharp division of the
subject into periods is not by any means wholly preposterous or
misleading. One can hardly object to periods in the history of
philosophy, in the history of mechanical invention, in the history of
painting or music. When, however, we attempt to deal with the
general history of mankind, sharp divisions are absolutely impossible.
Politically the tenth of November, 1799, marks a period in French
history. At that time, there begins an abrupt and a thorough regu-

44 POLITICAL AND ECONOMIC HISTORY

lation of the relations of the administrative bodies and a happy
adjustment of the finances of the country, both of which exercised
a deep influence upon the French; and yet compared to the sum
total of the interests of the French people at that time which are
susceptible of historical investigation, this revolution was almost in-
significant. Domestic habits, artistic instincts, agricultural methods,
philosophical tenets, popular religious beliefs, none of these were
directly affected by Napoleon's accession to power.

Periods of history have, then, in the past depended for their
plausibility upon the emphasis laid upon conspicuous events or upon
a single class of human interests to the exclusion or neglect of the
great body of normal and slowly changing preoccupations. Behind
the craving for definite periods lay the literary sense rather than the
scientific. Even to-day the historian would be lost were he to be
deprived of such convenient expressions as the Middle Ages, the
Renaissance, the Reformation, the Revolution. Yet all of these,
from the standpoint of the conscientious scholar, are only slipshod
literary subterfuges which we must constantly explain and qualify
until they lose any scientific meaning which they may appear at first
sight to enjoy.

Here we come face to face with one of the chief problems which
historical students must attempt to solve. How far is periodizing
scientifically possible in view of the inexorable continuity in human
affairs which we all know to exist? What shall be substituted for the
old misleading divisions? This matter has received far less attention
than it merits. I have no solution to offer for a difficulty which has
taxed master minds. I can do little more than foster discontent with
the current phraseology — the first step toward better things.

Periods in history may perhaps be best viewed as mere divisions
into chapters, indications on the part of the writer of those stages
in his narrative where the reader may most safely and conveniently
lay down his book for the moment. The reader must not be misled
into thinking that they correspond to real breaks in the course of
human affairs. He should see that they are first and foremost literary
expedients. Moreover, the divisions should be so made as to substan-
tiate rather than shatter the historical continuity. Like the cunningly
devised serial romance, each installment should so end as to avoid any
impression of finality. The reader's suspense corresponds with the
historian's deep-seated sense of continuity.

It is clear that the periods commonly adopted in treating general
European history are open to many serious objections, and there are
indications that they will be gradually discarded or fundamentally
modified. The chief difficulties are perhaps the following: The early
Middle Ages are disassociated from the later Roman history in a way
seriously to hamper the student. For a great part of those ideas and

CONCEPTION AND METHODS OF HISTORY 45

institutions which we roughly class as medieval were fully developed
before the break-up of the Empire. Secondly, there are many reasons
for discarding the period commonly known as the Renaissance, which
is at present the source of the most vicious misapprehensions. The
later Middle Ages, beginning with the Crusades, Abelard, and the
universities, the revival of law studies, the developing Gelduirthschaft,
might without serious danger of misapprehension be regarded as
closing with the Protestant Revolt, the final secession of a consider-
able portion of Europe from the most powerful and all-pervading
institution of the earlier periods. Lastly, the commonly accepted
period beginning with the supposed opening of the French Revolu-
tion in 1789 could with great advantage be extended back to the
middle of the eighteenth century, thus putting the whole democratic
movement in a truer light than hitherto. The French Revolution,
in the sense of a permanent reform of earlier institutions which gave
the example for similar changes in other European countries, was
really nearly complete by 1790; and the emphasis which has hitherto
been placed upon the assembling of the Estates General in 1789 has
served to put the whole situation in a wrong light.

The divisions I suggest make no claim to be definitive or even
novel. They all, however, have the advantage of bringing into pro-
minence the historical continuity of which we may never safely lose
sight.

Should the historian learn to meet the demand that he parcel out
the past into convenient portions without, however, rending its unity
or dividing its substance, he will still have other serious obstacles to
surmount in his task of reconciling our historic knowledge with the
exigencies of literary presentation. Foremost among these difficulties
is that of expressing the degrees of certainty with which various his-
toric data can be established. Every investigator is keenly aware that
our information in regard to the past varies all the way from the most
precarious and suspicious rumors to reasonably reliable reports. We
sometimes have manifold and seemingly accurate accounts of trivial
matters, sometimes only the most meagre and unsatisfactory hints
in regard to great changes and enduring institutions. The literary
spirit, uncurbed in the past, has commonly led the writers, upon
whom the historian must rely, to bequeath us notices of the excep-
tional and startling rather than of the humdrum routine, some
knowledge of which is so essential if one desires to form an adequate
conception of the general conditions and prevailing tendencies of a
particular period.

Few accepted historic facts, whether trivial or momentous, are
susceptible of anything like absolute demonstration. The modern
newspaper is an historic source of unparalleled accuracy and relia-
bility compared, let us say. with Suetonius 's Life of Julius Caesar, Ein-

46 POLITICAL AND ECONOMIC HISTORY

hard's Annals, The Chronicle of Lambert of Herzfeld, Erasmus's Letters,
or the Memoirs of Baron de Marbot. Yet we take the newspaper report
none too seriously, but sedulously discount even its most precise
details. Not long ago I read in a Chicago newspaper a brief biography
of a friend of mine who had been elected to an important academic
position. The writer of the notice lived in the same city with the one
whose life he described, and his information was such that he could
hardly have received it from any one except my friend himself or one
of his family. A report prepared under similar conditions in regard
to Hugh Capet at the time of his accession to power would be regarded
by the historian as a precious document of unimpeachable veracity.
Yet the newspaper biography contained a dozen inexcusable, almost
inexplicable blunders.

The historical investigator is constantly tempted faute de mieux
to take his sources far too seriously. Sometimes he is awakened from
his dogmatic slumber by the appearance of a new source which
exposes the fallacies of one hitherto revered for its accuracy and
conscientious detail. No one, for example, can read the simple and
sincere account of Marie Antoinette as she appears in the Memoirs
of Madame de Campan without accepting it as essentially true, yet
the publication by Arneth of the correspondence of the Count de
Mercy with the queen's mother puts the poor girl in quite another
light. Why should we receive the Life of Charlemagne by Einhard
with greater confidence than the Memoirs of Madame de Campan?
Einhard, as was long ago pointed out, was fascinated by the style of
Suetonius, from whom in his enthusiasm he even goes so far as to
borrow convenient phraseology. Here surely we find an invasion of
the literary spirit, which might easily deflect the writer from the
particular aims which are most esteemed in a biographer.

The historian has, however, no accurate means of representing
his own dubiety, strongly as he may be conscious of it. Much less can
he impart his doubts and uncertainties to his reader. For the singular
details of the death and burial of Alaric, which appear even in our
elementary text-books, we have only the report of the Goth, Jordanes,
an ignorant writer of the meanest ability who lived over a century
later than the events he narrates. He appears to be guilty of the most
palpable errors, in those cases where he can be checked by Zosimus,
who is generally regarded as a trifle more conscientious than the Goth.
Should there not be some way of indicating cleat ly the different
degree of certainty that we enjoy for this event, and, let us say, the
circumstances which accompanied the death of Charles the First of
England or of President McKinley? Portions of the Bible have been
ingeniously printed in several colors, so that the reader may distin-
guish the several sources which have been used in the narrative.
Should a similar system be introduced in our general historical works,

CONCEPTION AND METHODS OF HISTORY 47

we should find that the burial of Alaric, or the way in which Hugh
Capet became king, would appear in faint, scarce legible letters of
whose purport we could not be certain, while the first meeting of the
French Convention or the abdication of Napoleon would be sharply
defined and unmistakable.

One of the most important and hopeful results of the modern
critical spirit is the special attention which for some decades has been
given to the origin and composition of the sources. The monk of
St. Gall occupies a very different place from what he did a century
ago, and no one would any longer rank William of Tyre with Fulcher
of Chartres as an authority for the First Crusade. The development
of Qudlenkritik is perhaps the most important form which the incipi-
ent revolt of history against literature has yet taken. It is the most
scientific phase of historical investigation, both in its spirit and results,
and is now properly considered an essential part of the training for
those who propose to devote themselves to historical work. Yet as a
leaven it works slowly and imperfectly; slowly because of a singular
lethargy, due to manifold causes, which makes the perpetuation of an
ancient error so much easier than its rectification. In a recent work
on the history of classical scholarship one may find the exploded
legend of the portentous year One Thousand appearing once more,
although in the footnotes the author has inserted references to the
various contributions which render the hypothesis wholly untenable.
Sybel, in the second edition of his critical discussion of the sources
of the First Crusade, is encouraged to note that during the forty years
which had elapsed since he issued his first edition most scholars had
come to accept his results, and he expresses the not unreasonable
hope that in the course of another forty years his corrections may
find their way into our popular manuals. This does not seem too
optimistic. Nevertheless, it should be remembered that Voltaire
discarded the notion, which goes back at least to Luther's time, that
the classical Renaissance began with the fall of Constantinople and
the dispersion of the Greek scholars. So tenacious, however, are
rooted historic misapprehensions that only the other day a classical
scholar of repute unhesitatingly elaborated the old view before an
intelligent audience. It will require some decades still before an
explanation of such obvious literary charm will be permitted to go
the way of Pope Joan and of William Tell.

Quellenkritik works imperfectly, as well as slowly, because, at pre-
sent at least, a great part of our historical material lies outside its
range. A few sources, like the life of St. Columban, which, with many
other lives of the saints, has been acutely analyzed by Bernard
Krusch, may be shown to be the result of accretions belonging to
different ages. In the field of recensions and false attributions Quel-
lenkritik is at its best. I think that I am right, however, in saying

48 POLITICAL AND ECONOMIC HISTORY

that'll does not in general attempt to estimate the reliability of
sources of undeniable authenticity as regards their author and unity
of composition.

It is possible that psychology may some time come to the aid of
history. Not only may the study of the psychology of the individual
suggest better methods of dealing with the character, aspirations,
and motives of historical persons, but that new and interesting sub-
section of psychology to which German thinkers are turning their
attention, the psychology of evidence or report, — die Psychologic
der Aussage, — may furnish a scientific method for estimating more
exactly than we have hitherto been able to do the relation between
the sources and the objective facts which they purport to record.

Yet in spite of these hopes history is and must always remain, from
the standpoint of the scientific observer, a highly inexact and frag-
mentary science. This is due not only to the fact that it concerns
itself with man, his devious ways and wandering desires, which can
never all be brought within the compass of clearly defined laws, but
also because it must forever rest upon scattered and unreliable data,
the truth of which we too often have no means of testing. Popular
historiography has in the past been smugly unconscious of this melan-
choly truth, and in writing for the public even conscientious scholars
find themselves suppressing their doubts and uncertainties, conceal-
ing their pitiable ignorance, and yielding to the temptation to ignore
yawning gaps at Avhose brink history must halt even though litera-
ture can bridge them with ease.

Let us now turn from the painful theme of our ignorance, over
which literature has persistently sought to throw a kindly veil, to
the influence which literary motives have exercised upon the content
of history. Obviously this influence must predominate so long as
history depends for its interest and charm first and foremost upon
the story that it has to tell. The anecdote or reminiscence, the start-
ling situation, the signal calamity, the deeds of heroes, the machin-
ations of the wicked, are the primitive materials for history, and are
readily elaborated into literary form. In this type of composition
superficiality and inaccuracy are readily condoned. If the reader is
amused, he is satisfied; he scarcely thinks of asking whether the
information which comes to him easily and pleasantly has any inward
meaning or even whether it is probably true.

The newspapers afford us a daily illustration of history whose
proportion and perspective is determined by literary ideals, — of a
somewhat low order to be sure; but they are the same motives that
determined the selection of events to be recorded a thousand years
ago. The spirit is the same in the Annals of Xanten of the ninth
century and in the New York Times, which lies on my desk as I
write. From the former we learn that on the fourth of February, 848,

CONCEPTION AND METHODS OF HISTORY 49

toward evening, it lightened and thunder was heard. That in 852
" The steel of the heathen glistened ; excessive heat, a famine followed.
There was not fodder enough for the animals. The pasturage for the
swine was more than sufficient." The Times tells us on its first page
that on September 11, 1904, at two o'clock in the morning a rat bit
a baby in Jersey City. On the same day, during the morning service,
a bad man set off a firecracker in Westminster Abbey, and a pigeon
lighted on the minute-hand of a clock in York, Pennsylvania, and
remained there full fifteen minutes.

Until within a hundred years or so history was frankly narrative,
except when it bethought itself to be instructive. Under the latter
term may properly be included both the moral and theological inter-
pretations by which writers sought to enhance the dignity of what
would otherwise seem a mere story and bind together into an edifying
whole the scattered episodes and arid annals which constituted their
knowledge of the past. The moral, even the theological, attitude
toward history has by no means disappeared. The admirable address
prepared by Henry C. Lea for the last meeting of the American His-
torical Association is still fresh in the minds of American scholars.
It is directed against Lord Acton's defense of an immutable moral
standard, which should be ever before the mind of the historian and
guide him in judging the past and determining whether it be good or
evil. Dr. Lea discovers no historic basis for such an assumption.
Historically, good and evil are and must always be relative. This is a
conclusion toward which scientific study of the past has for some time
been tending. When it is generally accepted, it will do much to eman-
cipate the historian from some of the most serious disabilities under
which he has labored.

Since the middle of the eighteenth century new interests other
than the literary, moral, and theological have been rapidly develop-
ing, which have exercised a remarkable influence upon historical
research, radically altering its spirit and aims, and broadening its
scope. Montesquieu's Spirit of Laws reviews the past with the purpose
of establishing a purely scientific proposition, namely, the relativity
of all human institutions, social, political, educational, economic,
legal, and military. The discussion attending the drafting of the first
French constitution served to stimulate an interest in constitutional
history which has never flagged. Indeed, to not a few scholars this
particular branch of research appears to constitute history par
excellence. Yet even in this chill region one may discover now and
then a glow of warm partisanship, which suggests that science has
not yet done its perfect work. But we need Freeman as well as
Stubbs, and Waitz as well as Fustel de Coulanges.

Political economy has wrought a still more radical change in the
content of history than has the constitution-making of the last

50 POLITICAL AND ECONOMIC HISTORY

century. It emphasizes a wholly new group of factors in the life of
mankind, to which but the scantest attention was given before the
nineteenth century. It has brought out clearly the crudity and super-
ficiality of many ancient and long approved explanations of historical
phenomena and substituted new solutions which have become gen-
erally accepted. Without conceding the arrogant claims sometimes
made by political economy to be able to explain everything in
the past, few historical students will question its power to explain
more than any other branch of social science. Greatly as the modern
attention to institutions and to economic conditions has served to
enrich the field of historical research, it is clear that they leave out of
consideration matters far too important to be neglected, educational,
religious, aesthetic, moral, and intellectual. These will doubtless
continue to form the subject-matter of special disciplines, where they
may be developed with every attention to technical detail. Yet
experience has shown that things so intimately connected cannot
be artificially separated without the danger of grave loss. Both
psychology and the history of religion have successfully shown the
constant interconnection and interaction of all spiritual and intellect-
ual phenomena, for it is the same individual who is at once religious,
lesthetic, moral, and intellectual. May there not then be a new task
for the historian who, while taking advantage of all that has been
contributed by those who have devoted themselves to political, insti-
tutional, and economic history, understanding these in their broadest
sense, shall write a history of the inner man, his range of knowledge,
his tastes, his ideas of the world, and of himself? This would have little
in common on the one hand with the older narrative history, domi-
nated as it was by literary ideals and given to moral applications, or
on the other hand with technical departments of historical research,
of which there is an ever-increasing number. There are abundant
indications that the history of culture is now outgrowing its rather
ill-starred infancy and will some day dissipate the gloomy forebodings
with which certain distinguished prophets cast its horoscope.

The foregoing brief sketch of the relations of history to litera-
ture, rude and incomplete as it is, enables us to foresee the probable
outcome of the tendencies which have been noted. Scientific history
is opposed in spirit and method to literature, which has its own
lofty ideals, but ideals which should never have been imposed on
history. History is emancipating itself from its long servitude, but
easily falls back into its former bondage. Yet the historian will more
and more boldly appeal to his own fellow scholars, as do the repre-
sentatives of other sciences; and so freed from the restraints imposed
by the tastes of the public and their want of special knowledge,
history will develop a technical literature, the prerequisite of pro-
gress. In time this will react upon popular history, which will slowly

CONCEPTION AND METHODS OF HISTORY 51

become scientific in the sense that modern popular chemistry or
zoology is scientific. For the scientific has become during the past
century a dangerous rival of the literary interest.

The progress of history as a science must depend largely in the
future as in the past upon the development of cognate sciences, -
politics, comparative jurisprudence, political economy, anthropology,
sociology, perhaps above all of psychology. It is these sciences
which have modified most fundamentally the content of history,
freed it from the trammels of literature, and supplied scientific canons
for the study of mankind. They are the auxiliary sciences of history
in a far deeper sense than are paleography, diplomatics, or even
philology. The sciences relating to mankind will hereafter dominate
the work of the historian. His task, it will be seen, is nothing less
than the synthesis of the results of special sciences, a task so grand
and comprehensive that it will speedily wean him altogether from
literature, for no poet or dramatist ever set before himself a nobler
or a more inspiring task, or one making greater demands upon the
imagination and the resources of expression than that which now lies
before the historian.

SECTIONS A AND B
HISTORY OF GREECE, ROME, AND ASIA

SECTIONS A AND B
HISTORY OF GREECE, ROME, AND ASIA

(Hall 3, September 21, 10 a. TO.)

CHAIRMAN: PROFESSOR THOMAS D. SEYMOUR, Yale University.
SPEAKERS: PROFESSOR JOHN P. MAHAFFY, University of Dublin.

PROFESSOR ETTORE PAIS, University of Naples. Director of the

National Museum of Antiquities, Naples.
PROFESSOR HENRI CoRDiER,EcoledesLanguesVivantesOrientales,

Paris.
SECRETARY: PROFESSOR EDWARD CAPPS, University of Chicago.

THE Chairman of this Section, Professor Thomas D. Seymour, of
Yale University, when introducing the speakers, called attention to
the fact that "never before have the minds of scholars been less
prejudiced in the examination of the relations between Greece and
Asia. The most enthusiastic Hellenist no longer feels bound to claim
that by a sort of parthenogenesis all culture had its rise on Greek
soil, with no seed sown or influences received from early civilizations.
And, on the other hand, the Orientalist has learned that the achieve-
ments of the Greeks and Romans are not to be explained by an
examination of the early influences which they received. As in the
case of an individual, the personal element is paramount, but the cir-
cumstances of infancy and early childhood may be as important and
interesting in the case of a nation as in that of an individual. The
material for our joint discussions has been accumulating rapidly, and
we are just beginning to hear one of the most important witnesses,
— Crete. Though many old doubts and questions are settled forever,
many new questions arise and call loudly for an answer."

THE EXPANSION OF GREEK HISTORY

BY JOHN PENTLAND MAHAFFY

[John Pentland Mahaffy, Professor of Ancient History, University of Dublin,
since 1871. b. Chaponnaire, on Lake Geneva, Switzerland, 1839. Trinity
College, Dublin, B.A. 1859; M.A. 1863; Fellow, ibid. 1864; D.D. ibid. 1886;
Mus.D. ibid. 1891. Author of Commentary to Kant's Critique; Social Life in
Greece from Homer to Menander; Rambles and Studies in Greece; A History of
Classical Greek Literature; The Story of Alexander's Empire; The Greek World
under Roman Sway; Problems in Greek History; The Empire of the Ptolemies.]

MR. CHAIRMAN, AND GENTLEMEN, — I feel it no small honor to be
selected for the prominent duty of delivering an opening address on
this momentous occasion. For we may call it a great intellectual mar-
riage of Europe with America, to which all the sciences, both histor-
ical and positive, are invited with equal hospitality. And thus while
some are sending their inquiries across vast realms of space, others
like ourselves are reaching back across millenniums of time; while
some are probing the constitution of the minutest atoms of matter,
others like ourselves are exploring the rudiments of human society.
Both studies are essential to the progress of this our twentieth cen-
tury. For if the civilized man differs broadly from the savage, in that
he is in process of understanding and controlling the forces of nature,
he differs more essentially perhaps in this, that he strives with eager
interest to comprehend the annals of the past — the long struggles,
the successes, the failures of our forerunners to emerge from a con-
dition a little higher than the brute into a condition a little lower
than the angels. This vast study is of necessity to be prosecuted in
compartments, if for no other reason because our race has been
fertile in devising languages, wherever human society began its organ-
ization. Their number is enormous. The best judges, Terrien de la
Couperie, Archibald Sayce, have told me that there are not less than
eight hundred known, not to speak of the hundreds that may have
disappeared. And without knowledge of his speech, we can gain but a
superficial knowledge of the speaker. Our happy lot in this Section is
to be concerned with Greek — not only the most perfect of all the
organs of communication ever devised by man, but one in which our
knowledge has in this generation attained an enormous expansion, in-
somuch that our investigation of that people and its civilization has
been as progressive as any study that could be named. The number
of new texts discovered is such that no living man can know them all.
Each one of us that has explored has added scores of new words to the
Greek Lexicon, dozens of new facts to our knowledge of the Greeks;
and so we may say with truth, that while the literature of the other
great classical language, Latin, has stood still, or gained but trifling
increment, Greek is growing by leaps and bounds, giving the lie to the
narrow scientist, who would thrust it from its high place in our edu-

THE EXPANSION OF GREEK HISTORY 57

cation, because it has been branded in the false jargon of his crowd as
a dead language. My duty here is to show you the relations which
have grown up between Greek political history and the sister studies
in our day; how fruitful researches and explorations have told upon
our knowledge of Greek history, and more especially how the cen-
turies that went before and those that followed after the golden age
of Greek culture are emerging both from the gray dawn of obscure
origins and the lurid twilight of confused decadence, into the order
and proper sequence of rational history. In attempting this huge
task I hope I may gain your earnest attention. I know you will
vouchsafe me your generous indulgence. I may also forewarn you
that, for obvious reasons, Professor Pais, my colleague in the matter,
has agreed with me that each of us will prosecute that branch of the
subject which he has made the special study of his life.

When I was a boy and first plunged into Greek history, the begin-
ning of our knowledge was the Iliad of Homer. We were taught by
Niebuhr, and still more explicitly by Grote, that all the legends of
the Greeks concerning their earlier settlements and expansion were
the mere play of fancy, quite possibly pure inventions, in any case
only admissible into history as a picture of the national mind in a
certain stage, at a certain epoch. Even the facts narrated by Homer
were within the range of fiction; the society which he painted was
only real in so far as the poet reflected his own times and the life of
men around him. And no doubt Grote and his school were perfectly
right that the uncorroborated statements of legend by a poet, nay,
even the early genealogies which commence with the gods, are but
the wreck which the stream of time leaves about some chance obstacle
that succeeds in staying its course. Thus we arrived at the skepticism
of Sir George Cox and Sir George Lewis, in my youth very active vol-
canoes, but now happily extinct,, that no Greek history is credible
till after the middle of the seventh century, B. c. ; and I myself have
contributed my share in showing that the early Olympic Register
was not the contemporary and continuous record of early facts, but
the fabrication of a learned theorist. And this destructive criticism
of mine, bowed aside as a paradox when it appeared, is accepted by
the recent historians as a pretty obvious deduction from our facts,
either with or without the mention of the critic who first ventured to
declare it.

But have we now no corroboration of our body of early Greek
legends, and if we have, from whence did we obtain it? The man,
Schliemann, who opens the last epoch of research into early Greek
history, was not a scholar, or a man of literary habits, but a man of
enthusiasm for Homer, and of boundless energy in carrying out his
mind. He had shown his ability by making a large fortune early in
life out of nothing but his brains, and when I tell you that he made

58 HISTORY OF GREECE, ROME, AND ASIA

most of it in this country, and as a stranger, you have at least one
measure of his talent which you will easily appreciate. He had the
singularity to devote half of that fortune to exploring the Homeric
sites, and thus proving the historic value of the Iliad and Odyssey.
And he went to work with the spade, at first ignorantly, for he dug
holes, which is the most destructive form of inquiry known, instead
of taking off layers or strata of earth, as he learned to do in his later
years. He found less than he expected or believed, so far as he hoped
to find and thought he had found the actual tombs of Agamemnon
and Clytemnestra, or any direct evidence of the Homeric story. But
when Homer speaks of the fortified Tiryns, the much golden Mykense,
the sacred Ilion, Schliernann found far more than he had ever divined;
for he disclosed to the astonished Hellenists of his day a whole rich
primitive civilization, which subsequent exploration found to be not
peculiar to Argolis, but spread over most of Greece, being carried by
trade oversea across the ^Egean,and recurring even in distant Egypt.
This Mykensean civilization, as we now call it, is known by its
handicrafts and arts, above all by its pottery, its gold and silver orna-
ments, its beehive tombs, its elaborate palaces. And so wide were its
ranges in transmarine commerce, that we have found not only
Egyptian scarabs, but ostrich eggs from inner Africa, and Baltic
amber among its treasures. Three questions were immediately raised
concerning this large discovery: first, how old was it? secondly, was
it identical with Homer's civilization, or not? And if not, was it
indeed Greek? Its great age was settled not merely by the archaic
character of its art, and its very small use of iron, but still more
clearly by the occurrence of early Egyptian articles, dating from about
1400-1200 B. c., and showing that intercourse of Egypt with Greece
was far older than the Homeric age. There was also this negative
evidence, which I alone had pressed on Schliemann before he com-
menced his work. I inferred from the total ignoring of Mykenae by
yEschylus, whose tragedies ought to have been enacted there, that
in his day the practical knowledge of the city was gone, and that it
had already then been long destroyed. I forewarned him that he
would find there no Greek coins or inscriptions. He found no writing
of any sort whatever. But as we now know that in the old Cretan
remains the inscriptions were on clay tablets, which are easily de-
stroyed by exposure to rain, I think it possible that he may have
overlooked some such documents.1

As regards the correspondence of the remains with Homeric
pictures, the contrasts seem to me rather greater than the likenesses.
The armor was undoubtedly the model of the Homeric weapons; the
tombs have some Greek features; but on the whole, the question
whether the epoch was one of purely primitive culture, or of some-
1 That is Mr. Arthur Evans's opinion also.

THE EXPANSION OF GREEK HISTORY 59

thing earlier passing into early Greek culture, was left very doubtful.
A better knowledge of the Troy that Schliemann has excavated, and of
the remains of Cnosos in Crete, now in the act of being recovered
for us by the zeal and skill of Mr. Arthur Evans, have thrown much
light upon these incunabula of Greek history. The most interesting
point regarding the Trojan work recovered by Schliemann was its
great rudeness, when compared with that of Tiryns and Mykense.
For the Homeric poems had led us to believe that the culture of
Troy was fully as advanced as that of the invading Greeks. We owe
to Dr. Dorpfeld the further discovery that the Ilios of Schliemann
was not the sister in time of Mykense, but an older and deeper stratum,
and probably one thousand years earlier. The Mykenajan stratum,
through which Schliemann had pierced without recognizing it, was
found on a higher level all round Schliemann 's excavations, and was
found also in every way to correspond to the Greek work of the
Mykensean period. This proved that an enormously old culture had
taken possession of the shores of the Mediterranean, and that even
the Mykensean inherited from a long series of spiritual ancestors the
culture which seems to us so archaic.1 The discoveries of Mr. Evans
not only tended (as usual) to corroborate the general features of the
Greek legends about King Minos, for example, his sea power, shown
by his unfortified palace near the seaboard, but proved that at this
early stage two hitherto unsuspected forms of writing, one in rude
pictures, the other in linear script, were in use in Crete, and doubt-
less therefore throughout the coasts of the eastern Mediterranean.
If these texts, scratched or impressed upon clay tablets, and certainly,
I think, not Greek, are ever deciphered, we shall know more clearly
the character and the provenance of the race that inhabited these
coasts and islands during the second millennium before the Christian
era. In my opinion that race will prove to be non-Hellenic, and even
non- Aryan, so that the boast of the Athenians and other Greeks that
they were an indigenous race will be once more refuted.2

But here the historian has recourse not to artistic remains, to pot-
tery, or to building, but to the evidence of the sister sciences of anthro-
pology, and still more of linguistics. The former science has yielded
but poor results. The variety of the physical types of skulls is such
that we can only infer a great mixture of races in Greece, without the
predominance of either Aryan or pre-Aryan types. Such at least is

1 Under the lava of a prehistoric eruption from that great submarine and still
active volcano, of which Santorin and Therasia (the ancient Thera) form the
outward slopes, there were found thirty years ago the remains of what was aptly
called by the French a prehistoric Pompeii — human bones within rude houses,
with remains of rude pottery, and even gold ornaments.

2 But I must warn you that excellent authorities, Rohde, Reisch, think differently,
and think the Mykenaean builders the direct ancestors of the Homeric Greeks. On
the other hand Mr. Ridgeway, in his most remarkable unfinished book, The Early
Age of Greece, while he maintains that the earlier race differed materially from the
Acha?ans of Homer, — he calls them Pelasgians, — yet regards them as Aryan.

60 HISTORY OF GREECE, ROME, AND ASIA

the conclusion of Paul Kretschmer, whose work on primitive Greece
embodies most of the latest knowledge.1 The results of linguistic
inquiry are far more important. Starting from the fact that there are
elements, in the old Greek that we know, still inexplicable, that there
are formations of place-names which have all the air of being non-
Aryan, Kretschmer has compared the relics we have of the languages
of Asia Minor, excluding those of the Aryan type. His conclusion is
that inter-related languages of a non- Aryan type were spread all over
the seaboard of Asia Minor, and that the features of these languages
which remain are also to be found in Hellenic place-names.2 Hence
the science of language warrants us in assuming that Aryan invaders
found all over Greece and Asia Minor an earlier population with, if
not unity, at least kinship, in the grammatical structure of their
speech, and therefore probably not primitive or savage, but provided
with some degree of civilization. Hence the earliest Greek culture,
even if Cretan and Mykensean work were Greek, may be regarded as
a composite civilization, and the fascinating task of future inquirers
will be to assign to the different layers of population their respective
shares in the great result. In such investigations all the sister sciences
must lend a hand to the historian — linguistics, anthropology, archieo-
logy, and above all he must possess that highest quality in any scien-
tific man, the imagination which combines facts, which strikes out
theories, which makes research methodical by bringing it under fixed
and leading ideas, which turns the valley of dry bones into the habita-
tion of living men. The ancient times of Greek history are therefore
a progressive study, in the truest sense of the word. Grote discarded
the myths as evidence, he even ignored the living testimony of the
everlasting hills and the many voices of the ever-intruding sea, and
wrote his great work in a London study. E. Curtius, a generation later,
equipped himself by long residence and travel in the glens and fiords of
Greece, and if in political understanding he was far inferior to the
English statesman, in picturesqueness, and in his feeling for the real
life behind the myths, he made a long step in advance. Another gen-
eration passes by, and we have, among many able books, the newest
and best in the history of Mr. Bury. His opening chapters seem cen-
turies ahead of Grote, generations ahead of Curtius. For in the last
twenty years excavations in many parts of Greece have added masses
of new evidence. Egyptology and general linguistics have contributed
their share, and as the force of genius in the individual brings up from
the darkness of the sub-conscious self the long-forgotten lessons of
the past, so the power of Minos, the long succession of human homes
on the hill of Ilion, the builders of the great fort of Tiryns, are rising
from prehistoric night into the morning of Greek history.

1 Einleit. in die Gesch. der griech. Sprache (Gfittingen, 1896), cap. n.
* Op. tit. p. 292.

THE EXPANSION OF GREEK HISTORY 61

Let us now return from our odyssey into Cimmerian darkness,
and from visiting the shadows of departed heroes, to the shores of
historic Greece, and inquire whether modern genius and modern
industry have not added something to that more precise knowledge
which we owe to the literature of the classical epoch. And here, too,
we shall find that the gain is momentous, and the promise of future
increment fair beyond our hopes. But that is so because our whole
method of investigation has been enlarged, and because we have
developed the relations of Greek philology and history to many
kindred researches. We do not indeed grow weary of analyzing and
commenting on our Greek historians, though that process has been
likened to the squeezing of the last drops of juice from the exhausted
lemon. But since we learned from our early travelers, notably from
Colonel Leake, that Greek history must be studied in Greece; since
the French government, more than half a century ago, took the lead
in founding an archgeological school at Athens, the spade and the
measuring-rod have been applied to verify and correct the narratives
of Herodotus, Thucydides, and Xenophon. A crowd of inscriptions
have been extracted from the soil, or from medieval walls into which
they were built. The modern writer dare not put his pen to paper
without searching the great collections of these inscriptions, to which
the learned journals are perpetually adding fresh material. For in
imitation of the French, the Germans and the Greeks have endowed
their archaeological schools, and produce their Transactions in Athens.
The English and the Americans have followed suit with private
enterprise, and so a large body of experts has been let loose upon the
country, and has added to the capital enterprise of Schliemann at
Mykense and Argos many careful investigations at Athens, Olympia,
Delphi, Delos, Megalopolis, the Argive Herseum, and a dozen other
sites. All these have yielded us topographical, historical, and social
evidence. Our difficulty now is not only to find, but to compass the
evidence which is accruing, and which is scattered through a number
of learned journals, such as the French Bulletin de correspondance
hellenique, the German Mittheilungen des archeologischen Instituts,
the English Journal of Hellenic Studies, to mention but three out
of many. The men who have by universal consent done most for the
better understanding of Greek history are not the Greek professors
at home, but the brilliant directors of the French and the German
schools, who have been able to indulge their genius with ample
appointments and with the experience of many years of splendid
industry. It is of course impossible for me in this general discourse
to turn aside to the particular inquiries which have thrown light on
particular points of Greek history. The excellence of these studies
consists in their minute and accurate detail. I need only quote, as
specimens, the masterly analysis of the Greek theatre derived from

62 HISTORY OF GREECE, ROME, AND ASIA

a comparative study of divers extant remains by Dr. Dorpfeld ; the
same author's rehandling of the famous topographical chapter in
Thucydides concerning the surroundings of the Athenian Acropolis,
the demonstration by Mr. Grundy that Thucydides could be as fallible
as any ordinary writer in his account of the bay of Pylos, of the siege
of Plataea, or in his copy of a now extant inscription.

If you want to estimate the results in an easy and obvious way,
compare any guide-book to Greece of ten years old with the newest
editions of the same work. Nothing now gets antiquated so quickly.
But if you want larger and more splendid evidence of what recent
research has done for our knowledge of Greece, read Mr. Frazer's
monumental edition of Pausanias. Twenty years ago, nay, even ten
years ago, such a work would have been impossible. Nor could it have
been done at any other time ever since the decadence of the Roman
Empire. But now Mr. Frazer has been able to go over the cities and
monuments described by the old tourist and antiquary of the second
century, and gives us, in most cases, if not in all, verifications and
illustrations from the excavations of our own day.

It might be imagined that these discoveries affect almost exclu-
sively our knowledge of the art side of Greek life. That is not so. The
many recovered inscriptions tell us of wars and of treaties, of laws
and of rites, and of the social life of the people which we can restore
in the ruins of their temples, their theatres, and their homes. And let
not the title of this Department, Political and Economic History, blind
you to the fact that without the social life and the art of a people
history will ever be dull and lifeless. The Hermes of Praxiteles, the
bronze charioteer of Delphi, the great tomb of Sidon — all these are
as important in understanding Greek history as are the constitution
of Athens or the currency of Rhodes. We live, therefore, in an era
of expansion even of the golden age of Greece, an expansion in depth,
or in quality of knowledge, even more than in the multiplication of
facts, such as Europe has not seen since the Renaissance, and such as
may never again recur, when the present still untouched sites have
been disclosed and the testimony of statues and of stelse has been
exhausted. But of this limit there is no prospect in our generation, or
perhaps for half a century to come.

I have not yet said one word concerning our gains of the last
decade in the matter of Greek literature, which is, after all, the
department of human culture in which, most of all, the modern world
owes great and everlasting obligations to Hellas. The types of the
epic, of the lyric poem, of the drama, of the prose dialogue, of the
oration, have been fixed by the Greeks forever, and shown to us
in specimens of a perfection seldom equaled, never excelled. If
I have set down our gains in this literature last, it is not that their
importance is not paramount, but because the manner of their

THE EXPANSION OF GREEK HISTORY 63

recovery leads us to the third part of my discourse — the extension
of Greek history into later times and other societies than those of the
golden age; for the consideration of our gains will naturally lead
us to the manner and method by which these gains were made. And
in the first place, what have we acquired? In actual texts complete,
or partially complete, we now have the Mimes of Herondas, dramatic
sketches of low or vulgar life, such as the Dutch Teniers has given us
with his brush. We have most of the Constitution of Athens, a tract
ascribed to Aristotle and often quoted as such by Plutarch. We have
some of the Odes of Bacchylides, the lesser contemporary of Pindar,
and, what is far more valuable, among them specimens of the dithy-
ramb, a form of poetry much cited by the ancients, but never under-
stood till this discovery. We have the Persians of Timotheus, another
to us novel form of poem composed for an elaborate musical illustra-
tion, somewhat like the Italian opera, and rivaling the texts of that
opera in its tenth-rate quality. But when music is fitted to verse, it is
but seldom the setting of perfect music unto noble words, of which
the poet dreams. One partner becomes predominant. Let us hope
for the sake of Timotheus, for the sake of the public of whom he was
the idol, that in this case, as in that of Richard Wagner, the music
was the real attraction. But I must refrain from criticism. The works
just named are all incomplete or shattered in some part, for the
exterior of the papyrus rolls on which they were written could hardly
fail to have been affected by long centuries of burial or by the hands
of ignorant finders. But they give us enough to judge both the works
and their authors. Of lesser fragments, stray pages, single scenes of
plays, or even of music-hall farces, elegant extracts, epigrams, we
have a whole library. Almost every known Greek author, and a great
number of unknown, are represented in these newly acquired texts.
It is of course known to you all that this treasure comes from
Egypt, not Greece, and was preserved by the Greek-speaking popu-
lation of that important branch of Hellenism, from Ptolemaic to late
Roman days. The life of these Greek settlements in Egypt, with their
language, their books, their traditions all from Greece, are now a
vital chapter even in the political and economic history of the nation.
Among the literary remains are innumerable business documents,
official orders, every-day correspondence, copies of wills and of
contracts — all Hellenic in language and origin, and pointing back
to the classical culture of the mother country. Here indeed we have
a perfectly unexpected and notable specimen of what the conquests
of Alexander produced in foreign lands — of that Hellenism which is
at last commanding the attention of classical scholars. For there
is every reason to think that these Greek settlements, in the midst of
a native population, were not exceptional, but typical of what Alex-
ander projected and his followers effected all over the East. Not only

64 HISTORY OF GREECE, ROME, AND ASIA

on the shores of the Euxine, where there were long since Hellenic
cities, which communicated with Greece by sea, but all through the
body of Asia Minor, notably in Syria and Palestine, in Mesopotamia
along the Tigris and Euphrates, nay, even on the Oxus, and within
range of the Turanian steppes, there were established settlements of
Greek soldiers and traders, with privileges to attract them there, but
also with the duty of guarding the new Greek civilization of the
East from mountain robbers and from national revolts. I know not
what the possibilities are of successful excavations in Syria — on the
site of Antioch ruined by so many earthquakes, of Apamea, of Baalbec,
of Gerasa, in the Decapolis of Judaea. But of this I feel sure, in that
crowd of settlements made under the Seleucid house, both of Mace-
donians and of Greeks, the evidences we should find would be of
the same character as those of the Fayum. We should find that the
Grseco-Macedonian settlers, including the Persians, who were dis-
tinctly admitted to the ruling caste, lived in the midst of the ab-
origines, trading with them, intermarrying with them, quarreling with
them, while they were protected from absorption by their Hellenistic
speech, and by special courts conducted according to Hellenistic law.
The discoveries of the last fifteen years, inaugurated, I am proud to
say, by the two volumes of Petrie Papyri which it was my unique
good fortune to lay before the world, have manifested to us an aspect
of the Hellenic mind of which we knew but little in former days. True
it was that these outlying settlements, living as the Hungarians do
among the Slovaks, or the Germans among the Poles, kept up their
aristocracy of intellect, as well as of race, by the constant reading of
the old Greek masterpieces. It is through the fragments recovered
from them that we now know what the texts of Homer, and Pindar,
and Euripides, and Plato, and Demosthenes were like in the second and
third centuries before Christ; and let me add that if there is ample
evidence of the considerable rehandling and reediting of the Homeric
text in the second century B. c. which tradition long since ascribed to
the great Alexandrian critics, we have also indisputable proof that
in the rest our medieval copies represent with excellent fidelity the
great masters as they were read in these early books. It is not, how-
ever, the establishing of our old faith in the great classics against the
suspicions of tampering and of corruption which concerns me here.
It is rather the new and interesting fact in this fresh appendix (if I
may so call it) to our Greek histories, that of these people we have
not only the classical books they read, we have the papers of every-
day life. We now know how they made their marriage settlements
and their wills, their loans and their contracts, their reports and their
complaints; we have now an insight into their official systems of
taxation and administration, their banking and their general finance.
These are commonplace matters. These letters and reports cannot be

THE EXPANSION OF GREEK HISTORY 65

called literature. But they are history, and an expansion of Greek
history of the highest interest. There were no doubt Egyptian fea-
tures, as there were Persian features and Syrian features elsewhere in
this civilization, but the whole of it bears the impress of the one great
nationality which stamped it upon the world. It has been well
shown by more than one modern historian 1 that even the oriental
reactions against the West, even the Indian and Parthian monarchies
that repudiated Hellenism, owed a great part of their strength to the
new life which Alexander brought into the disorganized systems of
the East; it is perhaps more remarkable that a Prussian government
official, examining the bureaus and the red tape of the Greek papyri,
can tell us that all the official life of our own day, with the exception
perhaps of the transmission of checks through private hands, can be
found among the Greeks of two thousand years ago.2 It is an inherit-
ance from them through the Roman Empire, which few of us had
suspected. Not till we unearthed the clay figurines from Tanegra did
we learn how the ordinary Greek lady dressed, in contrast to our
knowledge frqm many ideal statues by great artists how the Greek
goddess — undressed. There is as great a contrast between the
stately periods of the studied orator and the curt indorsements of the
overworked official. I heard not long ago a great English banker,3 with
the self-complacency of his race, attribute the invention of banking to
his earliest predecessors in London. He might have learned from the
very name " Lombard Street " that he was wrong; he may now learn
from a whole literature on the money and corn banks of Egypt, that
there were many " brave men before Agamemnon."4

When we consider the effect of all these studies and discoveries
upon the general influence which Hellenic civilization has had, or will
have, on the culture of the twentieth century, we must be prepared
to meet the objection more widely felt than formulated, that all this
study of lesser and later Greek history is likely to dilute the strong
impression which the noblest and best epoch made upon our fathers.
There was then a strict selection of what was pure; all that was
supposed degenerate and second-rate was neglected, and this is why
Greek culture has maintained its supremacy till the present day.
Why study Polybius or Diodorus when we have Thucydides and
Herodotus? Why study Callimachus when we have Pindar? Are not
a few acknowledged masters sufficient to maintain the Greek in-
fluence on modern culture? These objections are true, indeed, but
only true from a special standpoint. For the education of the young
in any literature, we are bound, by natural selection, to choose first

1 Niese, Gesch. des Hellenist. Zeitalters ; Bevan, The House of Seleucus.

2 Preisigke, " Griech. Pap. Urkunden u. Bureaudienst im griech. rom. aegyp-
ten," Archiv fur Post u. Telegraphic, 1904.

3 Sir John Lubbock (now Lord Avebury).

4 Vixere fortes ante Agamemnona. Horace, Od. iv, 9, 25.

66 HISTORY OF GREECE, ROME, AND ASIA

the great masterpieces. That is a universal rule in this our mortal
life, where our powers of comprehension are very limited. If we
carry it to its extreme limit we arrive at the word of Scripture, or of
the Koran : " Seek first the kingdom of Heaven, and its righteousness,
and all other things shall be added unto you." But if our education
is to comprehend not merely the perfect form of Greek literature,
but the realities of Greek life; if the complete history of that people,
whose world-influence waxed rapidly according as the perfection of
its artistic life began to wane, be our object, then the view of the
schoolmaster and the grammarian must make way for larger con-
siderations. Nay, more, this narrow view has misled the world upon
the very issues raised by the pedants. What is decadence, and what
is inferiority? We will all concede that there is an inimitable grace
in the dialogue of Aristophanes, which even Menander could not
equal, but are there not other perfections in Greek life? The two
masterpieces, for example, that stand out in the Greek sculpture of the
Louvre in Paris are the great Nike" of Samothrace, and the exquisite
Venus of Melos. They both come from the post-classical age. The
marble sarcophagus from Sidon, which commemorates some com-
panion of Alexander (probably that Philokles who was Sidonian
King, and High Admiral to the first Ptolemy), is the most splendid
and perfect specimen of that kind of art we have yet recovered.
That, too, is post-classical. The purist schools had banished from their
course, as a writer of decadent Greek, the immortal Plutarch, whom
even Shakespeare thought worthy of translation to his stage, with
hardly a word of alteration. And when these people conceded to us
Theocritus, the great father of the pastoral idyl, as a master, probably
because of his difficult Doric dialect rather than his novel subject,
why did they conceal from us the exquisite Euboeic adventure (his
seventh discourse) of Dion Chrysostom, or the late born, but not the
less precious, Daphnis and Chloe, whose very author is a mystery? l
It is through widely different circumstances that the narratives of
the Synoptic Gospels, documents of the highest moral quality, have
maintained their fame, yet let none of you imagine that their literary
excellence did not contribute largely to this permanent influence.

But I need not rest my argument for the expansion of our study
of Hellenic into Hellenistic times on these literary grounds, nor is it
a mere protest against ignoring great works of literature and of art
under the bonds of a narrow and false theory. The political lessons
of this later age of Greece have only recently risen into the apprecia-
tion of men. When Grote comes to record complimentary votes
passed at Athens to a Macedonian ruler or his officer, he thinks it
high time for the historian of Greece to lay down his pen in disgust,

1 These matters are set forth in my Silver Age of Greece, in which I have sought
to rescue from oblivion these forgotten masterpieces.

THE EXPANSION OF GREEK HISTORY 67

and bring his labors to a close. And yet since then Freeman has
given us an admirable and instructive volume on Greek Federations ;
the fourth volume of Hohn's History, and the monumental work of
Droysen are on the same epoch. It is not in a mere address, but by the
studies of many years, that I have shown my own personal interest
in this once neglected period. Freeman, utilizing his Polybius as
no one had done before, was the first to show how the idea of federa-
tion, long obscure and almost dormant in the Greek mind, came
into vogue when the little city states of Greece found great kingdoms
rising up around them. To remain isolated after the old Greek
fashion meant ruin; some form of combination, some accumulated
strength, was necessary to preserve not. only the political but the
economic existence of small states. This fruitful idea, first carried
out on a considerable scale by the leagues of ^Etolia and Achsea, then
with great effect by Rhodes, failed on the whole, and failed on account
of the ingrained conviction of the Greeks that every state which
voluntarily entered a confederation was entitled to secede from
it at any subsequent moment. If it could not be brought back by
argument, had the rest any right to bring it back by force? Need
I say one word more in this place to enforce the world-importance
of this problem? Seeing that the Greek sentiment, as might be
expected from small separate cities, with long traditions of inde-
pendence, and perpetual jealousies of their neighbors, was always
in favor of secession, there remained no other alternative than to
combine under a foreign monarchy. For this, while it granted local
liberties, from indifference or from policy, defended its subject states
by a superior military force, and prohibited those local wars, which
were the bane of the Greek world.

If the history of the rise of federations has at last received due
attention, that is not the case with the resurgence of the idea of
monarchy, not merely enforced upon the Greeks by their Macedonian
conqueror, but defended in many books and tracts from Xenophon's
Cyrus down to the tracts of philosophers about royalty (irepl /WtXe/as)
of which many fragments and notices remain. This once hateful
form of government was not therefore thrust upon a democratic
world against its will, but recognized on trial to be the practical
solution of difficulties which were bringing political ruin upon the
Greek world. How far this great change of ideas prevailed appears
from the readiness with which even skeptical democracies lavished not
only royal titles but divine honors upon the new king. Never was
the Divine right of hereditary monarchy so quickly and readily
adopted. It was, in fact, far safer to have a distant king, who theoret-
ically could do no wrong, than a present tyranny of pauper fellow
citizens, with irresponsible power to do practical mischief at every
assembly they chose to hold. It was far better for the herald's

68 HISTORY OF GREECE, ROME, AND ASIA

office to invent a divine pedigree for an adventurer, than to have the
Divine right of kings questioned and the novel virtue of loyalty to
the reigning house chilled by skepticism. For thus only could even
temporary peace, even local liberties, be maintained in that seething
and tumultuous age. A new Cadmus had sown the dragon's teeth,
and the Greek world was red with the warring harvest. The anodyne
which that world adopted gave the framework of the ideas to
Augustus Csesar on which he built up the Roman Empire, and
established the Roman Peace.

Here I pause, out of breath with the effort to compass so vast a
subject, to cover so long a course.

In conclusion : There are three great requisites for the further de-
velopment of this branch of human learning. • First, the diligent
prosecution of the ordering and criticising existing materials by a
number of specialists, each to his own department. Of this first we
may feel quite assured. For our age is indeed a diligent age, and
has learned how to collate and to edit. Secondly, more ample en-
dowment for making special and costly researches on famous historic
sites. What new material might not accrue to us if we had leave
and means to explore Sybaris and Cyrene, Antioch and Alexandria?
And here too we may have good hopes, for our age is indeed a gen-
erous age, and the princely donors of thousands for modern science
may yet be persuaded that with hundreds devoted to historic re-
search, they will add not less to human knowledge, and ten times
more to the gratitude of men.1 For human culture must have many
sides, and it will be an evil day when the knowledge of positive sci-
ence leaves no place for the knowledge of human society. But let
no man persuade you that ardent diligence and ample endowment
are enough without the last and greatest postulate which I shall make,
— the encouragement of a bold, constructive imagination, which
carries on its inquiries not at haphazard, but in order to verify or to
refute some large theory of what things ought to have been, or what
men ought to have done. It is this quality which makes the dif-
ference between the mere scientific drudge and the great scientific
thinker; it marks the greatness of a Ghampollion and a Hincks,
no less than of a Newton and a Laplace. And if it cannot be the
inheritance of every student, being indeed the exceptional and pre-
cious gift of the gods, remember that it cannot only be encouraged
and nurtured, but discouraged and starved by the education of men.
Through it, and through it alone, can you understand the real meaning
of the pregnant apothegm: Prudens interrogatio dimidium sdcntiae.

1 If, for example, the classical public, who are not millionaires, would support
the Gra'co-Roman branch of the Egypt Exploration Fund with numerous sub-
scriptions, the momentous and epoch-making work of Messrs. Grenfell and Hunt
might assume larger proportions, and many texts would be saved by them from
the lamentable fate of being dug out and lacerated by ignorant natives, and sold
in scraps to equally ignorant travelers.

PROBLEMS IN ROMAN HISTORY

BY ETTORE PAIS

[Ettore Pais, Professor of Ancient History, University of Naples, Italy, b. Borgo
S. Dalmazzo, Piedmont, Italy, July 27, 1856. Ph.D. Florence, 1878 ; Post-
graduate, Berlin, 1881-83 ; LL.D. Chicago ; Chevalier, Le'gion d'Honneur de
France; Commander of the Prussian Crown; Director of Royal Museum,
Sassari, 1879-81; Cagliari, 1883-86; Naples, 1901-04; Professor of Ancient
History, University of Palermo, 1886-88; Pisa, 1888-99; Naples, 1900; Madi-
son, Wis., 1905. Member Academy of Lincei, Rome; Academy of Sciences,
Munich; Imperial German Archaeology Institute, Berlin; Societe d'histoire
diplomatique, Paris; Royal Historical Society, Piedmont; ibid. Romagna; ibid.
Marche Venice, etc. Author of History of Sicily and Great Greece ; History of
Sardinia; History of Rome; and other noted works in history.]

ANY one who will follow the development of the ancient political
history of Greece and Rome, and closely observe what were our con-
ditions from the Renaissance to the close of the eighteenth century,
will easily recognize that the nineteenth century, so glorious in the
renewing of philosophical, natural, and social studies, has not been
less great in this conspicuous branch of human knowledge. Thanks
to the methodic study of the literary texts, of the genesis of sources,
and to the laborious collection of infinite series of monuments;
thanks to the works of Boechk, Grote, Niebuhr, Droysen, Momm-
sen, and of the great number of their followers, the political knowledge
of the ancient classical world has advanced so far as to give us an
almost complete view of that civilization. We have precise narratives,
which ought to be of the greatest utility, not only to the professional
scholar but also to any cultured man. And close to these narratives,
inspired, as in the case of Mommsen, even by the cult of form, we
have a long succession of deep works on all the branches pertaining
to kindred sciences; from chronology to numismatics, from public
law to the history of art and of philosophical opinions. Any one, in
fact, who with optimistic views will examine the enormous scientific
publications made in Germany, France, England, and America, may
almost be drawn to conclude, at first impression, that little is left to
be done, and that man's mind, always seeking new problems, may
find little to reap in a field so completely cleared. This impression
is perhaps less strongly received from the study of Greek political
history than from the study of the Roman, where the wonderful
energy of a single man appears to have left almost nothing for his
fellow workers and future generations to gather. You will under-
stand my allusion to Theodor Mommsen, the man who for half a
century has held undisputed the sceptre among all cultivators of
history and classical law, the man who has not passed over in silence
any of the arguments regarding the life of the Roman people.

70 HISTORY OF GREECE, ROME, AND ASIA

Mommsen, in fact, after having silenced the voices of his oppon-
ents, has seen his triumphal chariot followed by the best energies
of two generations of learned men. But it looks as if it were an
inevitable historical necessity that to the works of learned men
should be reserved a fate quite different from that which is decreed
to the works of artists. The greatest perfection reached by a poet or
a painter has not as its immediate effect the disdaining of his pre-
decessors' work. Human curiosity is, in this case, rather urged to
examine and to appreciate the less mature and perfect work which
marks a salient point in the artistic development. On the contrary,
it is quite rare not to see those same laurels gathered by the greatest
scientists, rapidly fade and drop. And the history of science, keeping
firmly to the vital ideas and criteria which make the works of the
most eminent authors of the greatest importance, gives only a flying
glance to the older works, which have spread in their times the ideas
which had to produce the new germs.

The direct efficacy of August Boechk has been now transmitted
in a great measure to other writers, and though the impression left
by Mommsen, who, following close upon Boechk, rilled with him all
the nineteenth century, is still lasting, it is clear that also through
the ideas and infinite researches which emanated from his great
mind, we are on the eve of a new and great intellectual movement,
a movement which is alimented and increased by the new material
which is being discovered in every part of the ancient classical world.

In these last years we are coming into possession of new Greek
histories, which are destined to make the world forget the ones
written by Grote and Curtius; and new ideas and problems are
already fermenting in the human brain, which will necessarily lead
to new histories of the Republic and of the Roman Empire, quite
different from those of Mommsen and Gibbon.

The opinion generally accepted that the material of the classical
world is now altogether determined and closed, and that the study
of historians should be limited to penetrating literary examination,
discussed word by word, and to the observing of the old materials
under new points of view, has been altogether destroyed by the
fortunate discovery of papyri which, thanks, especially, to English
diligence and learning, are coming to us from the very bowels of
ancient Egypt. And to the papyri which illustrate every part of
the public and private life of the ancient world are added the results
given by the excavations which illustrate both the mature ages and
the first origins of civilization among the classic peoples.

One of the most salient characteristics of the nineteenth century
has been, in fact, the patient research of the embryonic forms of all
cosmic life. It was quite natural that from this universal tendency
the study of classic history should not have been exempt; a study

PROBLEMS IN ROMAN HISTORY 71

which, also for the past, had been constantly determined in its
genesis and in its ulterior development by the prevailing currents
in all the remaining sciences, and by the changing of political and
philosophical ideas. The study of classical antiquity from the end
of the sixteenth century through the eighteenth, especially in Pro-
testant countries, has been the substratum of political and civil
education. When the triumph of liberal ideas was obtained in
Europe, the science of antiquity did not become the object of mere
erudite curiosity, but was taken as the foundation and the ideal of
literary and moral education. And it is in this blind and exclusive
admiration of the life of the Greeks and Romans that one must trace
the reason why their civilization was considered quite different from
the Eastern, while the Greek one was supposed autochthonous, sprung
by its own virtue, like Athena completely armed from the head of
Jove. Thus the declarations of the ancients were considered erroneous ;
though, far from feeling any shame of this contact with the oriental
world, they insisted particularly on it. And the same insistence and
warmth, which would be urged to prove the constant purity of
blood in the lineage of an aristocratic family, was used in attribut-
ing a purely Hellenic origin to the myth of Herakles, and to deny the
Phoenician descendance of Thales. The merit of having overthrown
the theories which have had for so many years the preponderance
in the field of European science is undoubtedly due to the various
scientific European and American missions, and to many learned
Englishmen. And without letting ourselves be blinded by the exag-
gerations to which every reaction leads, -wre must follow with great
love the discoveries made in Egypt, Crete, Greece, and Sicily, reveal-
ing the existence of civilization of the Mykencean type, which de-
monstrates to us, with increasing strength, the truth of the aphorism
that in the world nothing is isolated, but everything is in relationship
with preceding or with parallel phenomena. Scientists are to-day
better disposed to listen to the demonstrations of Ginzel on the astro-
nomical discoveries of the people of Babylon, and on their efficacy
over the posterior doctrines of Hipparchus and Ptolomaeus, just as
they have no more difficulty in recognizing the possibility of ancient
political relations between Greece, Asia Minor, and Egypt. And it
is to be hoped that new discoveries may not only benefit the develop-
ment of material civilization, but may one day be of great advantage
in illustrating the genesis of the Greek conscience, which is still sub-
stantially dominating the modern world.

The great and luminous discoveries which to-day have thrown
light upon the relations between Egypt, Asia Minor, and the coun-
tries inhabited by the Hellenes, were to have a necessary rebounding
action in the researches regarding the origins of civilization and
Italian history.

72 HISTORY OF GREECE, ROME, AND ASIA

The most recent scientific criticism had refused the mystic nar-
rative of the Pelasgians. It is then clearly understood how some
scholars came to defend such traditions. However, it must be added
at once that to this day these attempts have not been very fortunate.
The excavations at Norba in the territory of the Volscians, with
the hope on the part of some to attribute to the Pelasgians the ancient
Italic walls, have only served to sustain the position of those critics
who assigned those same walls to a much more recent age. And the
same results have been obtained from the explorations in Etruscan
Volterra. The discoveries of material of the Mykensean type in Sicily
and also at Tarentum are in relation with the commercial diffusion
of products, which, in the third Mediterranean basin, reached the
first dawn of Greek colonization, that is the beginning of the eighth
century. Likewise all attempts to set back, by many centuries before
the eighth, the most ancient historical forms of Italy have completely
failed.

No wise critic can seriously consider the attempt made by a learned
Swede to establish a chronology which goes back two thousand years
before Christ, by means of various types of bronzes and vases, which
lasted in an irregular manner according to the various countries,
more or less accessible to new commercial influences, more or less
slow on their way to civilization. A few years ago people took into
consideration such theories which, basing themselves on the study of
TEmilian palisades, caused the Italic founders of Rome to come
from the north of Italy. The recent discoveries in Greece, in the
jEgean islands on the coast of southern Italy, are instead tending to
prove that such archaeological discoveries can contribute to establish
the history of the commercial relations, but that they have nothing
to do with the ethnography of the most ancient Italic races. I do not
stop to examine theories already accepted as certain, — of palisades
pitched even on dry land for mere reason of rite, and of Ligurians
recognized in various parts of Italy merely from the crouching posi-
tion of the corpses, etc. Common sense knows what value to put on
such aberrations. Archaeological excavations tend rather to prove
that the Italian civilization, born on the coast of southern Italy,
gradually spread as far as the plains of northern Italy and quite
to the base of the Alps, where the less frequent contact with the
East, the continuous emigration and impositions of barbarous
elements coming from the north, were maintaining stationary forms
of civilization, which had already disappeared from the south.

Among all the excavations of Italy, those which have been so
zealously carried out in the Roman Forum by Giacomo Boni are to
be especially mentioned. These excavations have been, for some, the
revealing elements of a civilization anterior to Romulus himself.
But they proved, after all, nothing of the kind. We are lacking all

PROBLEMS IN ROMAN HISTORY 73

data to establish whether those bronzes and vases should be of the
tenth and ninth, rather than the eighth, seventh, or even sixth
century, B. c. Other excavations would seem to prove that the
typical forms of the so-called Numa vases lasted till the Empire. The
only result altogether certain is the first confirmation of the ancient
texts, which said that at the outskirts of the Forum there was a
Sepulcretum. And from this, even before the excavations, I had
obtained the proof, solemnly confirmed to-day, that the Forum was
added to the city long after the age of the seven kings.

1 do not think it is now the moment to speak of the famous Archaic
Latin inscription found under the Niger Lapis. All the attempts
which have been made to interpret it have been fruitless. Considered
from the palseographical side it may belong either to the sixth or fifth
century, or even fourth century, while from the external form and
for the disposition of the writing it recalls the Capuan monuments
of the end of the second or more probably at the beginning of the
first century, B. c. No reasoning of any critic can possibly demon-
strate that the rex remembered there is the political rex of the royal
age rather than the rex sacrorum of the Republic. As regards his-
tory, properly said, the inscription teaches us nothing. The excava-
tions of the Forum have, however, demonstrated what I had already
affirmed, namely, that the arched cloaca maxima is not a work
belonging to the royal age, but rather to the Republic.

In order to solve the most ancient problems of the history of
Italian civilization, some people have turned to the investigation
of linguistics and anthropology rather than of archaeology. It has
been easy for an able German linguist to criticise the weak point of
the theories founded on craniological and somatological elements.
However, it has been easy to a great Italian linguist to find traces of
ancient ethnology in the phonetic persistences among the dwellers
of various Italian regions; and the anatomic examination in the
structure of the different races in the Peninsula will certainly lead
one day to brilliant results. The persistency of the Celtic reveals
the expansion of this people; and among the mountains of the
Garfagnana the Ligurian race, which before the Etruscan dominion
occupied such large part of the Italian, Gallic, and Iberian regions,
still holds compact in its somatological integrity. Thus, on the slopes
of the Apennines, surrounding Campania, just where the Sarno takes
its start, one finds in the same compact condition an indigenous race
unmodified by the successive superimpositions of the Samnites and
Romans. And I willingly agree with Professor Julian when he says
that a corpus of the toponomastic of the ancient world would lead to
most brilliant results.

Naturally these studies are not yet perfect, and hurried conclusions
may lead to bitter delusions. Certainly a great delusion must have

74 HISTORY OF GREECE, ROME, AND ASIA

been felt by certain learned men who, after having spoken with all
certainty of the immigration of people coming from Asia, basing their
affirmations on the presence of jade-axes, were suddenly informed
by a mineralogist that the same rock was to be found in the Alps.
Bitter delusions will come to those whom the Etruscan sphinx devours
daily; and my opinion is that people insisted with too great facility
on the non- Aryan character of the Ligurians, since I have already
brought to observation that the etymology of the indigenous name
Genoa (knee) , as Ancona (the arm) , Eryx-Verrucca (the hill) , shows
the premature character of these conclusions.

These delusions must not, however, prove discouraging, since there
is no science which has not improved through infinite uncertainties
and errors. We must, however, admit that regarding the problem
of Italic origin which has attracted and still attracts such a great
number of studious people, we have not yet reached any series of
sure and complex results, partly from lack of data, and partly from
faulty methods.

Many people who busy themselves with the primitive strata
which precede the true and real political life ignore classical culture,
which is a fundamental guide, and those who represent it are not
always in a condition to appreciate the anthropological and social
problems.

Regarding the archaeological part, researches have not been
directed to just aims. The great majority of learned Europeans and
Americans, always running after new and more ancient material, turn
to the excavating of Samos, Miletus, Crete, and Lycia, whilst Italy
is still quite far from being all explored. And yet on the very
boundaries of Latium and Campania, where the ancients placed the
mythical seat of Circe, and the tombstone of Elpenor, notable ruins
exist neglected even from the times of Polybius. There, just as on
the little hill standing above the ruins of the Roman Minturnse, are
preserved the traces of what is, perhaps, the most ancient stratum
of Greek colonization in Italy.

The problems relating to the most ancient Greek and Italic civiliza-
tion are waiting for light from the spade of the excavator; on the
other hand, those regarding the most ancient social and political
structure wait their light from the comparative study of public law
and economy. But even in this respect what a difference there is
between the history of ancient Greece and that of ancient Rome!
The marbles of the ancient Acropolis permitted Boechk and his fol-
lowers to reconstruct the financial history and the maritime hegem-
ony of Athens, the texts of the comedians and of the orators have
permitted Belock, Poehlman, Francotte, and others to treat the most
difficult questions relating to financial and social organizations. Paul
Girard has succeeded in writing a good book on the ancient land

PROBLEMS IN ROMAN HISTORY 75

property in Greece. The material lately illustrated by Wilken proves
that new researches may still be made. In the Roman field, instead,
there is nothing that can be in any way compared to this. No history
whatever on land property during the Republic is to be had, and if
we want to be sincere, we must admit we do not possess even a good
guide for the more ancient social and political institutions. We have,
it is true, ancient and diffused narratives on political struggles, which
are the foundation of a long series of modern manuals on law and
history. But such narratives are based on spurious material, and even
the treatises on Roman political law written by Mommsen (for the
period from the age of the kings to the beginning of the Punic wars)
is based upon falsified material. I do not insist on this point, as I
would find myself obliged to repeat demonstrations already given by
me elsewhere. I hope at any rate to be able soon to publish my
researches on the value of chronology, on the Fasti and on the public
law of the most ancient Roman people, in the only way in which it
can be really obtained, namely, through integrations and comparisons.
I say integrations and comparisons, since the study of public law and
of the social conditions of a nation cannot be made now, as in the
past, through the simple knowledge of the material relating to that
single people, no matter how minute and deep. If there is a matter
which should be deeply known by the student of ancient civilization,
it is the comparative history of the law of all peoples beginning from
the customs in the savage state, to the true and proper law of most
civilized people. Under this aspect Sumner Maine's researches,
though incomplete, have brought a greater advantage to studies,
than the pretentious works of many scholars of Roman Law. And
only by such comparison, to which must be added a good knowledge
of the classical material, shall we, some day, be the possessors of a
treatise on Greek public law, which is generally desired. And the
study of law and comparative sociology will evidently give us the
history of the ethic development of the classical world, which we lack,
and which is the surest foundation in order to understand the reasons
of political events.

Fortunately for those who will apply themselves to the history
of law and of Greek and Roman social institutions, the Egyptian
papyri and the discovery of new inscriptions, which explain intimate
connections between the two great phases of ancient civilization, will
bring new and wished-for materials. Every one knows that an
institution like that of aurum coronarium, of the colonat, and of the
frumentationes , finds its precedents in the history of Samos, Miletus,
and Alexandria; and the original studies of Mitteis have shown what
quantity of material for deep researches there is in the comparison of
Roman with Hellenic laws.

It looks as if the discovery of the papyri were destined to give

76 HISTORY OF GREECE, ROME, AND ASIA

results in the Roman and Greek fields. But if the philologists have
rejoiced in the discovery of the texts of Aristotle, Bachylides, and
Timotheus, the Latinists must be satisfied with a long series of con-
tracts, leases of rustic farms, constitution of dowry, contracts of
loans and emphyteuses. There is no hope of finding a book of Polybius
or of some other historian, precious for us, but less cared for by the
ancients on account of the style in which it was written. We have
this discouraging outlook also from the examination of the archaeo-
logical excavations made in the ancient world.

The soil of ancient Italy is certainly not exhausted, but nothing
makes one hope for discoveries similar to those of Greece and Asia
Minor; and the interest of the studious now turned to the oriental
world does not find it worth while to explore the adult forms of the
Grseco-Roman civilization which alone is offered by the Peninsula.
We deduce from this that the study of Italian history at the time of
the free republic does not present anything new for investigation,
while all the periods of Greek history have been, one might say,
transformed, and the history of Hellenism, thanks to the works of
Mahaffy, Belocph, Niese, Strack, Bouche"-Leclercq, and many others,
has been rebuilt from the very beginning. Let us guard ourselves,
however, from drawing too pessimistic conclusions.

The study of social and political life in the Roman Republic has not
presented any material for new treatises nor any original proceedings,
for the reason that the problems which contain the conclusion of
the subsequent corollaria had not been well solved. The life of the
Roman people, far from constituting a characteristic phenomenon,
as it was conceived for centuries, and in part was understood by
Mommsen himself, is but the last and quite mature phase of that
civilization which continued and transformed the preceding activity
of the East. Laying aside the Roman annals which offer a premature
originality obtained through falsification, there remains only a late
civilization which grafts itself on the developed Greek world.

In Roman civilization there does not exist a political institution
or situation where there has not been repercussion or modification
of the anterior civilization of Sicily or Magna Grseca, and later of
Greece itself and of the Hellenistic states. Only the full and perfect
knowledge of the Greek world permits a clear understanding of the
Roman one. Thus it is clearly understood how a Roman history can
be properly related only when the great problems of Greek and
Hellenistic history will be solved. If, however, in the half-century
which has succeeded to the first appearance of Mommsen 's book, there
have been published at rare intervals some works which have en-
larged the field of our knowledge, this is not due to a lack of material
adapted to problems, but to the want of preparation to solve them.
We lack a good history relating to the period of the Gracchi, as well

PROBLEMS IN ROMAN HISTORY 77

as one on the Social Wars; we have quite incomplete expositions on
the civil wars or on the conditions of the Roman provinces during
the Republic.

But I do not think I am too much of an optimist when I maintain
that the new view that we already have of the Greek world, and of
the improved comparison of law and of the institutions of other
people, will have the effect of giving us in the near future a new and
quite original history of the Roman Republic.

The examination of those problems which are treated in the history
of the Empire is leading us apparently to entirely different results.

The wonderful energy of Mommsen, the great compilation of
Corpus Inscriptionum Latinarum, the activity of a great number of
learned men belonging to all nations who accepted Mommsen's
fundamental criteria, seems to have directed the problem of the
Empire to a definite solution. To the conception which, on the general
progress of the Empire, was given by that prominent scholar, is to
be added that of those writers who treated the history of the single
provinces.

In regard to the technical side, the researches on the administra-
tive, financial, and military organizations, and on public cult, made
under the guidance of Marquardt and Hirschfeld, lead to precise
reconstructions which are perfect in many respects.

It is true that the Roman world has not yet completed the bringing
to light of the epigraphic material hidden in the bowels of the earth or
dispersed over lands not yet explored by the historian. It is also true
that though papyri have increased in a great measure the knowledge
of private law, it may from one moment to another give us new and
important information also on public law. However, so far as we can
see, the general lines of Roman administration will not be much
modified.

Nevertheless, all these previsions do not lead us to consider as
solved the problems concerning the political and social reorganization
of the Empire. Among modern writers, and especially among those
who have followed the ideas of Mommsen, the general tendency has
been to glorify the happiness and welfare of the Roman world. They
have based themselves on the existence of the colossal ruins scattered
in all the provinces, on the regularity and perfection of administra-
tive and military organizations, on the extension of commerce, and
on the enormous development of riches, rather than on literary texts
which do not seem always to help their thesis.

The discordant voices of ancient authors are interpreted as inter-
ested protests and outbursts of political parties. The happiness of
the Roman Peace and of the Imperial government contrasts, they say,
with the hardness and rapacity of republican oligarchy; and the folly
and cruelty of princes is compensated by the upright provincial

78 HISTORY OF GREECE, ROME, AND ASIA

administration. In all this there is evidently some exaggeration, and
a new verification of the problem imposes itself. The grandeur and
the diffusion of temples, basilicas, baths, theatres, and aqueducts in
all the colonies and municipalities of the vast Empire is not sufficient
to prove that the general happiness and welfare were greater there
than in the capital, which under the different bad or good emperors
continued constantly to enrich itself with new edifices. Thus from
the wealth and elegance of the Roman churches of the sixteenth to
the eighteenth centuries nobody certainly would dare draw proofs in
favor of the moral power of the Papacy during that age, and of the
general happiness and dignity of the citizens of that state. And just
as it is proved by monuments, inscriptions, edifices, and institutions,
that the life of the capital was reproduced in a smaller way in the
provinces, so it is quite natural to think that also the moral and civil
condition should have been reflected there.

The plebs in the capital lived on alms, at the expense of the pro-
vinces, and there a municipal nobility composed of a small number
of families uses to its advantage the resources of the community.
This municipal nobility will enrich the city with monuments because
it will find for itself a way of consuming at its leisure the municipal
income. In Rome, as in the provinces, they endeavor to repair the
loss of the free citizenship by alimentary institutions; but there can
never be found a spirit of charity for the poor and the oppressed;
something is lacking to recall even the hospitals which were attached
to the cult of Greek ^Esculapius. The sportulae handed to the numer-
ous and hungry clients under the show of power, by the disdainful and
wealthy pair onus, makes one naturally think of the alms which till the
latter part of the past century were justifying before the plebs the
riches and idleness of the friars in the Italian convents. And when
one thinks that Vespasian, certainly one of the best Roman emperors,
found nothing better than to redouble the taxes on the provinces, and
imprudently to sell absolutions, either for the culprit, or for the inno-
cent, in order to restore the finances of the state; and that he chose
as administrators of the provinces magistrates from whom he would
draw, as from sponges, the ill-acquired riches, one may well ask what
was the nature of this general welfare. At any rate Hirschf eld's
researches have put in evidence how little was done during the first
three centuries of the Empire to secure life and property in Italy and
in the provinces. Tacitus has made us hear the voice of protest of the
Roman families only. During the Csesarean despotism all free speech
was silenced; but if the voice of the provincials had reached us,
we could know how many base deeds and adulations determined
the raising of statues to the good Roman governors. We have not
as many honorary inscriptions for good emperors as for. the wicked
Caracalla.

PROBLEMS IN ROMAN HISTORY 79

In reality, under the Republic as under the Empire the provinces
are but the praedia populi Romani. The Roman provinces and muni-
cipalities are only a vast field which a clever administration makes
use of to enrich imperial functionaries, and the classes directing the
community. To derive from these indications a general happiness
would be equivalent to affirming that the remuneration of the
workers is great where the shareholders have a large dividend, or if,
in regarding the economical side, we turn to the noble spheres of
letters, of arts and sciences, we see everywhere the signs of a great
and rapid decadence. The age which according to general opinion
receives its light from Augustus, and which according to the poet's
song marks a new century, is but the beginning of the last phase of
a great civilization which, already developed with the Greeks in the
eighth century, dies with Diocletian and Constantine. Notwith-
standing what has been said to the contrary, the traces of decadence
are visible not after the Antonines, but with Augustus himself, and
with the incapacity officially and wisely recognized by him of con-
quering Britain, restraining the Germans, and taming the Parthians.
Such decadence is after a few generations quite visible in art. No great
poet succeeds Virgil. Tacitus marks the end of the great Roman
historiography. Art reproduces in large and pompous manner
crystallized forms, and the cold and artificial religion of state suffo-
cates and dries any frank and noble aspiration in the human soul.
Free speech is silent everywhere; cold rhetoric and declamation
succeed to eloquence. And in sciences, with the exception of the
development of great public edifices which, as the history of Apollo-
dorus demonstrates, is always under the high inspiration of Greek
doctrine, all is transformed in a pure empiricism drying the germs of
theoretical speculation. Geometry has become surveying, and medi-
cine, judged unworthy of being studied by a Roman citizen, is left
to the Greeks. Ethics and philosophy are transformed into law and
regulation, which obliges all to obey the will of the legislator, who is
clever in law, but more so in handling the sword. And the greatest
pleasure of the Roman society is not to hear, as in the fine Athenian
times, the pricking playfulness of Aristophanes or divine verse of
Euripides, but rather to assist at the games of the Circus, where the
blood of the dying gladiators and that of the wild beasts stir up
voluptuousness and a desire for struggle. There still remains military
glory. But patriotism is already changing the career of arms; Italians
are despoiled of their weapons, and the legion, according to an an-
cient inscription from Aquileia, becomes barbara. In the Roman
society there is no place for the unwealthy, and it is quite natural
that the humble and afflicted should rapidly contribute to render
vigorous the incipient Christian society which, having later become
powerful, conquers and then associates itself to the decaying Empire.

80 HISTORY OF GREECE, ROME, AND ASIA

The love of war and glory still lasting through centuries in Europe,
the greatness of the monumental remains, and the inheritance of
Roman political organizations also accepted by the Church, the
Roman laws which absorbed all the legislative work of the ancient
world, the cares for the defense of the Rhine, Danube, and of Asia
Minor, the song of Virgil, the prose of Cicero and Livy, are such great
events that they could not be entirely forgotten, not even by the rough
Middle Ages.' The comparison between Romanity and the subsequent
barbarism of Europe is enough to explain the reverent admiration
which also in these last centuries has existed for the great merits
of Roman civilization. But an exact comparison of the origin of all
ancient civilization and the ties that the Latin world has had with
the Greek naturally leads to a better understood and measured
admiration. When studying the light we must not neglect the
shadows. But still recognizing all the merits of Roman civilization,
we must keep in mind all that was done by the preceding nations.
Rome civilized the coast of Northern Africa, but we must not forget,
as some critic has done, the preparatory work of the Carthaginians
from whom Rome learned for the first time the arts of agriculture.
It is Rome that has the merit of having civilized the Gauls, but we
must not pass over in silence the extended and beneficial preparatory
work of the Greek Massilia, which for its civil institutions and its
commerce was once quite superior to Rome, and even during the
Empire was justly chosen by Romans as a seat for the moral educa-
tion of her sons. An exact balance of all that has been produced by
the Roman civilization has not yet been struck. This examination
will, certainly in many instances, prove of honor to the Italian people,
to whom the West owes the transmission of light on the old Hellenic
civilization. Many statistics and comparative works that are still
needed, for instance, for the Iberian Peninsula, have not been
written. And such researches will have to consider density of the
population, the true condition and transformation of slavery, the
diffusion of the Eastern cults, and finally of the first Christian society.
But among all the problems which have not yet been solved, the most
difficult and the most complex is always the one on the value of the
political work of the Emperors themselves.

Mommsen rightly observed that legend is found just as much in
the life of Fabricius as in the anecdote of the Emperor Gaius; and as
Willrich has recently demonstrated, many data of Imperial traditions
deserve a new revision. But in order to resolve the problem of authen-
ticity in the ancient tales, it is not enough to establish researches,
even diligent ones, on the discordance and on the presumable value
of the historical sources. Such complex problems can be solved only
by the examination of other historical periods. The critic who studies
the Empire is immediately impressed by the ferociousness of the

81

degenerate princes. But in the end the cruelty of Tiberius is not greater
than that of Sylla, and the intrigues of the courts of the Seleucids
and Ptolemies are useful in making one understand the plotting of the
Palatine Imperial Palaces. And without having recourse to the easy
but unhealthy remedy of fixed formulas taken from premature
treatises on the historical development of all societies, it is clear that
in the study of the ancient Germanic races or of the oriental mon-
archies one will often find material adapted to clear up problems
of the ancient classic world. Such study, for instance, can be useful
to the solution of the controverted problem of the Scriptores Historiae
Augustae, much more than the infinite series of proceedings which will
be expounded by the philologist, and more than an analytic diction-
ary of those texts.

At any rate, the history of the Empire contains problems which
can be referred also in great part to posterior history. The modern
historian lives in an epoch when war is generally considered as an
evil to be avoided ; the scholar who is not accustomed to arms spends
his time between the documents of the archives and the ruins of the
excavations. He does not feel the necessity of connecting military
events which he is not in a condition to understand. If necessary
he turns to the opinion of some military person more or less used to
interpret and to understand military texts. Anyhow modern age is
tending to solve problems of social character, and critics, generally,
if only for the love of novelty, ascertain and follow the tastes of their
contemporaries. And more than to the problem of moral conscience,
which determines the function of the highest human energies, they
try to transport, in the ancient world, those facts which are torment-
ing modern societies, without sufficiently taking into consideration
different conditions in culture and faith, in density of population and
in social organisms.

An historian of the first order, Polybius, in finding fault with his-
torians given only to the study of books, praised Ephorus for his being
in condition to describe a land battle or a naval operation, just as
Gibbon's contemporaries appreciated his military knowledge. Poly-
bius himself, quite an expert in arms as in political management,
was not wrong. To narrate the destinies of the world, determined by
the result of military events, without being in a condition to interpret
them, is like writing a history of literature and sciences, giving only
the names of the authors and the titles of the works, without examin-
ing the contents. To speak of Alexander and Hannibal without con-
sidering the merits of their strategy and tactical movements, means
to give up a good part of their work, and not to understand the nature
of the military states in which those same events happened, and for
which they were written. And this fact holds more for the Roman
world \vhich lived always in arms than for the Greek civilization.

82 HISTORY OF GREECE, ROME, AND ASIA

Certainly the modern historian must not limit himself to narrate that
which, according to the ancients, formed the essence of their history.
He has, after all, the duty to retrace those elements of which they
had not a full knowledge, and which are useful in explaining the
complex development of humanity. But in such a case, besides the
study of economic forms, it is necessary to turn one's attention to
the development of religious and moral opinion and to the history
of arts and sciences. And the investigation of the reasons which
determine the reciprocal action of all these elements and the prepon-
derance of one over the other, according to the different ages and
places, constitutes the most complex problem which the historian of
the ancient world is called upon to solve.

The method of making chapters in literary, artistic, philosophical
history, from the narrative which in substance is constituted of ex-
ternal facts, is now out of date. The history of a people, just as the
history of an individual, is subject to transformations which modify
its activity. If the history of the Roman people has remained essen-
tially military and political, that of the Greek races presents instead
the phenomenon of different elements combining with one another.
The literary and artistic history of the Athens of the fifth century bal-
ances that more strictly political, but the development of criticism
and of sciences constitutes certainly one of the most important char-
acteristics of the age of the Diadochi. Thus for the period of the
Spanish preponderance, the Italian nations will very rarely give occa-
sion to speak of arms, but will offer, instead, material for art, for the
study of the works of Galileo and of Bruno.

Politics, military art, law, economy, fine art, science, from the
historical point of view, form a complex whole before the history
of the ancient and modern world. And since the unlimited increase
of knowledge in the branches of learning makes this task more and
more difficult, it is evident that our education, freed from useless
teachings and old prejudices, must be strengthened by the study of
the sciences. But it will not be enough to reform the organization
of our colleges, we shall have still to break the barriers of our faculties;
because if it is true that no science can improve without long and
detailed technical researches, it is also true that the studies of special-
ists contain rarely important results, unless they are guided by
large conceptions and are coordinated with various and kindred
sciences.

And among the sciences which are destined to make future his-
toriography improve, politics comes first. This recommendation may
at first seem ingenuous or altogether useless, unless one consider
how, after having naturally exempted some famous works, nearly all
the modern production in the field of classic antiquity is due to the
activity of the philologist. The necessity of investigating the literary

PROBLEMS IN ROMAN HISTORY 83

texts, of long and detailed researches on the reciprocal dependence
of the sources, of interpreting epigraphic texts, and now more than
formerly, also the papyri, render the help of philological training
precious and indispensable.

But it is also just to recognize that in nearly all the historical pro-
duction, due to the philological school, the political sense is nearly
always missing.

It is then necessary to see to it that those who will be called upon
to solve the future problems, though dedicating themselves to all the
sciences which constitute the historical organism, should take part in
political life, avoiding, however, becoming victims of those prejudices
which guide the parties that are the natural product of the political
atmosphere. And of all these preconceptions one of the most dam-
aging is that born of blind patriotism. Few among the human senti-
ments have contributed so much as patriotism to keep alive the
remembrance of historical facts, and to promote the increment of
researches in the past. But it is not less true that this sentiment has
brought the greatest disadvantage to historical truth.

It is superfluous to recall examples of the first cases; it is much
more useful instead to observe in how many instances the objective
history of a people has been usefully told by strangers and even by
rival nations. If Polybius was able to expose a narrative of Roman
events, as no other Italian historian could, this did not arise only
from his political culture and clear-sightedness, but also from the
fact that, belonging to a conquered nation, he was not blinded by
national pride. This greater objectivity distinguished also the polit-
ical work of Trogus Pompeius from the annals of the Paduan Livy.
The horizon of the eloquent Livy did not extend beyond the Urbs and
Patavium, while Trogus Pompeius saw the Roman deeds from the
point of view of universal history, and therefore gave to them a better
proportioned part in the history of the world. If the histories of Theo-
pompus or other authors known to Plutarch had come to us, we
should certainly have quite a different history of the Persian wars
from that of Herodotus, inspired by the glorification of Athens.
Germany, with Ranke's and Von Sybel's, has given the best histories
of the Catholic counter-reform and of the French Revolution. And
we do not need to mention to you the value of Prescott's and Irving's
studies on the most brilliant periods of the Spanish domination. The
patriotic historian is bound by a thousand prejudices of education,
and is not always in condition to judge with perfect clearness the
events of his country. Even if he be free from preconceptions, he
feels tightly bound by many considerations, and if he says all the
truth he exposes himself to censure. Still the treating of the same
arguments with stereotyped views does not lead to any scientific
results. What is of advantage to the progress of sciences and arts

84 HISTORY OF GREECE, ROME, AND ASIA

is freshness of impressions and new energies which substitute them-
selves for the old ones. And since you Americans, with a new and un-
failing impulse of youth, open your universities to the study of all the
problems of old Europe, let us hope that with your work a more per-
fect knowledge of the ancient world may be reached. Like all young
and robust organisms, you are naturally inclined to break down the
tendency toward routine which too often binds the work of European
scholars. From the contact of old with new theories, there will cer-
tainly come out sparks which will be destined to throw new light
on the infinite problems of the classical world. The study of the
early belief and social forms of America has contributed to explain
questions of ancient mythology and classical anthropology which re-
mained inexplicable mysteries for generations of learned men. In turn
the political study of old Europe, and especially of the classical world,
will make more clearly understood the destinies to which the United
States of America are called.

In fact, the conception that political history should be studied by
itself, with no other aim but mere curiosity, must be rejected, as well
as the idea that any other science is not destined to have a practical
application in life. The purpose of this great Congress, to which you
have called all sciences to be represented, pure and experimental,
theoretical and practical, is the best guarantee that the scientific,
American society will not be lost either among the fogs of abstrac-
tions or the vulgarity of empiricism. If among the decadent nations
or those about to decay, men who are without ideality and who ignore
art or science are put at the helm, in the countries which are destined
to a prosperous future public interests are intrusted to those who best
understand the history, and therefore the hopes, of their country.

It is not strange that nearly all Roman historians should have
been statesmen; and statesmen were Machiavelli, Macaulay, and
Bancroft. Without knowing the biological precedents the cure of an
invalid is not possible, just as without a long experience of the past
it is not possible to provide for the future of nations.

The study of old Europe, its glories, and its errors, is a sacred
patrimony which she divides with the United States, which have the
task of forming a new and great civilized society. The Roman and
Greek civilization is a great part of this patrimony, and is worthy
of your cares, because it contains the best part of institutions and
traditions which you are called upon to study and partly to follow.

The immense space of sea which separates you from Europe and
from Eastern Asia, the lack of danger of an invasion from the north,
and even less so from the south, seem at first glance to place the
United States in a situation quite different from that of the old
European civilization. But the speed which will be attained by
steamers in the near future will render these distances proportion-

PROBLEMS IN ROMAN HISTORY 85

ately smaller than the Ionian and the Tyrrhene seas were once for
the Athenians navigating toward Syracuse, and for the Romans
fighting against Carthage.

Greece and Rome had in the Mediterranean a position which
recalls, in part, the interoceanic situation of the United States.
They transmitted successively to the West the civilization received
from the East, and the United States are already called to take great
part in the transformation of the yellow races.

The economic and social foundation of the Romans was based
on slavery; you, instead, have freed the negro from bondage. But
the complete participation of the latter in your political counsels
constitutes one of the greatest problems which you are called to
solve. And it will be all your glory if you shall find a better solution
than the ancient world. The immense development of your finances,
which seems fabulous to us old races, reminds one of the similar
enormous development during the Empire. You have the daring
and practical mind of the Romans, the greatness of their works,
and the firmness of their character. But the love for sciences and
arts protects you from the danger which threatens the plutocratic
societies. This love for science and art, which causes you to multiply
your universities, libraries, and museums, takes, however, its first
and more vital inspiration from that brilliant Greek civilization
which transfused itself into the Italian Renaissance. And while in
so many parts of Europe old forms of social organizations are still
living, you are, on the contrary, destined to maintain brighter than
ever the most luminous flame of the old Greek and Latin civilization.

The cult of that freedom which you placed as a glorious symbol
just where the Atlantic touches your shores is an omen of unham-
pered enterprise and active life for all those who, coming to you from
distant countries, have the aspiration to share your community.

The glorious history of your independence shines through the
greatness of Washington and Lincoln. You are worthy of continuing
the cult of Pericles, Timoleon, and Scipio; and permit me, to whom
you have given the great honor of speaking about the ancient civil-
ization of the land of Columbus, Amerigo, and Cabot, to recall here
my fellow citizen, Carlo Botta; only a few years after your war of
independence, the Piedmontese Carlo Botta was the first among
Italians to relate your history, glorifying the virtues of Washington,
and through your example endeavoring to stamp a seal of infamy
on the tyranny then reigning in Europe, and to spur the soul of his
citizens to the cult of freedom.

A GENERAL SURVEY OF THE HISTORY OF ASIA, WITH
SPECIAL REFERENCE TO CHINA AND THE FAR EAST

BY HENRI CORDIER

[Henri Cordier, Professor of 1'Ecole des Langues Orientales Vivantes, 1881,
Paris, b. August 8, 1849, New Orleans, Louisiana. A.B. University of
Paris; Litt.D. University of Cape of Good Hope: Chinese Mandarin of the
third class, with decoration of " Precious Star," third degree; Professor at Ecole
Libre des Sciences Politiques, 1886-95; Secretary of the Chinese Educational
Mission, 1877-81; President of the Council Socie'te' de Geographic, 1904;
Member of the Scientific Committee of the Ministry of Public Instruction;
Honorary Member Royal Asiatic Society; Hon. Corresponding Member of the
Royal Geographical Society; Vice-President of the Socie'te' des Traditions Popu-
laires; Socio della R. Deputazione Veneta di Storia Patria, etc. Author of
Histoire des Relations de la Chine avec les Puissances Occidentales; Atlas Sino
Coreen ; Bibliotheca Sinica ; Marco Polo. Editor and founder of the Revue de
I' Extreme Orient and of the T'oung-pas.]

IN attempting to draw in less than an hour a sketch of the history
of Asia, I am fully aware of the difficulty as well as of the grandeur of
the task which has been intrusted to me. It cannot be expected that
in the short space of time allotted to the lecturer, a complete idea
of this vast subject can be given. I can only sum up the main points
and designate the landmarks of the unbroken chain of facts which
from our days goes back to the most ancient period of the history
of mankind. When we search into the remotest past of Asia, the
geologist, not the historian, presents a very surprising spectacle to our
view: two lands stand opposite; one, to the north, shaping a long
arch round what is to-day Irkutsk; the other, to the south, consti-
tutes a portion of the future peninsula of Hindustan; a large mediter-
ranean sea, to which M. Suess has given the name of Tethys, separates
the two continents; this ocean, in gradually drying up, has by its folds
given rise to the Pamirs, the Himalayas, the high Tibetan Table-
land,— and its total disappearance and the union of the two,
northern and southern, lands gave birth to Asia.

If we seek into this vast continent for the territory having an
authentic record of the oldest times, we find it in the lands of biblical
tradition, Chaldea and Elam, where Asia tells again the story of its
past with the most irrefragable evidence in the inscriptions registered
on stones which, lying buried for centuries, have withstood the wear
and tear of ages; thus has been revealed to us the oldest code of the
world, the Law of Hammurabi, discovered at Susa by M. J. de
Morgan, and described by the Dominican Father v. Scheil, both
Frenchmen. However, if Elam carries us back to a period further than
four thousand years before Christ, other countries of Asia, including
those which are supposed to possess the most ancient civilization,
are far from giving the material proof of the high antiquity to
which their books and their legends lay an unfounded claim.

HISTORY OF ASIA — GENERAL SURVEY 87

India cannot boast of a single monument which for age is to be com-
pared with those of Nineveh and of Egypt, and before the eighth cen-
tury B.C., no solid basis to the history of China is to be found. The
perishable quality of the materials used in rearing the edifices of this
last country cannot allow us to hope that the zeal of modern archaeo-
logists will unearth the secret of monuments vanished long ago.

In the actual state of science, theories only can be imagined to
account for the genesis of Asiatic nations, and a common origin
exists but in the fancy of a few learned men. It was very natural
to look for the first migrations and the first civilizations about
Elam and Chaldea, and from this authentic and venerable source
let flow the great streams to the various extremities of Asia; it has
been possible from isolated facts to build ingenious theories like
that of Terrien de Lacouperie, but at the present time nothing
definite gives us a right to broach an opinion with regard to the
primitive inhabitants of Oriental Asia and their cradle.

When I was honored with an invitation to come and speak here,
I believed it to be expected that I should not delay too much in
treating of the ancient times of the history of Asia, and in dealing
with facts which are important in themselves, but are nevertheless
secondary in their results. What I am expected to give is a general
view, an ensemble. I shall try to show the chief influences which gave
life to the immense Asiatic Continent and to mark out the place it
occupies in the general history of the world, making large allowance
for Central Asia and the Far East, which have been the object of
my special study.

During a long time Europe remained in complete ignorance of
the steady though irregular movements of the populations of Asia,
which was really a volcano in eruption, the terrible effects of which
were felt afar. When the Roman Empire crumbling to pieces was
threatened westwards by the barbarians of Germanic race, — Teu-
tonic, Gothic, or Scandinavian, — these, pressed in their turn by the
wild hordes from Asia, like a rolling wave invaded the Empire, and
crushed in by the new-comers founded as far as Spain more or less
flourishing kingdoms at the expense of the domain of the Caesars.
The march of the Huns from the heart of Asia is in great part the
cause of these migrations of people; menacing the Chinese territory,
driving away the Yue-chi, a branch of the Eastern Tartars, who, after
several halts of which we shall speak further on, carved for them-
selves an empire on the banks of the Indus at the cost of the oc-
cupiers of the valley of this river. The invading Huns, like a huge
wave, gained gradually on from horde to horde, from tribe to tribe,
from people to people, till they reached Europe which, when struck by
the Scourge of God, could not discern whence the blow was first dealt.

88 HISTORY OF GREECE, ROME, AND ASIA

During the course of the fifth century, the Huns under Attila
had not only subdued all the Tartar nations of Central Asia, but
had also brought under the yoke the whole of the German tribes
between the Volga and the Rhine. The defeat of the great chief by
the allied armies of the Franks, the Visigoths, and the Romans at
the battle of the Catalaunic Fields (451), his death two years later,
stopped the tide of the Eastern invaders; as the victory of Charles
Martel at Poitiers (732) , three centuries later, set bounds to the throng
of Arabs, who, after having torn the north of Africa from the Roman
Empire, had crossed the sea, destroying the power of the Visigoths,
who, after a long migratory period throughout Europe, had appar-
ently found a permanent home in the Iberian Peninsula.

The invasion of the barbarians, who flocked together to share
the spoils of the agonizing Roman Empire in the fifth century, will
continue later on with the Mongol raids and till 1453, the year of the
capture of Constantinople by the Turkish Osmanlis, which we may
consider to mark the climax of the Asiatic encroachments.

We shall see the counterpart of these great movements when the
Western nations, after doubling the Cape of Good Hope, shall resume
the route of India in the course of the sixteenth century.

Buddhism, the doctrine of the disciples of Shakyamnni, has no
doubt been one of the principal means of facilitating the intercourse
of the nations throughout Asia; it has been the sun at which the
civilization of many have lit their torch; indeed a writer could say
— not without some good reason — that the history of Buddhism
is in itself the history of Eastern Asia.

The spread of Buddhism and its wider diffusion from India to the
remainder of Asia was greatly increased by the support received from
some princes and by the peregrinations of its devotees.

After the death of Alexander the Great, whose campaign against
Porus brought India into contact with the great Hellenic civilization,
one of the lieutenants of the great conqueror, Seleucus, took as
his share of the inheritance the eastern part of the Empire, but as
early as 304 he was obliged to surrender the satrapy of India to a
man of low condition called Chandragupta by the Buddhists and
Sandracottos by the Greeks. Chandragupta was the founder in
Magadha of a dynasty of princes; his grandson Asoka, surnamed
Piyadasi (died 240 B. c.), in establishing a board of foreign missions,
Dharma Mahamatra, gave a considerable extension to Buddhism,
not only in his own dominions, but also in the surrounding countries
as far as Deccan.

On the other hand, the tribes of Eastern Tartars known to the
Chinese as the Yue-chi, driven by force to the west by the Hiung-nu
(Huns), divided themselves into two branches; the Little Yue-chi

HISTORY OF ASIA— GENERAL SURVEY 89

who settled in Tibet, and the Great Yue-chi who advanced to the
banks of the Hi, and in 163 B. c. occupied, in the place of the Sakas,
the country south of the Tien-shan where Yarkand and Kashgar
now stand. Some years later the Yue-chi, pressed in their turn by the
Wu-sun, once more drove the Sakas out of Sogdiana, beyond the
Oxus, to the country watered by the Cabul River. About 35 B. c.
the leader of these Yue-chi subdued Cabul, Kashmir, and Penjal.
The conversion to Buddhism of one of his successors, Kanichka, the
greatest chief of the Yue-chi or Indo-Scyths, gave a fresh impulse to
the zeal of the followers of Shakyamuni; from 15 B. c. to 45 A. D. was
held in Kashmir the great cecumenic council which finally revised the
canon accepted in the north but rejected by the Church of Ceylon.

We may be asked at what time Buddhism reached China. We
cannot answer with any degree of certainty. Some savants give 221
and 219 B. c. as the date of the introduction of Buddhism into China;
there is nothing really authoritative to support their assertion. We
may fairly suppose that the warlike expeditions against the Hiung-nu
conveyed to China some knowledge of Buddhist worship. The new
doctrine was introduced into China by the way of Central Asia; one
thing is certain, that in the year 2 B. c. an embassy was sent by the
Chinese Emperor Ngai to the Ta Yue-chi and that its chief got some
oral information about the new religion. Buddhism was recognized
officially in China by the Han Dynasty; the dynasty of the Later Han
(24-220 A. D.) had dominated in Central Asia, and, though weak-
ened for years, their rule had been maintained with still more force
by Wu Ti, of the Western Tsin (265-290). To this period (269)
belong the documents, so interesting for the administration as well
as for the religion of this region, discovered during recent years by
Dr. M. A. Stein, of the Indian Educational Service, at Uzun Tati, be-
tween Khotan and Niya, in the desert of Takkla Makkan, explored
by Sven Hedin. Of that time also are the documents dug from the
sand-buried town of Lau-lan near the Lob-nor, by Sven Hedin him-
self. The Hindu civilization which borders on the desert of Gobi, from
Khotan to the Lob-nor, to Hami and to Turfan, vanished rapidly after
Wu Ti; under the great T'ang Dynasty, during the second half of the
eighth century, the Tibetans threatened the authority of the Chinese
in the country of the Four Garrisons (Kucha, Khotan, Karashahr,
and Kashgar), namely. Eastern Turkestan. From 791 onwards the
Tibetans, masters of Turfan and the surrounding countries, had
completely ousted the Chinese, whose mandarins had been recalled in
784 by the Imperial Government on account of the hopeless situa-
tion in the region.

The Chinese Buddhist pilgrims, eager to get the good word from
the source itself, were drawn along the roads of High Asia to the
valley of the Sacred Ganges in quest of the books giving the Key to

90

the Holy Doctrine; since the fourth century large bodies of pilgrims,
while accomplishing their pious journey, have done at the same time
considerable geographical work: Hiuen Tsang, to name the most
famous among them, not only takes a place in China with the
most revered personages of his church, but stands in the foremost
ranks of the great Asiatic travelers, by the side of the illustrious
Venetian Marco Polo. However, it was not until 1410, under the
Ming Dynasty, that the Chinese obtained at last possession of the
full canon of Buddhist Books which serves to millions of adherents
in the Far East as a guide for their conduct.

From Central Asia, Buddhism spread to China; from China, as
early as 372, it entered Korea, and thence in 552 passed on to Japan.
In the mean time it had been introduced in 407 to Tibet, where after
being severely persecuted, it has achieved its greatest triumphs,
the King of Tibet, Srongtsan Gampo, having been converted to the
new faith by his Chinese and Nepalese wives (640) . With its doctrine
Buddhism carried along everywhere this subtle art which had felt the
influence of the ancient Greeks, brought to the banks of the Indus by
the companions of Alexander the Great. From the fourth to the
eleventh century, that is to say, between the beginning of the inroads
of the Indo-Scyths and the Mohammedan Conquest of India, during
the Buddhist Middle Ages, the Graeco-Buddhist art was in a highly
flourishing state and its influence spread to the Far East.

However, in paying a just tribute to this delicate and charming art
which played so important a part in the artistic development of the
Far East, it would be unfair not to mention that the Chinese, previ-
ously to its introduction in their empire, had a national art, not
despicable in the least degree — witness this fourth century picture of
Ku K'ai-che, described by Chinese historians, happily discovered and
rescued at Pe-king during the events of 1900, and now kept safely
in the British Museum, forever we hope.1

Buddhism, now one of the three state religions in China, after
suffering persecutions in Japan from the hands of Nobunaga in the
course of the sixteenth century, somewhat somnolent for many years,
is at present in a period of magnificent renaissance in the Empire of
the Rising Sun, where the labors of Bunyiu Nanjio and of Takakusu
secure for it an important place. Many Japanese scholars, fascinated
by the doctrines of evolution, think these are to be found in Buddhism.

Christianity spread at first in Central Asia under the form of
Manicheism and of Nestorianism; only recently the Mo-ni, lost
among the numerous religious sects mentioned by Chinese historians,
have been with some degree of certainty identified with the disciples
of Manichee, who played but a small part compared with that of the
1 Cf. Burlington Magazine, January, 1904; T'oung-pas, July, 1904.

HISTORY OF ASIA — GENERAL SURVEY 91

Nestorians arrived in China in the seventh century, as the celebrated
inscription of 781 discovered in 1625 at Si-ngan-fu, capital of the
Shen-si Province, testifies. Under the Mongol Dynasty of Chinguiz
Khan, in the course of the thirteenth century, Nestorians through
Tangut and Central Asia, from Khanbaliq (Pe-king) to Bagdad, held
an unbroken line of archbishops and bishops; the innumerable
stones which cover their graves, especially in the province of Samirie-
thie, bear witness to the number and importance of these Nestorians.

From the time of St. Louis and the meeting of a Council at Lyons,
we trace the great progress of the Missions of the Roman Church.
The Catholic world of Central and Western Europe was full of zeal
for the propagation of the Gospel in Asia, where the somewhat
mythical Christian prince known under the name of Prester John
lived, and cherished also the hope to oppose invading Islam with a
barrier of Mongol tribes. Hence the missions of the Franciscan
brother John of Piano Carpini, sent in 1245 by Pope Innocent
IV to the camps of Batu and of Cuyuk Khan, and of the Dominican
monk William of Rubruk, dispatched by the King of France, St.
Louis, in 1253, to the court of the Great Khan Mangu at Karakorum,
whose journeys have been edited with so much skill and care for the
Hakluyt Society by our President, the Hon. William W. Rockhill.
Missionaries were dispatched to Khanbaliq (Pe-king), to the Fu-Kien
province, to Central Asia, and bishoprics were created at Khanbaliq,
at Zaitun, and at Ili-baliq. All these missions disappeared in the
course of the fourteenth century, either destroyed in Central Asia
by the influx of Mohammedanism or on account of the accession of
the Ming Dynasty to the throne of China in 1368.

Missionaries returned to China only in 1579, but the evangeliza-
tion in this country was in truth the work of the Jesuit Fathers
and especially of the celebrated Matteo Ricci, who died at Pe-king
in 1610. Christianity, which was very flourishing in the seventeenth
century, soon declined, owing to the petty quarrels between religious
orders, and the bull of Benedict XIV, Ex quo singulari, dealt to the
missions a death-blow in 1742, as it proscribed the liberal doctrines
advocated by the Jesuits in the worship paid by the natives to Con-
fucius and to their ancestors.

Protestant missions in China are of a far more recent origin; they
do not go back further than the beginning of the nineteenth century,
when the famous Dr. Robert Morrison, author of a great Chinese
Dictionary, sent by the London Missionary Society, arrived at
Canton in 1807. The number of missionaries is now very great,
and many of them are American. I may recall among them the
names of two distinguished sinologues: Elijah Coleman Bridgman,
of Connecticut, and Samuel Wells Williams, of New York, who was
several times charge d'affaires of the United States at Pe-king.

92 HISTORY OF GREECE, ROME, AND ASIA

In spite of the zeal, the activity, and the devotion displayed by
both Catholic and Protestant missionaries, we cannot say that their
success in China has been considerable or their action deep. The
Chinaman is not hostile to Christianity; he is indifferent; he finds in
the moral system of his great sage, Confucius, the precepts which
guide him in private and public life; he takes in the doctrines of
Buddha, the practices of Taoism, the superstitions of Feng-shui,
all that is necessary to him in the question of religion. Christianity
is still for the Chinaman a foreign religion, the superiority of which
has not been made so clear to his eyes as to induce him to adopt it
as a matter of course; and though the religion of Christ met with
almost unrestricted success among the pagan nations forming the old
Roman Empire, or amid the wild tribes of modern Africa, Oceania,
and America, it has entirely failed with the Far Eastern peoples, indif-
ferent or atheist. If I dared say what I think, I should add that the
destruction of Chinese society as it exists at present could alone
secure the triumph of Christianity, and the literati understand this
so well that they, and not the people, are hostile to its spread.

Though the number of the followers of Islam in China be far in-
ferior to that of the Buddhists, the disciples of Mohammed have
nevertheless played a considerable part in the Middle Kingdom.

The Arabs called Ta-zi were known to the Chinese, who mention
them in the annals of the T'ang Dynasty (618-907), through Persia,
the name of which appears for the first time in the Chinese annals
(461) in connection with an embassy sent to the court of the Wei
sovereigns. During the eighth century the Bagdad Abbassides and
their celebrated Khalif Harun ar-Rashid joined with the Uigurs and
the Chinese against the Tibetans, their common enemy. A fact inter-
esting to note, is the presence of Ta-zi in the kingdom of Nan-Chao,
a part of the actual Yun-nan Province, as early as 801.

The Arabs built at Canton a large mosque, which was burnt down
in 758. In the course of the following century, in 875, the Mohamme-
dans transferred their business from Canton to the Malay Peninsula,
at Kalah, which inherited the commercial importance of Ceylon in the
sixth century. Western visitors at the court of the Mongol Khans
mention a number of high Mussulman dignitaries. We shall see that
in the eighteenth century K'ien-lung annexed to his empire the
T'ien-Shan, part of the share of Jagatai in the inheritance of his
father, Chinguiz Khan. Without going into the particulars of the
rebellions which devastated Central Asia, we shall recall that in
1864, a soldier of fortune, Yakub, captured Kashgar and the other
towns south of the T'ien-Shan, thus creating a Mohammedan power
in Northwestern China between the possessions newly acquired by
the Russians after the storming of Tashkant (June 27, 1865) and

HISTORY OF ASIA — GENERAL SURVEY 93

the Anglo-Indian Empire. For some time, Yakub was the undis-
puted and redoubtable sovereign of a real empire, with Yarkand as
a capital. England dispatched to Yakub special missions with Sir
Douglas Forsyth at their head in 1870 and in 1873; in 1872 the
Russian staff-colonel Baron Kaulbars signed a treaty of commerce
with the Mohammedan potentate. Yakub's rule was ephemeral and
ended with him when he died on the 29th of May, 1877; in fact,
the Chinese general Tso Tsung-tang had subdued a great part of his
territory, the conquest of which he completed after the death of the
Ameer.

Another outburst of the Mohammedans, caused by a quarrel be-
tween miners of different creeds and conflicting interests, took place
about 1855 in Southwestern China, in the Yun-nan Province, and it
led to the creation of a sultanate at Ta-li, which lasted till the cap-
ture of this stronghold by the Chinese Imperial troops on the 15th
of January, 1873.

China, which is the main subject treated of in this general view,
was in fact isolated only in the ancient times of her history, when her
territory, watered by the Yellow River, hardly extended beyond the
right bank of the Yang-tse Kiang. From the fourteenth century
the land route to China was closed, and the foreigners who arrived
by sea at the beginning of the sixteenth could at Canton only
hold any intercourse with the Chinese, who got their scanty infor-
mation about distant lands from the Canton merchants and the
missionaries submerged in the enormous mass of the empire. The
Cossacks who came from the north in the sixteenth and seventeenth
centuries added little or rather nothing to this knowledge. It seems
paradoxical, but it is nevertheless exact to say that China was opened
to Western civilization and influence by the British gun. In the Middle
Ages, China had the benefit of some extraneous ideas through Buddh-
ism imported from India and through the Mongols who served as a
link between Europe and Asia. China herself broke her own bounds ;
like the Persian and Arab merchants visiting her ports, her own
traders penetrated to the farthest extremity of the Persian Gulf.
At different times she held Annam in bondage; she tried to conquer
Burmah and Japan, but failed; her influence was all-powerful in
Korea, and she carried on her explorations to the Islands of Sunda,
which soon became one of the favorite spots of her emigration.

With the Chinese Dynasty of the Ming, which replaced in 1368
the Mongol rule in the Middle Kingdom, China assumes the definite
form under which she is known henceforward to the foreigner. The
Manchu Conquest in 1644 brings a fresh element into the country,
but the new-comers are soon absorbed; they add to the Chinese
Empire the land from which they come and which constitutes to-day

94 HISTORY OF GREECE, ROME, AND ASIA

the northeast region of the Empire, the actual theatre of the strug-
gle between Russia and Japan.

With the annexation of the Tien-Shan by the Emperor K'ien-lung
in 1759 and the seizure by this prince of the temporal government
of Tibet, the Chinese Empire reached the boundaries which it has
retained until recent years. It is not speaking with disparagement
or injustice to say that the Emperors K'ang-hi and K'ien-lung in
the seventeenth and eighteenth centuries were in every respect
equal or even superior to most of the contemporary princes. It is
hardly possible to recognize as the heirs of these great men sover-
eigns like Kia-K'ing, Tao-Kwang, and specially the stupid and cruel
Hien-Fung (died 1861).

With the exception of the creation of a Great Council and the
superposition of Manchu dignitaries upon Chinese functionaries, the
Chinese administration stands unchanged, and the moral precepts
of Confucius continue to guide the conduct of all the Chinese from
the lowest of the people up to the Son of Heaven. The era of inven-
tions is closed, the fine literary productions of the T'ang period, and
the great philosophical works of the Sung Dynasty do not find any
equivalent during the next centuries. China did not see, and will not
see anything; her glance did not extend beyond the seas, nor even
beyond her Great Wall; she shut herself up, and living, so to speak,
on her own stock, having at an early hour reached a high state of
civilization, she stopped in her development. In some manner she
became "crystallized," to use Stendhal's expression, and during this
operation other nations have grown, have surpassed her, have inter-
fered with her peaceful existence, thus awakening her in her sleep,
compelling her to abandon her voluntary isolation and to accept
a promiscuity which is particularly distasteful and odious to her.

The decline of China coincides with the efforts of the Western
Powers to break her doors open. Until the middle of the nineteenth
century, with the exception of a few Catholic missionaries retained
as savants at the court of Pe-king or hidden in the provinces, where
they led a precarious existence, foreigners were lodged in a quarter of
the single port of Canton without the right of moving freely about
the city; moreover, they could only stay at the place the time
strictly necessary to the settlement of their affairs, that is to say,
during a pretty short portion of the year; afterwards they had to
return to the Portuguese Colony of Macao, where lived their families,
who were not allowed to accompany the cargoes to the Chinese port.
Business was not conducted freely with the natives, but through the
medium of privileged merchants, called hong merchants, whose mono-
poly was finally abolished by the fifth article of the treaty signed at
Nanking by England August 29, 1842. Wanton vexations were in-

HISTORY OF ASIA — GENERAL SURVEY 95

flicted upon foreigners; it was forbidden to the natives to teach their
language to any "Western Devil" (Yang-kwei-tse) ; the lex iali-
onis, man for man, was applied with all its cruelty and injustice.

This state of things lasted till the Opium War, which gave Eng-
land the means of opening China more widely to the foreign trade
and of making the way for the introduction of Western ideas, with-
out abating, however, the arrogant pretensions of the mandarins.

In the course of the sixteenth century began the double march
toward China, by the north and the south, by land and by sea,
which brought into contact the nations of the Occident and those of
the Far East. Ermak's Cossacks were the pioneers of the northern
route, Vasco da Gama's sailors and Albuquerque's soldiers were the
pilots and the conquerors of the southern route.

To the Portuguese we owe the discovery, or more exactly the
reopening, of the road of Asia in modern times. The cape dis-
covered by Bartholomew Diaz in 1485, doubled by Vasco da Gama
in 1497, was the great port of call from Europe to Asia, until the
ancient way of Egypt was resumed during the nineteenth century.
Masters of the Indian Ocean, the capture of Malacca in 1511, their
first voyage to Canton in 1514, a wreck in 1542 at Tanegashima, in
the Japanese Archipelago, gave to the Portuguese the possession
of an immense empire and the control of an enormous trade which
they were not able to 'keep. The annexation of Portugal to Spain,
"The Sixty Years' Captivity," under Philip the Second, was as
harmful to the first, drawn by its conqueror into a struggle fatal
for her prosperity, as was to the Dutch colonies the absorption of
Holland by Napoleon I.

The Spaniards settled in the Philippine Islands; the Dutch, with
the enterprising Cornelius Houtman, landed in 1596 at Bantam,
created the short-lived colony of Formosa, and a lasting empire
in the Sunda Islands, where in 1619 they laid the foundations of the
town of Batavia, on the ruins of the old native port of Jacatra.

However, one may say that England really opened Eastern Asia
to foreign influence, at least by sea, from the day in 1634 when the
gun of Captain Weddell thundered for the first time in the Canton
River. It was with the accompaniment of British powder that during
two centuries the countries of the Far East carried on trade with the
Western merchants. It was on sea, and of course by the south, that
England fought for the supremacy in Asia.

A terrible struggle in India against the French, where Clive and
Hastings got the benefit of the labors and exertions of Fra^ois Martin,
Dumas, Dupleix, and others, three wars against the Mahrats, the
conquest of the Punjab, the crushing of the great rebellion of 1858,
the suppression of the Empire of the Great Mogul, have secured to

96 HISTORY OF GREECE, ROME, AND ASIA

Great Britain the possession of the Indies, threatened only as of yore
by the northwestern invaders. Three lucky campaigns have given
Burmah to England, already master of the greater part of the Malay
Peninsula.

The treaty signed by Great Britain at Nanking in August, 1842,
broke up the Chinese barrier; the various Powers followed in emula-
tion the example of England; the United States, France, Belgium,
Sweden and Norway, by turn signed treaties or conventions with
the Son of Heaven. At that time England was truly without a rival
in the Far East, but was not far-sighted enough; the pledge she took
at Hong Kong, important as it was, was but a small one with regard
to the hopes of the future. England gave back to the Chinese the
Chusan Islands, which had been in her hands, as the French returned
the Pescadores after the settlement of the Tonquin question; of
course, loyal and honest acts, but also acts of improvident politics.

To-day England has lost the unique situation she held sixty years
ago. In all the peoples of the world, she has found eager competitors
anxious to share with her the prey of which for a long time she
was alone covetous, alone capable of making the necessary effort to
grasp it firmly.

France, which had formerly but a moral interest in the Far East,
that of the Catholic missions, has now a solid ground of action, as
a consequence of the conquest she made of the oriental part of Indo-
China, while England subdued the western coast of this peninsula.

The colonization or the conquest by European nations tends to
diminish, to restrict, and especially to modify in Indo-China the
effect of the pacific or military invasions of Hindus and of the Sons
of Han. The struggle in Indo-China is limited to-day to two cham-
pions; the Chinese and the foreigner, wherever he comes from —
England, France, or even Japan. The native, capable of slight or
passive resistance only, will have in the scale but the weight of his
master, who may not be of his own choice.

However, the two facts dominating the political history of the Far
East during the last fifty years are the spread of the Russian power
through Asia on the one hand, and the revolution and the trans-
formation of the Japanese Empire on the other.

During the reign of Ivan IV, in the middle of the sixteenth cen-
tury, to the east of the Ural Mountains began this tremendous
march of the Russians which drove them beyond the sea, since the
authority of the Tsar was formerly extended to this side of the
Straits of Behring; indeed, it was but in 1867 that the Russian
possessions in America, Alaska, were acquired by the United States.
The unification of the states of Great Russia, the conquest of the
Tartar Kingdoms of Kazan (1552) and of Astrakhan (1554), removed

HISTORY OF ASIA — GENERAL SURVEY 97

the boundaries of Russia to the east; the Russian advance to the
Baltic had been stopped by the victories of Stephen Bathory; the
East only was left open to their enterprise.

In 1558 a certain Gregori Strogonov obtained from the Tsar the
cession of the wild lands on the Kama River. With some companions
he settled in that region, created colonies, and some of the hardy
fellows went as far as the Ural Mountains. An adventurous Cossack
of the Don, Ermak Timofeevitch, whose services had been secured by
Strogonov, crossed the Ural Mountains at the head of eight hundred
and fifty plucky men, and advanced as far as the Irtysh and Ob rivers,
on the way subduing the Tartar princes. Ermak was the real con-
queror of Western Siberia, but if he had the luck and the glory of
adding a new kingdom to the states of the prince who has been sur-
named the Terrible, to his immediate successors was due the founda-
tion of the first town in the territory snatched from the Tartars, for
Ermak was drowned in the Irtysh in 1584, and Tobolsk dates only
from 1587. The effort of the Russians was then directed to the north
of Siberia; they did not meet with any resistance until they reached
the Lena River; in 1632 they built the fort of Yakutsk on the banks
of this river, and pushed their explorations on to the sea of Okhotsk.
In 1636 tidings of the Amoor River were for the first time heard
from Cossacks of Tomsk, who had made raids to the south.

Vasili Poyarkov (1643-46) is the first Russian who navigated the
Amoor from its junction with the Zeia to its mouth. In 1643-51 ,
Khabarov led an expedition in the course of which he built on the
banks of the river several forts, Albasine among them. In 1654,
Stepanov for the first time ascended the Sungari, where he met
the Chinese, who compelled him to trace his way back to the Amoor.
In spite of all their exertions, after two sieges of Albasine by the
Chinese, the Russians were obliged on the 27th of August, 1689,
to sign at Nerchinsk a treaty by which they were driven out of the
basin of the Amoor.

The Russians, bound to carry their efforts to the north, subdued
Kamchatka. What is perhaps most remarkable in the history of
the relations of the two great Asiatic empires is the tenacity of the
Muscovite grappling with the cunning of the Chinese, and the com-
parison between the starting-point of these relations, the Russia
of Michael and Alexis and the China of K'ang-hi, and their culminat-
ing-point in 1860, when these very nations shall have passed, one
through the iron hands of Peter the Great and become the Russia
of Alexander II, and the other under the backward government of
Kia-K'ing and Tao-kwang and become the China of their feeble suc-
cessor Hien-Fung. Only on the 18th of May, 1854, did the Governor-
General Muraviev navigate again the waters of the Amoor River; on
the 16th of May, 1858, he signed at Aigun a treaty which made the

98 HISTORY OF GREECE, ROME, AND ASIA

Amoor until its junction with the Usuri the boundary between the
Russian and Chinese Empires, the territory between the Usuri and
the sea remaining in the joint possession of the two Powers, but
after the Pe-king Convention (2-14 November, 1860) this land was
abandoned to Russia and the Usuri became the boundary. In the
mean time, the treaty signed at T'ien-tsin by Admiral Euthymus
Putiatin (1-13 June, 1858) secured for Russia all the advantages
gained by France and England after the occupation of Canton and
the capture of the Taku forts.

The second Russian move had Central Asia as its aim; it was the
result of the foundation of the town of Orenburg, the exploration of
the Syr-Daria by Batiakov, the building of Kazalinsk (1848) near
the mouth of this river; the unsuccessful effort of General Perovsky
(1839) turned the enterprise of the Russians to the Khanate of Kho-
kand; the storming of Tashkend by Colonel Chernaiev on the 27th of
June, 1865, was the crowning point of the conquest of Turkestan by
the Russians. The road to the T'ien-Shan had already been opened
to the Russians by the treaty signed at Kulja (July 25— August 8,
1851) by Colonel Kovalevsky, which, however, was known only ten
years later (28 February— 11 March, 1861).

While Yakub Bey had founded, as already seen, a Mohammedan
Empire in the T'ien-Shan Nan Lu, the Russians took possession
of the Hi Territory on the 4th of July, 1871. The retrocession of
this territory to China after the death of the Attalik Ghazi was the
cause of long and difficult negotiations between Russia and China,
which ended writh the treaties of Livadia (October, 1879) and of
St. Petersburg (February 12-24, 1881). Russia restored the lands
which she detained illegitimately, keeping, however, a small portion ,
not the least valuable of the lot.

The third Russian move was aimed at the countries beyond the
Caspian Sea, and was the result of the conquest of the Crimea by
Potemkin in the name of the great Catherine, and of the treaty of
Kutschuk Quainardji (1774), which gave to the Russians the free
navigation of the Black Sea. Under the reign of Nicholas I,
Putiatin established a permanent maritime station on the Island of
Akurade in the Gulf of Astrabad, and a line of ships on the Caspian
Sea, securing from the Persian Government facilities for Russian
fishermen and traders on the southern coast of that sea.

At last, in 1869, Russia took a definite position on the eastern coast
of the Caspian Sea in settling at Krasnovodsk. Later on the break-up
of the Turkish barrier of Geok-tepe by Skobelev, the occupation of
the Oasis of Merv by Alikhanov, the capture of Samarkand, made
of the Transcaspian country a Russian possession, rendered Russian
influence paramount in the north of Persia, and threatened Herat and
the route of India. The railway which the ingenuity and tenacity of

HISTORY OF ASIA — GENERAL SURVEY 99

Annenkov threw across the burning desert, united the Caspian Sea to
Bokhara and Samarkand, crossing the Oxus at Charjui. The continu-
ation of this railway from Samarkand to Tashkend and the Siberian
line was to place the whole of Asia beyond the Ural Mountains and
the Caspian Sea in the hands of the Russians.

It seems as if nothing could put a stop to this expansion; on the
contrary, the bold and rapid construction of a railway across the
frozen steppes of Siberia was to unite Russia directly with the Far
East by an unbroken chain; the ports of Manchuria and Korea,
watered by the seas of China and Japan, being considered the termini
of the long line.

Work on the western part of the Siberian Railway began on July 7,
1892. Its extension beyond the Baikal Lake was to take it on the
one hand to Vladivostock at the eastern extremity of the Russian
possessions in Asia, and on the other to Port Arthur in the south
of the Liao-tung Peninsula. It was fair to think that the point
where the two lines met, in the very heart of Manchuria, should be-
come a most important centre of industry and population; indeed,
this has been realized, and in a few years, in the place of a barren
spot, the considerable town of Kharbin (Harbin) has been built in
the twinkling of an eye, so to speak.

Russia weighs with its enormous mass on the Asiatic Continent like
a gigantic polyp, whose head and body press on Siberia and Central
Asia, with tentacles stretching toward Korea, Manchuria, Mongolia,
Tibet, Afghanistan, Persia, Asia Minor, ready to close them on the
prey which she encircles, and which is disputed to her by other
nations anxious to take their share of the plunder, thus creating
a permanent state of uneasiness throughout the Continent.

While Russia was making this enormous extension in the northwest
of Asia, Japan was pursuing the series of reforms which were to
secure for her a very special position in the concert of the nations of
the world. Previous to the revolution of 1868, which altered entirely
the state of things in Japan, a real duality in the government existed
in this country; while the Tenno, or Mikado, the only Emperor,
reigned nominally at Kioto, the power was held in fact by the Shogun,
a sort of Mayor of the Palace, residing at Yedo. From lyeyas, at the
beginning of the seventeenth century, who gave to feodality the
definitive constitution which lasted to our days, the power remained
in his house, that of Tokugawa. The foreigners who landed in Japan
in the sixteenth and the beginning of the seventeenth century -
Portuguese and English — were expelled in 1637, and by the end of
1639 the Dutch and the Chinese were the only outsiders allowed to
live on the islet of Deshima, in the Bay of Nagasaki , in order to supply
the Japanese with the goods they required.

100 HISTORY OF GREECE, ROME, AND ASIA

This state of things, notwithstanding the attempts vainly made
by Great Britain and Russia during the first years of the nineteenth
century, was to last until the arrival of the American Commodore
Matthew Calbraith Perry, who in July, 1853, anchored at Uraga
at the entrance of the Bay of Yedo, and who signed on March 31,
1854, at Kanagawa, the first treaty concluded between Japan and
a foreign power.

Was the revolution of 1868 for Japan but one of the numerous
crises which troubled its already long and not too serene existence?
Was it a mere accident for that country, progressing by jumps
and bounds and not by evolution? or was it the starting-point of
a civilization copied from that of Europe? Has she covered only the
old culture of Yamato with a superficial varnish? Has she completely
destroyed it to replace it by a new one? I greatly doubt it, or rather
I do not believe it, as it cannot be that in some fifty years a radical
transformation can reach the deeper layers of the population. The
Japanese obey two motives in their warlike undertakings; one is
dictated by a tradition of war, by an unsurpassed bravery of which
they have given undeniable proofs for centuries; the other by reasons
of a purely economic order. Japan is at heart a warlike nation; in
every man of Nippon, the soul of a samurai is asleep. No, a people
cannot be modified in a few years.

Japan has behind her a past of struggles, heroism, and art, with
very little original literature. Endowed with the genius of application
more than with that of invention, with no great commercial aptitude,
a hero or a pirate according to circumstances, full of imprtvu, as his
tradition borrowed from strangers does not trace to him a firm line
of conduct, the Japanese lives on reminiscences and is, above all, an
imitator; he is not gifted with imagination; an artist and a warrior,
he is not a philosopher. Does he give us now more than the appear-
ance of a Western civilization? I hope so for the sake of Japan herself,
as, if it were otherwise, we should have but a fragile edifice erected
by a superficial as well as a versatile people. What an interesting and
curious sight it offers to the gaze of the observer!

In the midst of the peoples which from the West and the East
rush to the assault of the Middle Kingdom, Japan stands as a young
and vigorous power which, in 1868, by a revolution without a parallel
in the history of mankind, transformed herself from a nation most
hostile to foreign intrusion to one of the most progressive of the
globe. We may seek in great part the solution of the Asiatic pro-
blem in the future of Japan, which acts a part in no way inferior to
that of the Westerners, and which finds itself to be the stumbling-
block to the ambitious designs of the foreign powers. Will Japan
be at the head of the invaders come from near and far, as at Pe-
king in 1900? Will she be, on the contrary, having galvanized the

HISTORY OF ASIA — GENERAL SURVEY 101

old man, the champion of the Asiatic World to repel the common
enemy?

It is fair to believe, in reviewing the history of the past and in
studying the various aspects of present politics, that Japan would
prefer the second of these parts, more in accordance with her tra-
ditions and her aspirations.

It is evident that two nations in full progress, operating in the
same field of action, would fatally meet some day. If Russia needs
a port free from ice in the Eastern Sea, Japan has a no less imperi-
ous necessity of finding room for its population in excess. From five
thousand four hundred and forty- three in 1880, the number of the
Japanese living out of their country increased in 1902 to one hun-
dred and thirty-nine thousand five hundred fifty- three, scattered
chiefly between Korea, Canada, the United States, the Hawaiian
Islands, etc.

The Treaty of Shimonoseki (April 27, 1895), signed after a glorious
war with China, had given to Japan the southern portion of Man-
churia, including Port Arthur. The triumph of the Emperor of the
Rising Sun made of an Asiatic potentate like the Mikado a sovereign
whose voice was heard in the whole of the world; from a local power,
Japan took rank among the great powers of the globe. In the con-
quest of Manchuria, Germany, France, and Russia perceived a danger
to European influence in the Far East, and by a convention on No-
vember 8, 1895, obtained the retrocession of Liao-tung by Japan to
China. It was no doubt a severe wound to the amour propre of the
victor.

In the mean time Russia continued to increase her means of action
and to strengthen her position in the Far East by the creation at the
end of 1895 of the Russo-Chinese Bank, by conventions regarding the
Manchurian Railway, and by the signature in 1896 at St. Petersburg
by the Viceroy Li Hung-chang of a treaty still secret.

After the massacre of two of her missionaries, Germany having
taken possession of Kiao-chow on November 14, 1897, Russia shortly
after obtained the cession by lease of Port Arthur (December, 1897).
England, in gaining a settlement at Wei-Hai-Wei and France at
Kwang-chow-Wan, seemed to begin the partition of the Chinese
Empire. At one moment the old Manchu world seemed to awaken
to the danger; at one moment the Emperor Kwang-siu had no doubt
the real instinct of the situation. He had shown dignity and bravery
when he refused to fly to the west, as was suggested to him by his
timorous ministers at the time the Japanese threatened his capital
in 1895.

The demands of the foreigners who appeared to seek the dismem-
berment of the Empire and threatened to make a new Poland of

102 HISTORY OF GREECE, ROME, AND ASIA

China, frightened the Manchu monarch, who felt strongly — in so
far as his weakened health and a superior will allowed — the wish
to transform his country. It was but a flash of lightning in a dark-
ened horizon. In order to succeed, it would have been necessary for
Kwang-siu to have at his command, with his handful of bold but
busy-body reformers, a solid army, capable of preventing a reaction.
But this army was lacking to the Chinese Emperor, who made the
generous but abortive attempt to introduce reforms in which he
lost at once the power and the appearance of energy which he had
for a brief period displayed.

On June 10, 1898, Kwang-siu began the series of reforms, the
ephemeral course of which was stopped on September 30 of the
same year by the Empress Dowager, the reactionary party, with
her, retaking the power. What followed, the rebellion of the
Boxers; the siege of the foreign Legations at Pe-king, in 1900, is
fresh in the memory of all. It is but just to note, as the Japanese
Prime Minister, Count Katsura, remarked quite recently, that during
all these events Japan has filled her duty as a civilized nation by
the side of the Western Powers.

The causes of the present gigantic struggle appear forcibly to
every one's eyes, but to say the least, the place to discuss them is
not in a scientific congress; however, it is not forbidden to foresee
some of its results and the effects these may have on the general
politics of the universe. If Japan is in our days the only nation
capable of waging a war for the sake of heroism, a rare virtue in
our matter-of-fact societies, it is nevertheless true that in the pre-
sent struggle economic interests were the main motives; as we have
said already, Japan has neither the room nor the food with which to
supply the surplus of her population; she is compelled to look beyond
her own boundaries for the necessaries of common life. Internal
motives also dictate partly her conduct.

The extension of nations is in nearly every case directed according
to natural though at times cruel lawrs; often these are in contra-
diction to the laws of civilization; so we see, in spite of treaties, in
spite of associations for peace, in spite of leagues for promoting
fraternity between nations, in spite of arbitration committees or
tribunals, war breaks out suddenly, irresistibly, when vital economic
interests are at stake. Nations go back to the state of primitive
man, and the right of the stronger becomes the rule.

It must not be forgotten that if Japan needs an extension of terri-
tory for her excess population, she has the need scarcely less im-
portant of keeping up her communication with the various nations
among which she desires to hold her rank. The construction of the
Siberian Railway, in shortening the time of the journey from Europe
to Asia, has also practically shortened the distances. Until the

HISTORY OF ASIA — GENERAL SURVEY 103

problematic project of building a railway to unite the Mediterranean
Sea to the Far East by the way of Persia and India shall be carried
out, and whatever be the result of the present war, Russia will hold
the highway of intercommunication between Europe and Asia; less
than any other nation can Japan afford to give up the use of this
route, and being thus dependent upon the Russians cannot keep in
a state of perpetual hostility with them.

During a long time, we had in Europe the bad habit of studying
separately the various political problems and of seeing only partic-
ular cases in what were really but the secondary effects from general
causes. Nowadays, there is not a single problem of foreign politics
which can be treated with indifference. Whatever be the part of the
globe- where the gun thunders, the repercussion of it is felt in the
capitals of the whole world; special questions become questions of
general interest, and the effort of diplomacy to avoid a universal
conflagration tends to circumscribe the struggle between those chiefly
concerned; the task is rendered the more arduous in that the multiple
treaties or alliances between nations extend the limits of the debates
and thus increase the chances of a general conflict.

Europe used to consider Asia, except in her western part, as a
domain where events rolled on without any distant effect and having
therefore but an interest of mere curiosity. China, Bossuet could
pass over in silence, that is to say the third of the total population of
the globe, in his Discours sur I'Histoire Universelle, a very poor work
by the bye, admired only by those who have not read it. However,
during the course of the fifth century the invasion of the barbarians,
and in the thirteenth the raids of the Mongols, should have opened
the eyes of the most blind of observers. And these considerable
events were not the result of fortuitous causes, but the natural con-
sequence of important events which had happened in the interior
of Asia, while our ancestors had not the faintest suspicion of them.

Moreover, the great navigators of the sixteenth century unraveled
the mystery which shrouded the remote countries and helped to
make clear the interest Europe had in knowing them better, and
let us say, with frank cynicism, in speculating upon them.

The first attempts to create factories, then the conquests at the
end of the seventeenth and during the eighteenth centuries, showed
that Europe had abandoned her majestic indifference, and was feeling
the necessity of a policy which reached beyond the horizon bounded
by her small and greedy continent.

At the close of the wars of the First Empire, as soon as peace is
signed, we see the Western nations resume the routes to Asia, for
a short period neglected. England in India and China, the Dutch
in the Spice Islands, France in Indo-China, later on the Russians

104 HISTORY OF GREECE, ROME, AND ASIA

in Central Asia, then in the basin of the Amoor River, all rush to
the conquest of new territories; appetites are sharpened, rivalries
created; means of more rapid locomotion shorten distances; a new
nation, Japan, is born to civilization, or to what it pleases us to call
civilization; and Central and Eastern Asia, being no more isolated,
are dragged into the inharmonious concert of universal politics.

The Chinese problem, simple in 1842, when England signed the
treaty of Nanking, became more complicated from year to year by
the introduction of fresh and powerful interests, following in this the
ordinary laws of politics. The arrival of the Russians by the north,
the transformation of Japan to a modernized empire, the occupation
of Indo-China by France and England, the taking possession of two
Oceanic archipelagoes by the United States, the newly born colonial
ambitions of Germany, new means of transport with a rapidity which
could not be foreseen half a century ago, at last the magnificent
prey at stake, made the problem, so simple at first, one of increas-
ing complexity.

The Chinese question, which is but one of the aspects of the foreign
politics of some nations, such as France, the United States, and even
England, is vital for Japan, to a lesser degree for Russia, which by
a check will only be delayed in her designs for a more or less pro-
tracted period. Political problems are interwoven one with another;
Far Eastern problems are connected with Oceanic problems, and
among the Powers who are to play a part in the Pacific, we must
reckon the young and active British Colony, the Commonwealth
of Australia, which is beginning its international life and will one
day be called upon for some considerable deeds. In this rapid sur-
vey I can make but a passing allusion to the certain effect which
the accomplishment of the great work of cutting a canal across the
Isthmus of Panama will bring into the relations of the whole world.

In fifty years the alterations in the ways of intercommunication
have completely changed not only the politics of Asia but also
of the rest of the world. China, which, in 1842, had to stand but
against Great Britain, in 1858 had to reckon, besides this Power,
with France, the United States, and Russia. The most audacious
people might hesitate to undertake remote expeditions involving a
journey of several months by the Cape Route; the way of Siberia,
taken again by the Russians led by Muraviev (1856), was long and
difficult; the opening of the Suez Canal (1869), coinciding with im-
provements to the steam-engine, permitted the establishment of more
direct and frequent relations between the peoples of the West and
those of the Far East; finally the completion of the Siberian Rail-
way during recent years, placing Pe-king within three weeks from
Paris and London, could not longer allow any European country

HISTORY OF ASIA — GENERAL SURVEY 105

to remain indifferent to the fate of Eastern Asia. We see just the
reverse of what happened in the course of the fifth and thirteenth
centuries when we witnessed the movement, the delayed ebb tide
of a wave rolled from the depths of Asia, which will resume its old
course in the near future if we may believe in the predictions of
ominous prophets.

The laws which regulate the existence of peoples are similar to
those which govern the lives of individuals. Man is born, lives, dies ;
nations have their periods of growth, climax, transformation, decline,
and disappearance; this disappearance is not nothingness, which is
meaningless; it is no more total in a nation than in the individual,
as, according to Lavoisier's celebrated formula, "In nature nothing
is created, nothing is lost"; the scattered elements go toward the
constitution of new nationalities.

The adult age of a nation, that is. to say the highest pitch it has
reached, is the period when it has completed its complete unity for
which it struggled during the time of its growth. This period of
highest prosperity can last a shorter or longer lapse of time, but
all bodies which carry in themselves the germs of their development
contain also the elements of their decay, which appear sooner or
later according to circumstances.

China has known brilliant periods in her history, such as that of
the T'ang Dynasty from the seventh to the ninth centuries, a time
which the Chinese people still remember gratefully; such as that of
the Mongol supremacy in the thirteenth century, when the power of
the Great Khans extended from the Chinese Sea to the right banks
of the Volga.

China has even known a period of splendor under the first sovereigns
of the present Manchu Dynasty, the great emperors, K'ang-hi and
K'ien-lung; from the River of the Black Dragon to Indo-China,
from the Oriental Sea to the Celestial Mountains and the mysterious
capital of the Dalai-lama, the name of the Son of Heaven was feared
and respected; then shone upon the Flowery Kingdom an incom-
parable eclat ignored by the contemporary Westerners, similar in
this respect to the Chinese of to-day who do not know the real force
of occidental nations.

. Immobility, as is the case with China, when all the others are pro-
gressing, is not stability; it is retrogression; rivals and competitors
are advancing without any rest. Woe to-day on the people who in
the scramble of nations tries to stop; it is drawn forcibly along,
uprooted like the proud tree carried in its mad race by the tumultuous
flood.

Has the decline of China, which began with the nineteenth century,
and had increased from reign to reign, reached now the last period
of the crisis? I believe it; but we are witnessing an evolution, not

106

a disappearance. In fact, only the system of government and those
who administer it are worn out and corrupt and have served their pur-
pose. The Chinaman has always preserved his sterling qualities:
honesty, sobriety, inclination to work, love of his family, attachment
to his home, which are his characteristic traits, have given him vitality,
increased his longevity, and constituted his real strength. The
Chinese absorb their conqueror, who disappears in the strong indi-
viduality of the vanquished, as a stream, less powerful in appear-
ance, often captures the neighboring watercourse, more important
but ill-protected against an enemy of whose existence it is unaware.
The warlike Mongol of the Middle Ages has become a peaceful shep-
herd of flocks, and the fierce Manchu invader of the seventeenth
century is now but one of the innumerable functionaries who crowd
the administrative hierarchy of the Celestial Empire. The evolu-
tion of China has hardly commenced as yet; a few isolated reformers
can have no real influence upon so vast an empire. Railroads will
be the conqueror of China; the steam-engine will carry through the
whole empire ideas — not French, English, German, nay, nor Japan-
ese — but new general ideas which will give to the Chinese a charac-
teristic individuality.

After innovations will this great body remain homogenous?

Homogeneity exists in China by virtue of the centralization of the
administration and the common origin of the mandarins, but the
points of view of the country and the customs of the races which
inhabit it are exceedingly varied ; its different parts are merely placed
in juxtaposition; they are not blended into one uniform mass; they
are only united by the artificial tie of government. Strip the Chinese
of the queue which adorns the back of his head and suppress the
shaving of his skull, made compulsory by the victorious Tartar, and
one will see the most varied peoples throughout the Empire. The
Chinese of Canton and the Chinese of Pe-king vary almost more
one from the other than the English and the French; the Lolo of
Se-tch'uan is as unlike the Chinaman as a Volga Kalmuk is unlike
a Baltic German; the rough mountains of Yun-nan have nothing
of the pleasing appearance of the hills of Che-Kiang; the plain of
China, practically the valley of the Imperial Canal, does not recall
in any manner the uneven country of the Upper Yang-tse.

What will this evolution be, rendered compulsory by the fall of an
obsolete and rotten administration, hastened by the construction
of railways, and an obligatory contact with peoples differing in
their civilization, in their appearance, in their aspirations? No one
can say.

There is no place in China for the immigration of foreigners who
would not certainly seek their livelihood in the sterile parts of the
Empire devastated by famine; but privileged or rather favored by

HISTORY OF ASIA— GENERAL SURVEY 107

chance, merchants, engineers, soldiers will be able to subsist as in
the past. Will they exercise some of the influence hitherto refused
to the foreign element? I think so, thanks to the economic revolu-
tion worked by railways, which cannot fail to be followed by a social
revolution. However democratic the system of Chinese adminis-
tration may be, — an administration all the degrees of which are
accessible to the most deserving or the most intriguing, — the Chinese
dignitaries are nevertheless a backward caste which prevent all
progress. But if this state of things has lasted in China during cen-
turies, if the narrow and abusive interpretation of the precepts of
Confucius has postponed the introduction of reforms, it is only be-
cause the means of intercommunication were too slow and too rare
between the various parts of this immense Empire. That great events
could take place in certain regions without other provinces having
the least knowledge of them; that the very existence of the Empire
could have been threatened as it was in 1858 and 1860, without the
bulk of the nation having the least inkling of the danger, will sur-
prise only those who are ignorant of China. Things will be changed
when a net of rapid highroads shall cross the eighteen provinces, and
bring them into direct relation with the countries where the outer
barbarians have settled. The management of affairs will fall into
the hands of those who, more clear-sighted than their elders, shall
have foreseen the new state of things; the Star of Confucius will
vanish in the steam of the locomotive, and fade in the light of the
electric spark.

Whether China will remain a territorial unit, which I do not believe,
the economic interests of the north and the south, of the east and
of the west being too divergent ; whether she will keep her autonomy,
or be dismembered, or held in bondage by foreign chiefs — the prolific
Chinese race will ever remain one of the most important factors in
the great struggle for life of races and nations, a struggle for which
she is assuredly better prepared than many of those who consider
her an easy prey, which they may possibly devour, but certainly will
not digest.

It is not without some intent that till now I have hardly spdken of
the United States, whose guest I am to-day; last but not least.

The initiative of the trade of the United States with the Far East
is not due, as one might be tempted to believe, to the merchants of
the western coast, but to the enterprising and spirited merchants
of New England, Boston, New York, Baltimore, whose wooden
ships doubled Cape Horn to go to Canton. Eight years after the
Declaration of Independence, on Sunday, February 22, 1784, for
the first time an American ship, The Empress of China, set sail at
New York for China; since then an unbroken line of vessels flying

108 HISTORY OF GREECE, ROME, AND ASIA

the star-spangled banner has crossed the Pacific Ocean and estab-
lished a communication between Young America and Old Asia; but
the starting-point has been changed, and it is now from the coast
of California that the swift steamers which connect the two shores
are sent.

I remember the time, not yet far off, when the American trade
almost equaled that of England, and when at Canton and Shang-hai
the "Merchant Princes" of Boston and New York did not yield
either in their wealth or their influence to those of London and
Liverpool. Looking backward, I cannot but think with gratefulness
and not without some melancholy of the happy hours I have spent
in the house of Messrs. Russell & Co., whose head, Edward Cun-
ningham of Boston, was the most popular, the most esteemed, and
the most justly influential citizen of Shang-hai.

The civilizing mission which the United States have taken upon
themselves has been extended beyond the already large frontiers
of their dominion; the occupation of the Hawaiian and Philippine
Islands has created new desires in a commercial and industrial na-
tion, turned it into a political power which, in the future destinies
of this new Mediterranean called the Pacific Ocean, has the right
to claim its share of legitimate influence.

May I be permitted at the end of this lecture to express my grati-
tude to those who did me the honor and gave me the pleasure of an
invitation to come among you, and to crave the indulgence of my
hearers, ill as I have performed my task.

Citizen of the great Sister Republic, I do not forget that being
born on the banks of the mighty Mississippi, at New Orleans, the
first years of my life were spent under the shelter of the star-spangled
banner of the Union; I feel happy to speak before fellow country-
men, regretting the absence of the world-renowned traveler and
scholar, my friend, the Hon. William Woodville Rockhill.

SUPPLEMENTARY PAPER

A short paper was read before this Section by Professor W. S. Ferguson, of the
University of California, on "Plutarch as a Comparative Biographer." The
line of argument chosen by the speaker was first to demonstrate that one of the
principles on which Plutarch chose the material for his Lives was the similarity
in character and career to be established between the Greek and the Roman
hero; and second, to exhibit in the case of one book (the 10th), dealing with
Pericles and Fabius Maximus, the historical perversions which this principle
occasioned.

SECTION C — MEDIEVAL HISTORY

SECTION C — MEDIEVAL HISTORY

(Hall 6, September 21, 3 p. w.)

CHAIRMAN: PROFESSOR CHARLES H. HASKINS, Harvard University.
SPEAKERS: PROFESSOR KARL GOTTHART LAMPRECHT, University of Leipzig.

PROFESSOR GEORGE BURTON ADAMS, Yale University.
SECRETARY: PROFESSOR EARLE W. Dow, University of Michigan.

HISTORICAL DEVELOPMENT AND PRESENT CHARACTER
OF THE SCIENCE OF HISTORY

BY PROFESSOR KARL GOTTHART LAMPRECHT

[Karl Gotthart Lamprecht, Professor of History, Director of the Historical Semin-
ary and Historico-geographical Institute, University of Leipzig; and Privy
Councilor to the Court of Saxony, b. 1856, Jessen, Province of Saxony. Uni-
versity of Gottingen, 1874-76; University of Leipzig, 1876-78; University of
Miinchen, 1879. A.M. and Ph.D. University of Leipzig; LL.D. Columbia
University. Candidate of Superior Tutorship Friedrich-Wilhelm Gymnasium,
Cologne-on-Rhine, 1879-80; Privat-docent and Associate Professor, University
of Bonn, 1881-90; Professor of History, University of Marburg, 1890-91;
University of Leipzig, 1891 . Member various scientific and learned socie-
ties. Author or Editor of Contributions to the History of French Economical His-
tory; German Political Economy in the Middle Ages; Sketches on the History of
the Rhine; History of Germany, 8 vols., and many other works of history and
historical method.]

HISTORY is primarily a socio-psychological science. In the conflict
between the old and the new tendencies in historical investigation,
the main question has to do with social-psychic, as compared and
contrasted with individual-psychic factors; or, to speak somewhat
generally, the understanding on the one hand of conditions, on the
other of heroes, as the motive powers in the course of history.
Hence, the new progressive, and therefore aggressive point of view
in this struggle is the socio-psychological, and for that reason it may
be termed modern. The individual point of view is, on the other
hand, the older, one that is based on the championship of a long-
contested but now, by means of countless historical works, a well-
established position.

What is, then, the cause of these differences? Personal preference,
or the special endowments of individual investigators? The reaction
of feeling against the former exaggerations of the one or the other
principle? Assimilation to other trends of thought, philosophic or
scientific, of the science of history? Nothing of the kind. Rather,
we are at the turn of the stream, the parting of the ways in historical
science.

112 MEDIEVAL HISTORY

In order to understand better the process that is going on, let us
consider the following contrasts.

Take first a period in which all men, within a relatively small
community, such as we see in the beginnings of a nation, are abso-
lutely of the same psychic equality, so much so that they in action
and feeling can be said to stand side by side as examples of the
same endowments. Then take another age in which, within a given
community of much greater extent, each individual differs in kind
from all others, so that — even more than is at present the case -
his volitions and sensations differ radically from those of his fellow
men.

It is clear, then, that we have here the two poles of human activity,
whose influences must give different results in any study of the
currents of life that we call historical psychic existence, the life
embraced within the limits of these poles. In the first case the
treatment would yield only a delineation of the life of units; for the
treatment of the collective psychic existence would produce as a
result only a sum of the already known, — the psychic existence of the
individual. In the second case we should indeed take a glance first
at the psychic life of the unit, from which it would be seen that it by
no means included the character of the life of the many, but rather
that the collective psychic life fertilized by the marked deviations
of the individual within itself is quite a thing in itself, with its peculiar
psychic or socio-psychic character; and that to this spiritual life
of the whole, the psychic activity of the individual is in such a
manner subordinate as to be dominated by it for the best and highest
ends.

One sees, therefore, that the first case of the coexistence of per-
sons psychically quite identical would result in a purely individual
psychology; the second case of coexistence of absolutely differ-
entiated persons would result in a radically socio-psychological
historical method of treatment.

But the instances just given never occur in perfection. However,
the connections formed among them constitute principles in the
course of history and historical science; the pole of similarly organ-
ized persons appears in the beginning of cultural development as
the principle of lower culture, while the pole of dissimilar units
reveals itself as underlying higher cultures, for the simple reason
that the trend of evolution is toward progressive differentiation
and intergradation of the human soul.

If on the results of the examples cited and deduced in a purely
psychological manner are based the main principles of every develop-
ment of historical treatment from the lowest to the highest, one
finds corresponding to them, in the various civilizations of the
world, the same course of history, descriptive or scientific. It begins

THE SCIENCE OF HISTORY 113

always with the individual-psychological investigation of the past,
and arrives finally at a markedly social-psychological point of view.
In a word, it is the course of events which begins with the heroic
poem and ends with the history of civilization. If we paint the
panorama of this historiographic development rather more vividly
and minutely, it will be seen that the individuals of the lower stages
of civilization have as little consciousness of the conditions that
are characteristic of them, as of the difference between these con-
ditions and those of other stages of civilization. The English, French,
Italian, and, in particular, the German poet of the golden age of
medievalism who worked over the materials of classic antiquity,
transferred them unconsciously to the conditions of his own age.
^Eneas became a knight, and Dido a fair chatelaine. It was only the
beginning of modern times, the closing centuries of dying medieval-
ism, that brought the dawn of a comprehension of the differences
of various cultural conditions, and therefore in our opinion a quick-
ened sense of the historical difference of the periods of civilization
in general1. Similar observations might be made in the history of
ancient peoples and in the cultural phases of Eastern Asia. Every-
where the beginnings of socio-psychological historical compre-
hension are coincident with the emancipation of individuality from
medieval restraint, in order to enter on the so-called new age with
the more rapid process of its own differentiation.

But before this stage is reached, centuries have elapsed, and cen-
turies in which history was understood only in the individual-
psychologic sense, merely as the product of single distinguished
individuals. And correspondingly the forms of historical tradition
are purely individual. Almost everywhere there appear two forms
which may be taken as typical, — genealogy and the heroic poem.

A characteristic beginning! Whence arises its dual nature? In
both instances we are concerned with the memory of single persons,
particularly of ancestors. But in the one case the barren record is
taken from the purely prosaic reality of a natural pedigree, in the
other the single individual is selected and his deeds immortalized
in poetic form with an exaggerated objectivity. How does this
difference arise? We are here face to face with a radical division in
the historical point of view, one which occurs in all ages in higher as
in lower stages of culture. It can be characterized as the difference
between naturalism and idealism. In the first instance reality is
followed closely, held fast, copied. To this belong the rapid offhand
Sketches, the journalism of to-day in so far as it serves as the annal-
istic medium of news; and, finally, statistics. In the other case
there intervenes between the simultaneous photographic and phono-
graphic impression of occurrences and their collective reproduction,
time, and with time, memory. Memory, with its thousand strange

114 MEDIEVAL HISTORY

associations, abbreviating, rounding off, and admitting of outer
influences and inner prejudices; in a word, memory is the artist that
individualizes and remodels its subject. For what else is idealism
but the retrospective treatment of a theme into which the personal
note enters, — r indeed with intention, — whereby the floodgates are
opened to the whole intellectual current of personality proper?
Hence in higher states of culture, in the case of differentiated indi-
viduals, the personal style arises, and with it the personal work of
art; while in lower states of culture, with individuals of similar
proportions, and from the simultaneous work of the many, the im-
personal, the typical time-style will arise, and with it the art work
of this particular style.

This explains, then, for the beginnings of historical tradition the
growth of naturalistic and realistic forms side by side. As a natural-
istic form there appears by preference the genealogy; as idealistic,
the heroic poem. And with this the roots of the contention of ages
are laid bare as to whether an historical work is a work of art or not.
It will always be a work of art in so far as, even in naturalistic trans-
mission, at least in higher cultural stages, the influence of personal
elements cannot be avoided. And it will be peculiarly a work of art
as soon as, in the case of an important theme, the imagination can
bring forth a composition by means of idealizing retrospection. So
that, when the de lege ferenda is uttered, one can only advise that
to every historical work of our time, not only unconsciously but
consciously, the character of a work of art should be given.

But genealogy and the epic are not the only forms of individual-
psychic tradition. Together with them and with increasing cultural
growth and intellectual leisure, others come to the fore. If it be
possible to follow the progress of human events not only through
the forms of tradition, as required in genealogy and epic poetry, but
more intensively by means of the written letter, the chisel, and the
stylus, pedigrees and epics will be superseded — if, indeed, they do
not disappear at once — by annals and chronicles. And even these
forms can be improved upon. In the history of every human com-
munity, the inevitable moment comes in which reason, based on
increasing experience, attempts independently to classify and con-
trol the world of phenomena, in which the logical conclusion begins
gradually to yield to induction, and the miraculous to the causal
principle; and if, with this, there begins a really scientific mastery
of the outward world, then this too takes hold of historical tradi-
tion. And the direction it follows is both naturalistic and idealistic.

In the first instance tradition is ransacked for new sources; when
found, these are brought to light in a clear-cut literary form. With
untiring zeal the whole field is worked over, and a careful considera-
tion of isolated events is entered upon, of which the object is to show

THE SCIENCE OF HISTORY 115

each single occurrence to be indisputably genuine; it is then polished
up, rubbed clear of its rusty casing, and presented to the world.

On the other hand, there is great need for the enormous accumu-
lations of the classified and isolated traditional data produced by
the unceasing mills of naturalistic criticism: these data must be
turned to account as material for a more general positive structure
of history with its divisions and emendations. Of course this is to
be done under the direction of an authoritative and constructive
mind, and not without the aid of the imagination. How else is a
control of the enormous material possible? But the mere memoriz-
ing of details and a linking together of particulars, a handling such as
was referred to, is clearly proved to be impossible. It is necessary
that we employ some means of mechanical combination of the parts
of the huge world of facts which knowledge alone can supply, cer-
tain forms of criticism to classify the mass of material and thereby
control it. And naturally this constructive criticism must deal in
the first place with individuals who may still be considered as the
only fundamental psychic motor powers of history. If their deeds,
their single achievements, and the collective achievements of single
persons, — if these can be regarded as parts of a completed series of
facts in official service or in an independent profession, they must
be grouped according to a system which does not overlook the uni-
versal course of things and which makes the whole only the more
intelligible. This is the origin of pragmatics.

But the Divide et impera embraced in the application of the prag-
matic principle proves itself to be insufficient in the face of the mass
of traditional material, continually increasing in scope as it does.
Above those groups which pragmatism has thus formed to facilitate
the handling of events, above the whole survey of heroic deeds,
incidents of wars or diplomatic negotiations, we see appearing by
degrees the outlines of a better system of classification of material,
a system which groups series of events of entire ages within the
domain of whole nations and families of nations; as, for example,
the outlines of certain oft-recurring incidents in the history of the
Papacy, or the types of similar occurrences in the development of
the Prussian monarchy, or the main characteristics of religious
movements in all respects alike and which are to be detected in the
piety of all denominations of Protestantism. It is clearly possible
to follow these also in the paths of formative criticism far beyond
the simple domain of pragmatism. The common landmarks, too, of
historical happenings, especially when pragmatically grouped, can
be massed together on the higher plane. With this accomplished,
the work of the historian begins at the point where the development
of the so-called historic theory of ideas sets in. The term "idea"
arises from the application of the word to the historic elements

116 MEDIEVAL HISTORY

common to these masses, so that the idea asserts itself as a form
of higher thought integration. And in Western culture, as far as
investigation permits of a time-limit, it is in its purely historic-
graphic beginnings to be first found in the historical works of the
last half of the eighteenth century.1 One naturally asks here, had
these higher forms of integration from the beginning a closer connec-
tion with the naturalistic or idealistic conception of history? It is of
interest to know that these comparatively abstract forms of intel-
lectual activity had, for purely psychological reasons at first, the
closest connection with idealistic historical description. Allied with
this is the fact that this activity, having developed along quite
primitive lines to a higher plane, was yet capable of assuming at
times a transcendental character. The ideas which were made the
basis of the understanding of the greatest historical concatenations
by isolation and abstraction of the elements common to them, did
not appear as human ideas, but were rather divine powers holding
sway behind these events, permeating and determining them, as
emanative and associative forms of the absolute working through the
fates of men. It was a sort of idealistic historical treatment which
slowly took shape in Germany in the course of the second half of the
eighteenth century, which then, owing to Schelling, passed over into
the great idealistic philosophy of German Romanticism, to which
from the point of view of the profoundest theory of life Ranke
paid homage as long as he lived, and which, starting from all these
points of its development, became a constituent part of all the
higher historical training of the nineteenth century.

Meanwhile the strictly epistemological character of the theory of
the idea had certainly been recognized, and not least clearly at the
beginning of the great discussions of historical methods in the early
nineties of the last century, and which have not yet entirely ceased.
It can truly be said that to-day, practically no one believes in the
transcendency of historical ideas, — that is, not fully, nor even in
the Ranke sense, — but that, on the other hand, the usefulness of
the conceptions contained in them for the grouping of the greater
individual-psychic series of events is generally conceded.

While the individual-psychological treatment of history has been
thus gradually developed to the state of perfection which marks it
to-day, it had long had its limits, and, as far as the main prin-
ciples of historical comprehension are concerned, its substitution
in the form of socio- psychological treatment had begun and had been
proved to be necessary.

In the course of the latter part of the seventeenth, but more
especially in the eighteenth and nineteenth centuries, all the peoples

1 Cf . of recent date, Heussi, Church History and its Writing. Johann Lorenz
von Mosheims, Gotha, 1904.

THE SCIENCE OF HISTORY 117

of Western European culture passed through stages in which the
most marked psychic differentiations took place in the individual
members of these communities. A certain time-spirit dominated
all these nations in which the civilization of the new American
world had its origin; it is the spirit which may rightly be called that
of subjectivity. Not uniformity, but variety of the subjective per-
fection of the individual, is the ideal of to-day. And the collective
culture of our time rests on vast working corporations of individuals
who are no less vastly differentiated each in themselves.

For us it is a well-known state of affairs, this product of nervous
activity which has characterized the last six or seven generations,
and it is superfluous to describe it in detail. But it would not be
inappropriate to trace once and for all, logically and clearly, the
consequences of these changes as well for the character of historical
science of the present as for that of the immediate future. The
result is that for such a time as this only that kind of historical
comprehension is adequate which, side by side with the individual-
psychological, admits also the socio-psychological treatment, the
consideration of the evolution of the collective psychic products
of human communities — a treatment which does not merely allude
occasionally to this admission, but maintains consistently and
unconditionally, that for every case of historical investigation the
socio-psychological forces are the stronger, and therefore those that
properly determine the course of things; that, consequently, they
include the operation of the individual-psychic forces. Granted that
this is the universal formulation of the now necessary point of view
as it is carried out to-day not only in the field of historiography (in
some instances with a clear insight into its consequences), but as seen
in the new sciences and new methods which it has made to bear fruit,
for example, sociology, or prehistoric excavations; yet it would be
a mistake to assume that the revolution in this direction took place
suddenly or that it has even now reached its completion. Rather
has it gone forward slowly in the course of at least a century and a
half, if we reckon according to events in Germany. And the resulting
views have been shown, though in steady conflict with the older
individual-psychic opinions, to be invincible in spite of the marks of
immaturity and a lack of definiteness borne on their face. They
stand forth, nevertheless, with a breadth, a logical cohesion, and an
inward completeness, which it has been beyond the power of the
bitterest hostility to weaken or to remove.

If I carry the study further to the contemplation of the evolution
of Germany, because this is most familiar to me, and because, I
believe, by keeping to a narrower limit, in the short time assigned
me we may gain greater clearness and a more plastic form, I must
not fail to mention the honored name of Herder, the hundredth

118 MEDIEVAL HISTORY

anniversary of whose death has just been fittingly observed by
Germans throughout the world. In the realm of Germanic cultures,
and even beyond it, Herder stands as the creator of the conception
" folk-soul " (the psyche of the masses). He was the first to admit the
importance of the socio-psychic demands for the proper historical
comprehension of the most important of all human communities, —
nations, — and to draw from these the necessary conclusions. He
did it,1 not in a calm, entirely emotionless, and intellectual spirit
of research, but rather by leaps, and with all the enthusiasm of
the explorer. His was a psychic attitude toward the new-found
inexhaustible material of the socio-psychic inter-relations. But to
reproach Herder on this score would betray an extremely small
socio-psychic understanding. When communities have made rapid
progress toward a higher spiritual existence, it is not in a rational
manner or with purely intellectual age-marks of the thought or pro-
cess. Rather with youthful feelings of anticipation, with an ecstatic
presentiment of dimly felt combinations, are the portals of a new
epoch entered. Science becomes a prophecy, philosophy turns to
poetical metaphysics. That was the character of the great German
period of subjectivity that began with Klopstock, and ended in the
spreading of the branches of the philosophy of identity — the period
to which Herder, as one of its first great phenomena, belongs. There-
fore Herder's enthusiastic grasp of the socio-psychic elements of his-
tory does not stand alone. It is the property of the whole epoch and
dominates the characteristic movement of the time — romanticism.
The advance step in all this was a clearer view of the vast combin-
ations of the phenomena of the mass-psyche — an advance which
brought one to describe vital points poetically, in part or wholly so.
But there was not the clear comprehension of the constituent ele-
ments of the mass-psychic or even of the elementary disentangling
of combined phenomena.

It has been reserved to the so-called history-of-civilization method
to attempt the description of socio-psychic phenomena, and Freytag,
Riehl, even Burckhardt, devoted themselves to this task. Since the
last decade of the last century, however, this method has gradually
grown out of date.

That no progress was made in historical method during a long
period may be traced to the existence of too great a mass of material
to deal with. To this another cause must be added. The first great
subjective period, which had begun with 1750, ended about 1820, at
latest 1830; then about 1870 to 1880 another epoch begins, the second
period of subjectivism. In the interval, however (since 1820, at
least), the conquests of the first period began to be not so much
developed as intellectualized. Enthusiasm yielded to reflection, the
1 See his Ideas concerning the History of Mankind.

THE SCIENCE OF HISTORY 119

anticipative comprehension of rationalism. It is the rebound in
which, in the domain of natural science, the period of natural philo-
sophy was replaced by the recent development of mechanics; the
change by which, in the field of mental sciences, the old rationalism
of the Aufklarung, as it had been developed in the generations follow-
ing 1680, again became conspicuous, though with alterations. The
outcome of this movement in the science of history, which had run
aground in the impotent epigonism of art and poetry, as in the bar-
ren historicism of the mental sciences of the period of 1860 to 1870,
was the reappearance of the individual-psychological method. But
the socio-psychological point of view was not yet sufficiently well
grounded to maintain its supremacy. In the competition of these
rival influences, Ranke grew to be a master of his art. This coinci-
dence, in a certain sense most fortunate, and at all events peculiar
in its way, gives to him and his works a position all their own. The
individual-psychologic point of view now gains the ascendency
more completely, though not so much because of Ranke as of his
disciples, especially Von Sybel. There was no longer any particular
importance attached to the efforts of those who thought and worked
according to the history-of-civilization method; these were not
opposed because they were not considered as of more than passing
significance. It was a time of almost purely political activity: the
nation yearned with every fibre of its soul for the long-coveted polit-
ical unity. Such works as the political history of the old German em-
pire by Giesebrecht, or Droysen's History of Prussian Polity, may be
cited as important phenomena in this connection. Why should they
not have preferred political history — which, to a certain extent, was
the individual-psychologic method — to all other forms of history?
This explains for the most part the fact that the advance in the
socio-psychological interpretation of events, made in the mean time
by other peoples, for example, the French in the philosophy of
Comte, met with small acceptance in Germany.

But the last decades of the nineteenth century brought the re-
bound. The years 1870 and 1871 released men from their great
anxieties concerning the national life and unity; the development
of internal culture comes prominently now to the front. And that
happened at the very dawn of a new period of modern psychic
existence. The rise of political economy and technology, the rapid
development of freedom of trade all over the globe, the victories of
science in the realm of nature, even to penetrating into the confines
of the inner life: all of this and a host of other less important phe-
nomena yielded an untold amount of new stimuli and possibilities
of association, and with that an unheard-of extension of psychic
activity as then existing. But of this more in another lecture. The
result was a marked differentiation of intellectual activity, and with

120 MEDIEVAL HISTORY

it the renewed and determining advance of the socio-psychic ele-
ments. This was evident along the whole line of scientific endeavor,
especially in the rise of sociology and anthropology during the last
decades, with their far-reaching consequences and accompanying
phenomena. In the domain of history, this meant a fresh start in
the writing of histories of civilization in so far as the development
of method was energetically taken in hand; description alone was
no longer the watchword, but an intelligent comprehension.

It was now a question of following up the complex phenomena of
the socio-psychic life, the working out of the so-called national soul
in its elementary parts. The first step on this path would necessarily
lead to the immediate analysis of the phenomena that appeared
within the existence of great communities of men, that is to say,
chiefly of nations. Hence the proving and detailed characterization
of socio-psychic eras within this domain : this was the next step. We
can see how this was done by Burckhardt who, in his history of the
culture of the Renaissance, was the first to point out the great
psychic difference between the so-called Middle Ages and the periods
of higher culture. Thus a master hand determined and depicted one
of the most marked phases in the rhythmic movement of the culture-
epochs of a nation. From this point the way must lead on to a
statement of the course of a whole series of cultural ages. This has
been attempted in my German History.

But this is only the beginning of an intensive socio-psychological
method. In this blocking out of the culture-epochs, the elements of
the socio-psychic movements, as such, are not analyzed, but simply
touched upon, and the time indicated in which great movements
find their origin. When this is once well done, the question arises
whether for these ages of culture there is one common underlying
psychic mechanism, and if so, of what nature it is, and what is the
aggregate of these underlying, yet apparent, psychic elements. And
if these problems are solved, there appears further a last yet perhaps
provisional question, namely, whether the psychic elements referred
to are really elementary in the sense that they are to be found in the
results of modern psychology as hitherto known.

This is not the place to analyze or attempt to solve the questions
thus raised; but the means of finding an answer will be pointed out
in the later lectures, at least in so far as to prove that, for the
mechanism of the great socio-psychic movements, the same elements
and laws hold good of which proof is given in recent psychological
investigation, and with that of the discovery of the elementary
psychic energy proper to the historical movement. At this point
there arises, in consequence of the preceding statement, another
question. If modern historical science wrould penetrate to the inner-
most springs of universal history, find them to be in certain psychic

THE SCIENCE OF HISTORY 121

conditions, does it act thus in conformity with the universal tenden-
cies of the time, and has it accordingly the prospect of a wholesome
duration and development? Here is the first difficulty to be solved.
The second is as follows: if modern historical science as thus set
forth is in accord with the spirit of the time, what is then its rela-
tion to and effect on other sciences?

For those who are acquainted with intellectual movements of
Western Europe, the first question — that a more intensive study
of all phenomena, a closer acquaintance with nature — is easy enough
to answer. An impression which at first took hold of the external
phenomena with a certainty of touch hitherto unknown was followed
in the field of mental sciences and imagination by a psychological
impressionism that discovered and revealed the depths of the psychic
life which till now had lain concealed under the threshold of con-
sciousness. The spirit brought, in regard to natural sciences, an
intensity of observation which appeared almost to threaten those
mechanical theories which, during centuries of energetic research,
had stood as true and sufficient for all further progress in investiga-
tion. In this course of psychic progress the historical science of
socio-psychology takes its place as a matter of course; it is nothing
but the application of greater intensity of observation to historical
material. And there is prospect, therefore, of a further development
of this idea, not only on Western and Middle European soil, but
since the new psychic existence is due chiefly to the vast extension
of association and stimuli which arise from the new technical, eco-
nomic, and social culture, it will establish itself everywhere where
Western civilization prevails, as is actually being shown to-day in the
New World and in Japan.

If socio-psychological history is of such growing importance, the
more, then, does its relationship to other sciences call for considera-
tion, even though but few words can be devoted to it.

Foremost and clearest is its connection with psychology. History
in itself is nothing but applied psychology. Hence we must look to
theoretical psychology to give us the clue to its true interpretation.

How often, indeed, has not psychology been named the me-
chanics of mental science, in particular of the science of history?
But the appreciation of this connection and the practical applica-
tion of it are quite different things. For the latter it is necessary
that the study of historical phenomena be extended to the most
elementary occurrences and processes, — even those processes with
which psychology has primarily to do. It is characteristic of the
progress of science during the period of subjectivism of about 1750
or that at the beginning, at least, neither history nor psychology
was understood. Of how little importance was psychology when
books like Creutzer's Essay on the Soul and the fruitful but primitive

122 MEDIEVAL HISTORY

journalism of the decades of sentimentalism and the "Sturm und
Drang" periods tried at least to set it free from the old traditional
metaphysical theories. A universal genius like Kant was right to
refrain from taking part in such primitive beginnings, and this stage
of philosophy corresponded to that of history.

Psychology and historical science begin to approach each other
about 1800, under the influence of the new ideas of the time; but
they were as yet far from meeting; between them still lay heavy
and bulky masses of scientifically unanalyzed psychic matter.

How different it is to-day in the first decade of a new period of
subjectivism, which in so many of its parts seems to be a restora-
tion of the old, only in a higher stage of development. To-day psy-
chology looks back on two generations of investigators, who delivered
it from the deadly grasp of metaphysics and made it an independent
science. Wundt followed Herbart. And now a younger, a third,
generation is at work perfecting and amplifying the results obtained.
These results, however they may vary and become matters of dis-
pute, according to the direction of investigation, permit a profound
insight into the legitimate course of individual-psychic life, such as
was denied to our predecessors. The most important results of all
this investigation for the historical student are recorded in the
works of Wundt, Ebbinghaus, Miinsterberg, Lipps, — collections of
data which have already become indispensable to the allied sciences.

This is a condition of things extremely helpful to historical science
in the socio-psychic direction. If one penetrates into the depths of
historic causation, it will be found that psychology has prepared
the way and has become a safe guide to the historian, who wishes to
make known his discoveries in formulae in which they may be fitly
expressed.

In this way psychology and historical science entered into partner-
ship. The partition between them is giving way, and certainly one
may say — if it may thus be expressed — that psychology increas-
ingly serves as a mechanical force to history.

But the relations of the two sciences are by no means thus com-
pletely described. Just as along with the psychology of the normal
adult there must be kept in mind that of childhood and old age in
order that the antithetic character of all psychic processes, the
full extent and the whole circle of the potentiality of the human
psyche, as far as the individual is concerned, may be appreciated
and the corresponding biological functions be observed, so it is
necessary to obtain a full comprehension of the meaning of the
socio-psychological process in history in order to proceed in a man-
ner quite analogous. In this instance psychology is dependent on
history, and only from an intensive investigation of the cultural
periods of mankind as a whole are the data attainable which will

THE SCIENCE OF HISTORY 123

enable one to recognize the antithetic tendencies of the human
mind in its whole empiric compass.

Thus we get a starting-point from which the relation of modern
historical science to the other mental sciences may be explained.
These may be divided into applied, such as theology, jurisprudence,
political economy, politics, etc., and into constitutive, history of
language, literature, art, etc. It is clear that the constitutive branches
simply disappear as parts of modern historical science. For if the
latter concerns itself with the investigation of the dominating social
psyche of the times in question, and with its changing forms during
the various ages of culture, it can only do this by taking a survey of
all its embodiments in history from time to time. These are to be
found in language, in poetry, and art (that is, style), in science and
philosophy, the climax of intellectual attainment, argumentation,
etc. And correspondingly, socio-psychological history is the universal
foundation of all these sciences, and these are related to it as ampli-
fying and special sciences. But even more is the case with relation
to the applied mental sciences. For the latter, which have reference
to a certain given psyche of a certain cultural period, require a gen-
eral knowledge of this period, which leads to the socio-psychological
science of history.

Historical science therefore plays a double part: (1) as the basis
of the practical as of the theoretical mental sciences, and (2) as
stimulus to an historical method within the range of psychology. It
is a position which is quite normally conditioned by the fact that
psychic movements pass, as regards time, far more rapidly than
physical movements, and that the change appears to us qualitatively
different on that account. If in their relations the psychic develop-
ments of a given time had corresponded to the physical, only one
mechanism would be needed to dominate them both; for they
would have shown a hundred thousand and more years ago the
same character as they show in the traditional records of to-day.
Now it is well known that where the conception of life is in question,
this is not the case; for example, in animal and plant organisms. In
human life, that is, in history, a moment of much quicker change
of phenomena intervenes. How is it to be controlled? It can only
happen in that psychology as a psychological mechanism is allied
with a functional idea of the time and becomes at once variable. And
this functional idea historical science must supply. Through this it
grows to be an evolutionistic psychology fully suited to the actual
course of things and as such the basis of mental sciences, both
theoretical and applied.

Is not the relation of the historical to natural science determined
by the last few remarks, even if these are only general propositions?
I think so, if one does not indeed include physics and chemistry in

124 MEDIEVAL HISTORY

the historic point of view, — sciences the objects of which belong to
the passing moment. However, if one does this, nothing remains but
to admit that there are biological agencies even in inorganic nature;
with this we are driven out of the sphere of science into the atmo-
sphere of hypothetic philosophy, into metaphysical mode of thought.
It is not necessary to transcend the bounds of our subject, to pass
over the border-line that divides philosophy and science. But one
thing has been determined by these reflections, — that the modern
science of history has opened up for itself a vastly greater field of
endeavor and conflict, and that it will require thousands of diligent
workers and creative minds to open up its rich and in many respects
unknown regions, and to cultivate them successfully.

THE PRESENT PROBLEMS OF MEDIEVAL HISTORY

BY GEORGE BURTON ADAMS

[George Burton Adams, Professor of History, Yale University, since 1888. b.
Fairfield, Vermont, June 3, 1851. A.B. Beloit, 1873; A.M. ibid. 1876; Divinity
and Graduate Schools, Yale, 1873-77; B.D.Yale, 1877; Ph.D. Leipzig, 1886 ;
Litt.D. Beloit, 1903; Instructor, Beloit College Academy, 1874-75; Profes-
sor of History and English, Drury College, 1877-88; Member American His-
torical Association, American Antiquarian Society. Author of Civilization dur-
ing the Middle Ages; European History; and manv other works and articles on
history.!

IN the recorded history of the human race the period known as
medieval history occupies, as its name indicates, an intermediate
place. If we leave out of account that portion of our long past which
must be reconstructed by inference from a study of surviving primi-
tive man, or from monuments and archaeological remains, and limit
the meaning of the term " recorded history " to that history which
has been recorded in books and written documents, then the period
of the Middle Ages occupies what may be called the middle third of
recorded history. The general problem which this portion of the
field presents to students of medieval history is obvious. The results
of ancient civilization furnish our starting-point. With these in
hand it is our business to show how they were transformed under
the influence of new conditions, how new forces entered the field,
what new institutions arose, in what way and to what extent civiliza-
tion recovered its losses by the way and became more diversified and
enriched, and finally to put. our results in such shape that they may
serve to explain the beginnings of modern history and to furnish
the key to many of its difficulties. It is our business first of all to
find out the facts as they actually were, in so far as this can be done,
to indicate carefully the exact degree of our knowledge, and finally
on the basis of this knowledge to construct a continuous and com-
prehensive narrative of the whole period in order to set forth the
results which have been reached.

But looked at more specifically as a field of investigation medieval
history, or at least the first half of it, has enjoyed one great advantage
over other periods. The history of the Teutonic tribes, and especially
of the great race the Franks, who dominated Europe for some cen-
turies and whose institutions native and acquired lie at the founda-
tion of all later constitutions, belongs at once to the national history
of the two peoples who have been the leaders of modern historical
scholarship, Germany and France. It has followed from this fact
that the history of that large portion of the continent which was
included in the Empire of the Franks has been explored with micro-

126 MEDIEVAL HISTORY

scopic care from various points of view and with mutually correcting
natural bias. We may, I think, say with truth that there is no other
considerable portion of history, ancient or modern, that has been
as yet investigated with such minuteness as that which embraces
the history of Europe from the beginning of the fifth century to the
end of the ninth, and we may add that, as a natural result, regarding
all questions of importance in this field there is now a nearly or
quite general consensus of opinion among scholars.

In saying this I do not mean to assert, of course, anything like
absolute agreement. Probably it would be difficult to find any
single point of importance on which some scholar of reputation does
not stand for an opinion of his own. But I do mean to say that there
has now been formed a definite body of opinion on all the essential
facts of both political and institutional history during that period
in which the great body of scholars are agreed. Nor do I mean that
these conclusions will not be attacked in the future. Aberrations
from them, heretical attacks on them we might perhaps call them,
will occur now and again, and their effect will be to correct matters
of detail, to rearrange emphasis on particular points, or to bring into
the field some minor force or circumstance overlooked; but it is
hardly likely now that this body of conclusion can be seriously
called in question; it is more likely that dissenting opinions will in
the future find even less support than they do at present. Nor is it
probable that those lines of work of which I shall speak later as
likely to lead to the largest new results can modify our present
conclusions in any revolutionary way.

A concrete example may show more clearly exactly what and how
much I mean. At first sight there would seem to be no topic of history
in regard to which opinion is less settled than that of the origin and
formation of feudalism. It would seem to be a subject on which the
greatest diversity of view prevails, and in which there is an almost
inextricable confusion of theories and even of statements of fact.
But this would be a superficial view only. A careful comparative
examination of the whole field would show that in the last twenty
years the opinion of those who have most carefully studied the
subject has practically settled down on a certain line of explanation
which may now be definitely called the orthodox doctrine of the
origin and formation of feudalism. The long controversy between
the first scientific students of the subject, Waitz and Roth, which
once seriously divided opinion, is practically settled in so far as it
concerns fundamentals. Individual students whose opinions are
entitled to the greatest respect may hold peculiar views on a single
point, like the view of Professor Brunner on the origin of vassalage,
but they influence the prevailing opinion very little or not at all.
Professor Flach is searching the whole field with great care, and

PRESENT PROBLEMS OF MEDIEVAL HISTORY 127

announcing somewhat revolutionary views, but he is making no
converts. The influence of economic factors in the growth of feudalism
and the relation of the economic institutions which they produced
to those more strictly political, produced chiefly by a different set
of causes, have long been a difficult puzzle and a source of confusion;
but these two great sides of feudalism have now been given their
proper place side by side and their proper share in the common
result. Their relation need no longer be a source of misunderstanding
to one who takes both sides equally into account. It is difficult to
see from what source or in what way the prevailing line of explana-
tion of the origin of feudalism is to be successfully attacked in any
essential point. Minor points remain to be cleared up, new light will
be thrown on many details, changes of emphasis will occur, but no
man can hope to undo the work of Waitz and Roth, of Fustel de
Coulanges and Brunner, or seriously reform the common result
which they have created.1 It is agreement of this sort which I would
assert to be practically final, and disagreement of this sort which, I
would declare, does not affect practical unanimity of opinion.

In view of this condition of things, which I believe will be more
clearly recognized the more carefully the situation is considered,
I should like in all earnestness to raise the question whether the
time has not now come when the main force of our vigorous and
advancing historical effort should be turned into some other portion
of the field; whether scholarly work in the first half of medieval
history is not likely to find itself more and more shut up to the study
of minute facts, which are, it may be, interesting in themselves,
but of no essential influence on the real current of affairs. If this is
true, and the students of medieval history continue in the future
as they have in the past to spend their chief effort in this field, are
we not running some risk of that danger which seems to threaten
every science at some period of its history, the danger of the develop-
ment of a more or less barren scholasticism, of magnifying method
into the all important thing without reference to the result to be
reached, of considering the establishment of the fact to be the end
of all effort, regardless of the use to which it can be put when we have
found out what it is. It is not the place here to call attention to the
few and not as yet important signs, which I think can even now be
detected, of the approach of this danger. Suggestion rather than
argument is the purpose of this paper. And the first suggestion
which I would make is this: have we not now reached the point

1 Such a statement in regard to the probable results of future investigation will
be thought by many somewhat hazardous. In so far, however, as objection may
take a specific form, either now or in the future, it will be found, I think, to be
due to an opinion that some modification of detail ought to be considered a modi-
fication of fundamentals. My statement really means that such an opinion is
likely to remain individual and not to become general.

128 MEDIEVAL HISTORY

in our study of the first half of the Middle Ages when we should
expect and encourage, as the next step in advance, constructive
rather than analytical work?

Now I believe there is no student of history who will assert that
the establishment of the fact as the result of a special investigation
is the ultimate object of historical study. However great may be the
intellectual pleasure of the discovery of the hitherto unknown fact
by a truly scientific process — and there are few greater — and
however great the consequent temptation to regard the process and
its immediate result as of supreme importance, we all know that to
find out what really was, or what really happened, at a given time
or place is only a means to a further end. And whether or not we
quite believe that, as has been said, the only really permanent work
is the artistic embodiment of truth in forms of beauty, it is true
that the ultimate purpose of all historical activity should be the
construction of a continuous narrative account of the life of man-
kind, or of a nation, through a given epoch or through the whole
course of time. Such a narrative must be based, of course, upon
a great body of strictly scientific investigation which must go
before it. It must leave nothing to conjecture or theory that is
capable of proof, but it is not necessary that it should make
mention of every minute fact which has been discovered. Its object
should rather be to display in proper proportion and sequence the
sum total of influences, both facts and forces, which have really
determined the current of events with their results, destined in their
turn to become the causes and conditions of a new era. Whether
such a comprehensive picture in the life of the race will be a work
of art, like the ideal which some earlier historians have had in mind,
whether it will teach mankind lessons of morality, or of economic
advantage, or of practical statesmanship, it is not the business of the
historian to inquire. But it is his business to determine when the
work of special investigation in any period has gone so far that the
work of broad construction is possible, correctly inclusive and exclu-
sive, with proper perspective, and with such a sound foundation
of knowledge that future investigation is not likely to overturn any
really essential portion of it. We shall all agree upon this, I think.
Nor do I think there will be many to deny that one of the surest
signs that a science like ours is passing into a condition of mere
scholasticism is that such a stage of approaching completeness in
the history of investigation should be reached and not naturally
arouse the spirit and power of constructive work on a broad scale.
That the workers in such a field should be content to spend their
best efforts in determining slight details, whose influence on what
the age was really doing was without significance, would be a most
deplorable and hopeless condition of things. That investigation has

PRESENT PROBLEMS OF MEDIEVAL HISTORY 129

reached a stage like this in very few fields of history is certainly
true. I wish to be distinctly understood to raise question whether
that stage has not been reached in the study of the period extending
from what we commonly call the fall of the Roman Empire to the
fall of Charlemagne's, and whether we ought not now to expect and
encourage as the next proper advance of our work attempts at a
final constructive history of this age. It is, to be sure, only a portion
of medieval history — a fragment of a larger age, and in that sense
a continuous narrative of its history cannot be final. But that is in a
sense true of every period however long, and this has a unity of its
own — a natural beginning and ending — which makes appropriate
its treatment by itself at least as preliminary to a history of the
whole Middle Ages.

This judgment which I have passed on the condition of our study
of the earliest period of medieval history demands that we should
recognize the fact that there is a very large body of historical happen-
ings without appreciable influence on the general result; that very
many events in the past,, of interest in themselves, might not have
occurred at all, or might have occurred in some quite different way,
and the final outcome, the decisive result, have been unmodified in
any essential matter. We may understand the really important
contributory work of an age or a generation without understanding
every detail about it. That this is so I cannot here stop to prove,
but I expect little disagreement with this view from students of his-
tory whose work has led them to consider the contributions of one
age to another, or to study carefully the larger movements of history.

To those of us who have in our hands not merely the directing of
our own productive efforts, in which perhaps our interests are now
so fixed that change would be neither advisable nor desirable, but
also the work of directing by personal advice and the selection of
topics the forming interests of the scholars of the next generation,
the question is one of great responsibility. Training in constructive
work is not easy. The power of comprehensive vision combined
with that keen insight which detects the true historical perspective
is the gift of the gods rather than the creation of the teacher. Nor
would I overlook the fact that final constructive work is to be ex-
pected only from the man who has been thoroughly trained in the
methods of scientific investigation, and whose critical judgment has
been sharply aroused and disciplined in the process. For however
brilliant the constructive imagination or however keen the historical
insight, if they be not guided and limited by a thoroughly disciplined
critical judgment within the limits of known facts, they will prove
to be snares and their results delusions only. We must also add
the fact that from the limited number and character of the sources
at its command and its consequent ability to create in many cases

130 MEDIEVAL HISTORY

almost the artificial conditions of a laboratory experiment, medieval
history, and especially the first half of it, must remain the best of all
fields for training in scientific investigation and the discipline of the
critical faculty. But while we may insist, with a degree of justice
that is likely to be recognized by instructors in other fields of history,
that the future historical scholar in whatever line of research should
receive a part of his training in true seminary courses in medieval
history, that is quite different from endeavoring to direct the life-
work of the student into the earlier half of that period. Should it
not rather be our endeavor to detect among those who come under
our training the few from whom constructive work of a high order of
ability may be expected, and by such means as we can use and with
a view to actual attempts at such a history of this age, to assist in
their growth in the comprehensive grasp of a whole era and in the
power to judge truly the relative value of facts which are chief
among the qualities demanded in final historical work?

Will you allow me to break the direct thread of my discourse at
this point to say that to the instructor in medieval history at least
the future of the historical seminary presents in my opinion a practical
problem of some seriousness. The prevailing, I may almost say the
fashionable method of conducting seminary work at present is the
essay method — the preparation by the members of the seminary of
set essays or reports on assigned topics. The essay method is the
best, perhaps the only method of teaching constructive work, and
for this purpose it should be employed. Its defects are the great
difficulty of combining with it instruction in the details of historical
method and the discipline of the critical faculty, demanding for these
results qualities in the instructor which are not common, and qualities
in the student which are still more rare, at least in America. Its
great danger consists in the fact that it is the easiest of all methods
with which to get an appearance of success, so that both instructor
and student may plausibly delude themselves with the belief that
they are doing the real work for which the seminary was intended
when they are merely devoting themselves to what should be the
finishing touches, leaving the fundamental work undone. I mention
this briefly and only in passing, but I believe there is here a practical
problem that demands the careful consideration of the university
teacher of medieval history.

When we turn from the first to the second half of the Middle Ages we
are confronted by an entirely different situation. For one thing, in the
past, the large majority of the ablest men who have devoted them-
selves to the study of medieval history have found the first half of
the period, for reasons perhaps not difficult to see, far more attractive
than the second, and have not hesitated to yield to this attraction.
While this is perhaps less true of English scholars than of those of

PRESENT PROBLEMS OF MEDIEVAL HISTORY 131

other languages, the exception is not great enough to change the
rule. Fewer men have given themselves to the study of the second
than to that of the first half. Nor has there been any such converging
of effort on a single line of history as in the earlier field. Indeed, such
unity of interest is not possible in the later period. The nations,
whose appearance constitutes the dissolution of the Frankish Empire,
separated from one another because of differences of condition, and
these differences increased rather than diminished after their separa-
tion. The scholars of each nation have naturally found their proper
field in the study of their own national history. And while there is
a certain similarity in the larger features of these distinct lines of
national growth, there is not such a degree of likeness that what is
found to be true of one may with confidence be asserted of any other.

It has naturally resulted from this fact, not only that there is
a larger range of unexplored or only partially explored territory in
the. later period, but that there has as yet been formed no such general
consensus of opinion, except upon here and there a single point, as I
have asserted to exist in the earlier. Here is a field in which the ardor
and enthusiasm of a whole generation of coming historical scholars
may find profitable employment in the investigation of the fact as
it really was, if the present generation will only have the courage to
confess that work of real importance in its own field is about finished,
and to turn the interests of the rising generation as completely as
possible into a new direction.

The incomplete and fragmentary character of our present know-
ledge in the second half of medieval history as compared with the
first, I do not need, I am sure, even to illustrate. In narrative history
proper, in the merely political history of states and dynasties, how
many broad gaps are there not, like the reigns of Edward II, of
Henry VI, in English history, as yet practically unfilled by any
minutely critical study. How much of the whole field is still to all
intents virgin soil. And even in those portions which have been
carefully studied in detail, the reigns of William the Conqueror, of
John, of Henry IV, no one can believe the work to be yet complete.
However minute and painstaking may be the study of the man who
first breaks way for our knowledge of an age, it can never be final.
It must be subjected to the searching examination and criticism of
other scholars, turned to this light and to that, filled out, cut away,
and reshaped, before we reach a firmly fixed agreement on the age,
of which indeed the work of the bahn-brechenden scholar is likely
to form the solid foundation. What portion of the narrative, political
history of the later Middle Ages has yet reached this stage?

If we turn to the institutional history of the period, the condition
of our knowledge is equally or even more backward. The constitu-
tions of modern states excite great interest and have been or are

132 MEDIEVAL HISTORY

being most thoroughly studied. The history of institutions from
Roman days to the. triumph of feudalism may be called, as I have
said, almost, or quite a completed science. Even of feudalism itself,
as it stood established in the thirteenth century on the eve of its fall,
we may assert almost as much. But what have we a right to say of
the age that follows. And yet under every modern constitution lies
feudalism. The age of feudal decay was the age when all modern
institutions took their form, when the direction of their growth was
fixed, and when those momentous differences which have controlled
the peculiar destinies of nations were determined. What can we
understand of the origins or peculiarities of our present constitutions
until we know surely under what conditions and into what forms the
feudal constitution of a given nation dissolved itself. Of the history
of England this is especially important, because of the wide conquests
in other lands which the English constitution has made and is still
destined to make; and yet the great bulk of English institutional
history as it exists in printed form traces the origins of that constitu-
tion back to theoretical, imaginary, or largely misunderstood begin-
nings in Saxon times. And if the judgment of the scholars of the
day is finding a sounder basis for English constitutional history in
Frankish rather than in Saxon institutions, this change of doctrine
has as yet made but little impression on popular opinion. The
process needs to go, however, a step further yet, and the real explana-
tion of the more important peculiarities of the English constitution
to be found not merely in Frankish institutions as introduced by the
Norman conquest, but in that thorough feudalism which accompanied
or shortly followed that event.

May I be allowed one concrete example. The right of impeachment,
though it may be destined to longer life in the United States for
purposes different from those for which it was originally intended,
is practically obsolete in England itself, owing to the development
of the cabinet system, but it is of great historical interest for its
part in the establishment and defense of the constitution. If now
we look critically at the details of the impeachment process we shall
find, I think, so peculiar and astonishing a process, that we shall
feel justified in declaring that it could never have been invented de
novo by any absurd freak even of the human mind; but if we trace
it back into the feudal conditions and institutions from which modern
legislatures arose, we see at once how naturally and simply it came
into being.

In the study which has already been given to the transition from
the medieval constitution to the modern, those features which seemed
the most striking have received the most attention, — the position
of the king, the development of a legislative system, the growth of
the judiciary. But while we have collected on these subjects a

PRESENT PROBLEMS OF MEDIEVAL HISTORY 133

large body of knowledge which seems firmly established, yet it will
be found on careful analysis that considerable portions of it are
based on general views rather than built up from an exact knowledge
of detailed fact. Current ideas of the origin of the representative
system are based mainly on the surface appearance of things, and
need to be subjected to the test of a minute analysis of sources.
Scarcely an attempt has been made as yet to trace scientifically the
growth of what may be called the national feeling, the sense of a
corporate unity in the community as over against the king, or over
against the government of the state. The transformation of the
feudal baronage into a social nobility is popularly set much too late
in time and is hardly at all understood. These are but examples of
numerous fields that remain to be worked, but it is plain that we
must be in possession of the results of the study of them before we
can say anything final of the origins of modern constitutions. The
three things which I have mentioned constitute indeed the very
essence of the transformation of the medieval into the modern state.
If this is true of those subjects which have naturally attracted the
first attention of students, it is yet more true of other sides of the
process. Almost the whole administrative system — for instance,
the rise of the modern governmental departments, the development
of modern out of feudal taxation — is practically unknown territory.
Is there in truth a single institution of this transition period of which
we can say with confidence that we know its history as thoroughly
as we do most of the institutions of the Carolingian or of the early
feudal age?

There is also another line of study, representing a second stage
in our knowledge, since it must be based on a considerable body of
already established fact, in which only a beginning has been made
- 1 mean the comparative study of institutions. I have just said
that history in the second half of the Middle Ages divides into sepa-
rate fields along national lines which have not much in common with
one another, and that we cannot assert with confidence that what we
find true in one field exists in another. This is certainly a fact. The
comparative method itself has also been attacked as unsound and un-
safe, and it must be admitted that it leads easily to abuses, especially
when it is used to establish the unknown. If, however, it is employed
with care and less to prove what was the fact than to assist us to
understand what we already partly know, it has an important and
even necessary service to render. The feudalism of the kingdom of
Jerusalem throws much light on the feudalism of the kingdom of
England. The curia regis was transformed in many states and in the
same general age into the beginnings of the modern legislature.
At the same time in the various states and in much the same way,
the judicial system, the administrative machinery, the financial

134 MEDIEVAL HISTORY

organization, were differentiated from one another out of the older
and simpler feudal government. It must be true that this process
of differentiation in one state had much of similarity with that in
another, and while we shall never be justified in saying that because
we are certain of a fact in French history we must therefore find it
in English, we have a right to expect a comparison of results to
clarify our knowledge, to help us in the understanding and arrange-
ment of details, and even to point out to us where to look and what
to look for. Here then is another large field of work in which already
something has been done, but hardly more than enough to show
what is possible. *

It would be possible to point out still further work that needs to
be done in the second half of the Middle Ages. I have taken my
illustrations from the field of political history, which is the peculiar
field of this Section, and their form has been determined by my own
special interest; but the ecclesiastical, intellectual, economic, artistic,
and scientific revolutions of that period were not less decisive than
the political and institutional, nor is a thorough understanding of
them less essential to our knowledge of the age. The same work
must be done in all these directions, and the results brought into
form for combination in a common whole before the period of pre-
paration can be ended. Here is surely work of the very highest order
for a generation, for a half-century, of historical investigation. The
militant progressive historical scholarship of the first half of the
twentieth century, in so far as it deals with the Middle Ages, should
find in the last five hundred years of that field the place to apply
with rich results the keen critical insight, the skilled historical
judgment, which should still be trained in the study of the first five
hundred years. Perhaps it may be thought that fifty years is too
short a time in which to bring our knowledge of these centuries to
a practical completion, but if we take account of what has been
done in our knowledge of the earlier period in the last fifty years,
and especially if we consider the amount of surely established
knowledge with which Waitz and Roth began what it is not too
much to call tjie first scientific study of the Middle Ages, and com-
pare it with that with which we may now begin our study of the
later period, we have every reason to look forward to the practical
completion of our task in but little more than the lifetime of a
modern generation. Then it will be possible for a definitive work to
be written on the whole of the Middle Ages. Then we may hope to
understand with some completeness the origins of modern govern-
ments and to be able to find the historical explanation of their
peculiarities.

At the beginning of this paper I spoke of certain lines of investiga-
tion as likely to lead to the largest new results in our field. The pro-

PRESENT PROBLEMS OF MEDIEVAL HISTORY 135

fessed historian is not the only student of the problems of medieval
history. A large amount of work is being done upon them and more
will be done in the future by two groups of scholars who are not, in
their opinion at least, of his guild, by the economic historian and by
the sociologist. And the fact that these scholars do not always look
at our problems from quite our point of view or formulate them in
quite our terms has its own advantages. Much of their work is cer-
tain to be of a sort which the scientific historian cannot approve,
but in the end, it is my firm belief that we have to expect from their
labors more light on the difficulties still remaining in the first half
of medieval history than from any efforts of -our own, very great
help in solving the problems of the second half, and throughout
the whole period much assistance in reaching a better understanding
of what is already well established. The economic historian should
indeed consider himself — and many of them do — primarily an his-
torian. He should be as thoroughly trained in the methods of his-
torical research as the historian and as scrupulously bound by them.
In his study of the facts it should be his first and highest ambition
to ascertain "wie es eigentlich gewesen." In all this he should be
the historian, but he should be more than this. With a training in
economic science equal to that which he has received in historical
method, he should be able to detect in many crises of history more
quickly and clearly than we can the presence of decisive economic
factors, and be able to explain their action in such a way that we shall
come to understand more perfectly the result produced. That there
are many places in the history of the Middle Ages where work of this
sort is greatly needed will be instantly admitted. Beginnings have
been made through the whole period, but except here and there
nothing but beginnings. The origin of feudalism and its fall; the
transformation of the slave into the serf and of the serf into the free
laborer; the effects of the scarcity of money and of its revived use;
the decline and recovery of commerce; the rise of the third estate
and the renewal by the state of regular taxation; these are general
topics whose mere mention suggests the useful service which the eco-
nomic historian has rendered or may still render. Minor topics, like
the question of the commercial factors in England's parliamentary
advance in the fourteenth century, are innumerable. It is hardly
necessary to say that the professed historian welcomes most heartily
such work upon the problems he is trying to solve, that he stands
ready to afford it every encouragement, and to incorporate its
results with his own or to modify his own by them whenever neces-
sary. He sometimes finds the tone in which they are expressed
a trifle trying, but that is not a serious matter. It is characteristic
of a young science to exalt itself, to magnify the importance of its
results and the necessity of its processes. More serious is the tend-

136 MEDIEVAL HISTORY

ency, of which there have been many examples, and which some-
times seems as if it were inevitable in the economic historian, to
stop the process of investigation too soon, in order to theorize, or
to attempt to explain the facts before they are understood. Would it
be unfair to say that in proportion as economic training predominates
over historical, in such proportion is this tendency present? How-
ever this may be, it is true that against the tendency to theorize too
soon there is only one effectual safeguard, and that is the thorough
discipline of the critical judgment, which it should be the business
of historical training to impart to the point where the mind may be
trusted instinctively to know when the fact is well established and
when it is still more or less doubtful. In any case the historian should
not yield to the temptation to judge this tendency more severely in
the economic historian than in imperfectly trained members of his
own company, and he should be ready as in their case to separate
the real result from the premature explanation. While I desire to
express strongly, as I have done, my belief that we have such a gain
from these investigations, I am also desirous of repeating emphatically
my earlier statement that in my opinion none of the more important
results which the historian has already reached concerning the facts
of the first half of the Middle Ages is likely to be overturned or seri-
ously modified by the study of economic history.

With the sociologist we have a less close relationship, and from him
we have to expect much more that is not so directly historical. We
have indeed, I think, a strong tendency to look on his invasion of
our preserves with suspicion. The economist's tendency to explain
seems carried in the sociologist to an extreme which it is impossible
to resist, and the numerous premature attempts which he has
already made to formulate the fundamental laws of history, or to
propound its final philosophy, give us good ground for suspicion.
We remember that such attempts to explain history philosophically
were very numerous in the infancy of our own branch of learning -
as speculation is perhaps in the infancy of all learning; we see very
quickly that the sociological historian is not always trained in the
methods of historical criticism, that he is apt to get his knowledge
of facts at second-hand, and often imperfectly, with frequent mis-
understandings, and with a strong tendency to take them from one-
sided and partial students who exaggerate the historical factors in
which the sociologist is himself most interested, — and that he
often regards as established facts the conclusions of some single
scholar whom no one follows; and we are tempted to suspect that
metaphysical phraseology sometimes conceals a lack of clear and
definite thinking.

If I have stated these points of criticism strongly, it is in no un-
friendly spirit. It is rather because I believe so firmly in the great

PRESENT PROBLEMS OF MEDIEVAL HISTORY 137

service which these studies may render to our own if only the method
is historical when the problem is historical — a service so great
that without the work of the economic historian and the sociologist,
the task of completing our scientific knowledge of medieval history
seems to me almost impossible. What their method should be in
the study of problems not historical, I do not presume to say.

But from the work of the sociologist in two different fields at least,
lying at the two extremes of history, we have, I think, to expect light
on the difficulties of medieval history. The first we call the pre-
historic field, the study of primitive man, the earliest institutional
development of the race. The term prehistoric is, of course, in one
sense a misnomer. The investigation of primitive institutions is
really a study in history. It differs from the study of medieval
institutions only in the character of the material from which con-
clusions must be drawn, but as a field clearly distinct in itself it is
now generally recognized as the province of the sociologist, and to
this there can be no objection. Here is an ample opportunity for
truly scientific work, and much has already been made of it. From
its results light is to be expected on many details of medieval civil-
ization, manners, practices, and beliefs in daily life, in government,
law, and religion. Even modern society shows many survivals of
primitive ideas, and medieval many more. The investigation of these
subjects will fill out and enrich our knowledge of details, but they
are not likely to affect the more important conclusions of historians.
From the other field of sociological study, the study of present society,
we have, I think, far more of importance to expect. We may not agree
in full with the dictum that we can only know history by knowing
present society, but the value of such a knowledge is obvious. The
social reasons for things are far more easily discovered from a study
of present than from a study of past conditions, and social reasons
probably have a larger share in the explanation of results than we
historians have always been inclined to allow. At any rate light on
social organization, movements of population, the operation of race
as an active historical factor, the influence of sanitary conditions,
the sources of ideas of morality, religion, and law, and the methods
of their growth, and a dozen other equally important subjects will
be very welcome to us. The results of the sociologist's work, when
they are put in form for us, will assist us less in determining what the
fact was — that is primarily our work — than in understanding it
when known. They will be confirmatory and enlightening rather
than revolutionary, but no less important on that account.

In conclusion, let me congratulate all workers in medieval history,
whether they are working directly or indirectly, whether they bear
the name of historian or not, on the great results which have been
achieved in our field in the last fifty years, and still more on the out-

138 MEDIEVAL HISTORY

look for the coming half-century. It is a great epoch in the history
of any science when it begins to see in clear detail the road which
it must follow to the not distant goal — not to the knowledge
of every fact, but to the completion of its most important task. It
should be to every traveler on the way a broadening and inspiring
vision.

SUPPLEMENTARY PAPERS

A short paper was contributed to this Section by Professor Earl W. Dow, of the
University of Michigan, and Secretary of the Section, on "The Early Commune
and the Local Secular Law at Beauvais," in which the story of the suit of the
canons at Beauvais was set forth in a new and attractive form and much light
thrown upon the ecclesiastical laws of the age. Supplementary to this was an
interesting discussion of the development of the Commune at Beauvais and the
local statutes governing its administration.

A short paper was also presented before this Section by Professor N. M. Tren-
holme, of the University of Missouri, entitled, "A Communication Relative to
the English Monastic Towns." The paper discussed briefly the establishment
under monastic control during the early Middle Ages of a number of important
towns usually attached to some of the greater Be'ne'dictine abbeys, with special
privileges and immunities confirmed by charters or gifts. The origin of these
towns, the conflicts between ecclesiastical and lay authorities, and the laws
governing these special privileges were clearly and forcibly set forth.

>.<v.

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in a new
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EDWARD GAYLORD BOURNE, Ph.D.f

Professor of History,
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CHARLES W. COLBY, : P-k.D.,' D.CJ*,, •

KinKsf«rd Professor of History, McGill U Hirers*

' v *?t forth.

HOAT. ;.4.U/:.9 B. PERKINS, LL.D.,

(Gradtwtc and LL.D., University of Rochester)
Historian and Congressman.

JOffX n. 1WRY. LL.D.,
Professor of Modern History. University of Cambridge.

SECTION D
MODERN HISTORY OF EUROPE

(Hall 3, September 22, 10 a. m.)

CHAIRMAN: HONORABLE JAMES B. PERKINS, Rochester, N. Y.
SPEAKERS: PROFESSOR J. B. BURY, University of Cambridge.

PROFESSOR CHARLES W. COLBY, McGill University, Montreal.
SECRETARY: PROFESSOR FERDINAND SCHWILL, University of Chicago.

THE Section of Modern History of Europe was presided over by
Honorable James B. Perkins, of Rochester, New York. In introduc-
ing the speakers the Chairman stated that no period in the long
record of man's development has greater interest to the historical
student than that which we roughly classify as the modern history
of Europe. In it we have scientific discoveries and modifications
of religious belief, which have changed our theories of man's place in
nature and of his relations to the powers which control nature; we
have developments in political science, which have replaced the forms
of government that prevailed three centuries ago by the govern-
ments of popular rule which now exist in the most advanced nations
of the world. These also may be modified in the future, but they will
never return to the forms of the past. We have industrial changes, that
have altered not only the economic but the social character of society.
The study of such a period demands the highest faculties of the
historian and affords possibilities of the most fruitful return.

THE PLACE OF MODERN HISTORY IN THE PERSPECTIVE
OF KNOWLEDGE

BY JOHN B. BURY

[John B. Bury, Professor of Modern History, Cambridge University, b. Oct. 16,
1861. B.A. Trinity College, Dublin, 1882; Fellow, ibid. 1885; M.A. ibid. 1885;
Professor of Modern History, Dublin University, 1893-98; Professor of Greek,
ibid. 1898-1902; Professor of Modern History, Cambridge University, 1902-

. Author of History of the Later Roman Empire, from Arcadius to Irene;

Student's History of the Roman Empire, from Augustus to Marcus Aurelius ;
History of Greece to Death of Alexander the Great. Editor of Pindar's Isthmian
Odes; and Nemean Odes; Freeman's History of Federal Government in Greece;
Gibbon's Decline and Fall of the Roman Empire.]

To define the position which the history of the last four hundred
years occupies as an object of study, or to signalize its particular
importance as a field of intellectual activity, requires a preliminary
consideration of the place which history in general holds in the
domain of human knowledge. And this consideration cannot be
confined to purely political history. For political history is only an
abstraction, — an abstraction which is useful and necessary both
practically and theoretically, but is unable to serve as the basis
of a philosophical theory. Political development in the chronicle of
a society, or set of societies, is correlated with other developments
which are not political; the concrete history of a society is the
collective history of all its various activities, all the manifestations
of its intellectual, emotional, and material life. We isolate these
manifestations for the purpose of analysis, as the physiologist can
concentrate his attention on a single organ apart from the rest of the
body; but we must not forget that political history out of relation
to the whole social development of which it is a part is not less
unmeaning than the heart detached from the body.

The inevitable and perfectly justifiable habit of tracing political
development by itself, and making political events chronological
landmarks, led to an unfortunate restriction of the use of the word
history, which, when used without qualification, is commonly taken
to mean political history, and not history in the larger concrete
sense which I have just defined. This ambiguity furnishes an ex-
planation and excuse for the view that history is subservient to
political science, and that the only or main value of historical study
consists in its auxiliary services to the study of political science.
This doctrine was propagated, for instance, by Seeley, and gained
some adhesion in England. Now if we detach the growth of political
institutions and the sequence of political events from all the other
social phenomena, and call this abstraction history, then I think

143

Seeley's theory would have considerable justification. History, in
such a sense, would have very little worth or meaning beyond its
use as supplying material for the inductions of political science, the
importance of which I should be the last to dispute. But if the
political sequence is grasped as only one part of the larger develop-
ment which constitutes history in the fuller sense, then it is clear
that the study of political history has its sufficient title and justifica-
tion by virtue of its relation to that larger development which
includes it, and that it is not merely the handmaid of political
science. Political science depends upon its data, and, in return,
illuminates it; but does not confer its title-deeds.

But a larger and more formidable wave, threatening the liberty
of history, has still to be encountered. It may be argued that the
relation of dependence holds good, though it must be stated in a
different and more scientific form. It may be said : Political science
is a branch of social science, just as political history is a part of
general history; and the object of studying general history is simply
and solely to collect and furnish material for sociological science.
Thus the former theory reappears, subsumed under a higher prin-
ciple. The study of history generally is subordinate to sociology;
and it follows that the study of political history especially is sub-
ordinate to that branch of sociology which we call political science.
The difference, and it is a very important difference, is that, on this
theory, political history is no longer isolated; its relations of coor-
dination and interdependence with the other sides of social develop-
ment would be recognized and emphasized. But the study of general
history, including political, would be dependent on, and ancillary
to, a study ulterior to itself.

Now this theory seems to run counter to an axiom which has been
frequently enunciated and accepted as self-evident in recent times,
namely, that history should be studied for its own sake. It is one
of the remarkable ideas which first emerged explicitly into con-
sciousness in the last century that the unique series of the phenomena
of human development is worthy to be studied for itself, without
any ulterior purpose, without any obligation to serve ethical or
theological, or any practical ends. This principle of "history for its
own sake" might be described as the motto or watchword of the
great movement of historical research which has gone on increasing
in volume and power since the beginning of the last century. But
has this principle a theoretical justification, or is it only an expedient
but indefensible fiction instinctively adopted? Is the postulate of
"history for its own sake" simply a regulative idea which we find it
convenient to accept because experience teaches us that independence
is the only basis on which any study can be pursued satisfactorily and
scientifically; and while we accord history this status, for reasons

144 MODERN HISTORY OF EUROPE

of expedience, is it yet true that the ultimate and only value of
the study lies in its potential services to another discipline, such
as sociology?

Tt seems to me that our decision of this question must fall out
according to the view we take of the relation of man's historical
development to the whole of reality. We are brought face to face
with a philosophical problem. Our apprehension of history and our
reason for studying it must be ultimately determined by the view we
entertain of the moles et machina mundi as a whole. Naturalism will
imply a wholly different view from idealism. In considering the
place of history in the kingdom of knowledge, it is thus impossible
to avoid referring to the questions with which the so-called philo-
sophy of history is concerned.

If human development can be entirely explained on the general
lines of a system such as Saint-Simon's or Comte's or Spencer's, then
I think we must conclude that the place of history, within the frame
of such a system, is subordinate to sociology and anthropology.
There is no separate or independent precinct in which she can pre-
side supreme. But on an idealistic interpretation of knowledge, it is
otherwise. History then assumes a different meaning from that of
a higher zoology, and is not merely a continuation of the process of
evolution in nature. If thought is not the result, but the presup-
position, of the process of nature, it follows that history, in which
thought is the characteristic and guiding force, belongs to a different
order of ideas from the kingdom of nature and demands a different
interpretation. Here the philosophy of history comes in. The very
phrase is a flag over debated ground. It means the investigation
of the rational principles which, it is assumed, are disclosed in the
historical process due to the cooperation and interaction of human
minds under terrestrial conditions. If the philosophy of history is not
illusory, history means a disclosure of spiritual reality in the fullest
way in which it is cognizable to us in these particular conditions.
And, on the other hand, the possibility of an interpretation of history
as a movement of reason, disclosing its nature in terrestrial circum-
stances, seems the only hypothesis on which the postulate of "history
for its own sake" can be justified as valid.

This fundamental problem belongs to philosophy and lies outside
the scope of discussion. All that can be done for the present occasion
is to assume the validity of that kind of interpretation which is
generally called the philosophy of history, and, starting with this
postulate, to show the particular significance of modern history.
Perhaps it may be said that such interpretation is quite a separate
branch of speculation, distinct from history itself, and not necessarily
the concern of an historical student. That is a view which should
be dismissed, for it reduces history to a collection of annals. Facts

THE PLACE OF MODERN HISTORY 145

must be collected, and connected, before they can be interpreted;
but I cannot imagine the slightest theoretical importance in a collec-
tion of facts or sequences of facts, unless they mean something in
terms of reason, unless we can hope to determine their vital con-
nection in the whole system of reality. This is the fundamental
truth underlying Macaulay's rather drastic remark that "facts are
the dross of history."

It is to be observed that the idea of history as a self-centred
study for its own sake arose without any consciousness of further
implications, without any overt reference to philosophical theory or
the systematization of knowledge. It appeared as an axiom which
at once recommended itself as part of the general revolutionary
tendency of every branch of knowledge to emancipate itself from
external control and manage its own concerns. While this idea
was gaining ground, a large number of interpretations or "philo-
sophies" of history were launched upon the world, from Germany,
France, England, and elsewhere. They were nearly all constructed
by philosophers, not by historians; they were consequently con-
ditioned by the nature of the various philosophical systems from
which they were generated; and they did a great deal to bring the
general idea of a philosophy of history into discredit and create the
suspicion that such an idea is illusory. I observe with interest that
this Congress, in the Department of Philosophy, assigns a section
to the Philosophy of Religion but not to the Philosophy of History.
I feel, therefore, the less compunction, that my argument compels
me to make some remarks about it here.

I need hardly remind you that the radical defect of all these
philosophical reconstructions of history is that the framework is
always made a priori, with the help of a superficial induction. The
principles of development are superimposed upon the phenomena,
instead of being given by the phenomena; and the authors of the
schemes had no thorough or penetrative knowledge of the facts
which they undertook to explain. Bossuet boldly built his theory
of universal history on the hardly disguised axiom that mankind
was created for the sake of the Church; but nearly all the specu-
lative theories of historical development framed in the nineteenth
century, though less crudely subjective, fall into the same kind of
fallacy.

Two of the most notable attempts to trace the rational element
in the general movement of humanity were those of Hegel and
Krause. They are both splendid failures, Hegel's more manifestly so.
They are both marked by an insufficient knowledge of facts and
details, but in imposing his a priori framework Hegel is far more
mercilessly Procrustean than Krause. It was the modern period
which suffered most painfully through Hegel's attempt to screw his-

146 MODERN HISTORY OF EUROPE

tory into his iron bed. His scheme implies that the modern period
represents the completion of historical development, is part of the
last act in the drama of the human spirit. This implication is pre-
posterous. What we know about the future is that man has an
indefinite time in front of him, and it is absurd to suppose that in
the course of that time new phases of thought will not be realized,
though it is quite impossible for us to predetermine them. This error
alone is sufficient to cast suspicion on the whole edifice. For the
stages of history, as a revelation of spirit, correspond ex hypothesi
to the dialectical stages in the logical evolution of the idea; and if
Hegel fixes the terminus of the historical evolution at a point im-
measurably distant from the true term, it evidently follows that the
correspondences which he has established for the preceding stages
with stages in the logical evolution must be wholly or partly wrong,
and his interpretation breaks down. The keys are in the wrong locks.
Krause's system, which has had considerable influence in Belgium,
avoids the absurdity of not allowing for progress in the future, —
a consideration which there was no excuse for ignoring, since it had
been recognized and emphasized by Condorcet. He divides the whole
of human history, including that which is yet to come, into three
great periods, — the ages of unity, of variety, and of harmony, —
and pronounces that mankind is now in the third and last stage of
the second period. This theory, you perceive, has an advantage
over Hegel's in that it gives the indefinite future something to do.
But, although this Procrustes is more merciful, the Procrustean
principle is the same; there is an a priori system into which human
development has to be constrained. I am not concerned here to
criticise the method on which Krause proceeds; I only want to illus-
trate by two notable examples, that of Hegel who ignores the future,
and that of Krause who presumes to draw its horoscope, how the
philosophy of history has moved on false lines, through the illusion
that it could construct the development of reason in history from
any other source than history itself. By the one example we are
taught that, in attempting to interpret history, we must remember
there is no such thing as finality within measurable distance:

His ego nee metas rerum nee tempora pono;

while the other example warns us that in considering the past it is
idle to seek to explain it by any synthesis involving speculations on
the inscrutable content of the future.

It is, indeed, curious to note how the authors of the numerous
attempts to present a philosophical construction of history, which
appeared during the nineteenth century, assume, so naively, that
their own interpretations are final, and that the ideas which are
within the horizon of their minds are the ultimate ideas to be sighted

THE PLACE OF MODERN HISTORY 147

by man, the last ports to be visited in his voyage down the stream of
time. It is strange how this childish delusion, this spell of the present,
has blinded the profoundest thinkers. Hegel thought that the final
form of political constitution was something closely resembling the
Prussian state, that the final religion is Christianity, that the final
philosophy is his own. This was logical in his case, because it was
part of his view that the plenitude of time has come; yet we can have
very little doubt that this doctrine was prompted psychologically
by what I have called the spell of the present. But even those who
were able, in phrase at least, to transcend the present and look
forward to indefinite progress, speak and argue nevertheless as if
the ideas which are now accessible and within the range of our vision
could never be transcended in the course of the progress which
they admit. The absurdity of this view is illustrated by reflecting
that the ideas with which these writers conjured — such as humanity,
liberty, progress, in the pregnant meanings which those words now
possess — were beyond men's horizon a few centuries before. We
must face the fact that our syntheses and interpretations can have
only a relative value, and that the still latent ideas which must
emerge in the process of the further development of man will intro-
duce new and higher controlling conceptions for the interpretation
of the past.

I have pointed out the common error into which philosophies of
history have fallen, through not perceiving that in order to lay bare
the spiritual process which history represents, we must go to history
itself without any a priori assumptions or predetermined systems.
All that philosophy can do is to assure us that historical experience
is a disclosure of the inner nature of spiritual reality. This disclosure
is furnished by history and history alone. It follows that it is the
historian and not the philosopher who must discover the diamond
net; or the philosopher must become an historian if he would do so.

But not only is it necessary to abandon unreservedly the Pro-
crustean principle; the method of approach must also be changed.
This is the point to which it has been my particular object to lead up.
The interpreter of the movement of history must proceed backward,
not forward; he must start from the modern period. Fora thorough,
fully articulated knowledge of the phenomena is essential — not
the superficial acquaintance with which speculators like Hegel
worked; and such a knowledge is only attainable for the modern
period, because here only are the requisite records preserved. Here
only can one hope to surprise the secrets of the historical process
and achieve a full analysis of the complex movement. The records
of ancient and medieval history are starred with lacunae; we are
ignorant of whole groups of phenomena, or have but a slight know-
ledge of other groups; and what we do know must often be seen in

148 MODERN HISTORY OF EUROPE

false perspective and receive undue attention on account of the
adjacent obscurities. We can survey and attempt syntheses; but
syntheses without fully articulated knowledge are no more than
vague shots in the direction of a dimly seen object. And the only
syntheses possible in such conditions are insignificant generalities,
bloodless abstract conceptions, like the d/tevT/va Kaprjva of Homer's
world of shades. The interpretation of history that shall be more
than a collection of plausible labels must grasp the vital process,
perceive the breath and motion, detect the undercurrents, trace the
windings, discern the foreshado wings, see the ideas traveling under-
ground, discover how the spiritual forces are poised and aimed,
de-termine how the motives conspire and interact. And it is only for
the history of the last three or four hundred years that we possess
material for investigating this complicated process.

And it is for the development of the nineteenth century that our
position in some respects is most favorable. It is commonly said that
recent history cannot be profitably studied, on the ground that we
are too near to the events to be able to treat them objectively and see
them in the right perspective. Admitting the truth of the objection,
recognizing fully that recent events are seen by us "foreshortened
in the tract of time," we must nevertheless remember that there is
a compensation in proximity which it is disastrous to ignore. For
those who are near have opportunities of tracing the hidden moral
and intellectual work of an age which subsequent generations cannot
reach, because they are not in direct relation. De Tocqueville said:
"What contemporaries know better than posterity is the mental
movement, the general passions and feelings of the time, whereof
they still feel the last shuddering motions (les derniers frfmissements)
in their minds or in their hearts." If this is so, it is one of the most
pressing duties to posterity that men in each generation should
devote themselves to the scientific study of recent history from
this point of view.

We may go further, and declare that, in this light, modern history
as a whole possesses a claim on us now, which does not belong either
to antiquity or to the Middle Ages. We have ourselves passed so
completely beyond the spiritual boundaries of the ancient and
medieval worlds that we can hardly suppose that we possess any
greater capacity for a sympathetic apprehension of them than our
descendants will possess a thousand years hence. Whereas, on the
other hand, we may fairly assume that we are in a much better
position than such remote posterity for sympathetic appreciation of
the movements — the emancipatory movements — of the sixteenth,
seventeenth, and eighteenth centuries. It therefore devolves upon
us before we have drifted too far away to do what may be done to
transmit to future generations the means of appreciating and com-

THE PLACE OF MODERN HISTORY 149

prehending. In this sense the study of what we call modern history
is the most pressing of all.

But I have permitted myself to digress from the argument. I was
concerned to show that our only chance of tracing the movement
and grasping the principles of universal history is to start with the
study of the modern age where our material is relatively full, and
proceed regressively. One great mistake of those who have attempted
philosophies of history has been that they began at the other end, —
not at the beginning, but at whatever point their knowledge happened
to reach back to, perhaps in China, perhaps in the Garden of Eden, -
and were consequently obliged to adopt a difficult and precarious
synthetic method. Precarious, because in passing on from one stage
to another there is no guarantee, owing to our fragmentary material,
that we have knowledge of all that is significant, and therefore the
synthesis which expresses the transition to a higher stage may be
vitiated by incompleteness. We may be acquainted only with some
of the forces which determine the sequel, and, if we proceed as
though we had all those forces in our hands, our conception of
the sequel will be inadequate.

On the analytic method, on the contrary, we start from a definite
terminus, namely the present, — contingent indeed, but not arbitrary,
since it is the only possible limit for the given investigator, — and in
the first stage we have all the material, so that it is the fault of the
investigation and not the result of accident if the analysis is not
exhaustive. The problem then is, having grasped the movement of
the ideas and spiritual forces which have revealed themselves in the
modern period, to trace, regressively, the processes out of which they
evolved, with the help of our records. This, at least, is the ideal to
which the interpreter would try to approximate. That, with frag-
mentary records, the whole historical movement can ever be traced
by methods of inference, I do not indeed believe; but assuredly
it is only in the period where the records exist that we can first detect
the secret of the process or begin to discern the figure on the carpet.

But the question will be asked: Can we define absolutely the
position of the modern period in the secular perspective of history?
The field of what we call "modern history" has a roughly marked
natural boundary at the point where it starts, towards the end of the
fifteenth century. We may say this without any prejudice to the
doctrine of continuity. But the phrase is used to cover all post-
medieval history, and therefore the hither limit is always shifting.
For while it is usual to mark off the last thirty or forty years as
"contemporary history," as years pass on the beginning of "con-
temporary history " moves forward, and the end of the modern as
distinguished from the contemporary period moves forward too. The

150 MODERN HISTORY OF EUROPE

question arises whether this conventional nomenclature is any
longer appropriate, whether all post-medieval history can be scienti-
fically classified as a period, with the same right and meaning as the
Middle Ages. " Ancient History " is of course a merely conventional
and convenient, unscientific term; is this true of "Modern History "
also? It may be thought that the answer is affirmative. It may
seem probable that the changes which began at the end of the
eighteenth century, the great movements of thought which have
thrilled the nineteenth century, the implications of the far-reaching
vistas of knowledge which have been opened, mark as new and
striking a departure as any to which our records go back, and con-
stitute a Neu-zeit in the fullest sense of the word; that in the nine-
teenth as in the sixteenth century man entered into a new domain of
ideas; that of the nineteenth as much as of the sixteenth are we
justified in saying

Ab integro saeclorum nascitur ordo.

If so, our nomenclature should be altered. The three centuries after
Columbus should be called by some other name, such as post-medieval,
and " modern " should be appropriated to the period ushered in by the
French Revolution and the formation of the American Common-
wealth, until in turn a new period shall claim a name which can
never be permanently attached. It would follow that in the His-
torical Department at this Congress, there should be another section;
the nineteenth century, the more modern modern period, should have
a section to itself. In Germany, a distinction of this kind has been
adopted. The sixteenth, seventeenth, and eighteenth centuries are
described as die neuere Zeit; while the nineteenth is distinguished as
die neueste Zett.

Among the notes which form the stamp and signature of this
neueste Zeit is the new historical interest, if I may say so, which has
become prevalent in the world and is itself an historical fact of su-
preme importance. It is expressed not only in the enormous amount
of research that has been done, but in the axiom of " history for its
own sake, "and also in the attempts to create a philosophy of history.
It is a new force set free, which will have its own place in the complex
of the driving forces of the world. It is to be taken along with the
equally recent development of a consciousness of our relations to
future generations, which is practically reflected in a growing sense of
duty to posterity. Both facts taken together, the interest in human
experience and the interest in human destiny, represent a new sense
of the solidarity of humanity, linking past ages and ages to come.
In other words, the human mind has begun to rise above the immedi-
ate horizon of the circumstances and interests of the present genera-
tion, and to realize seriously, not as a mere object of learned curi-
osity, the significance of the past and the potentialities of the future.

THE PLACE OF MODERN HISTORY 151

The most familiar of words, past and future, have become pregnant
with significance; they are charged with all the implications of a
new perspective.

It is clear that this new sense is inconsistent with the affirmation
of Arnold and Seeley that contemporary is superior to preceding
history by all the superiority of an end to the means. This doctrine
expresses the attitude of the old unregenerate spirit. The theoretical
truth which it contains is simply this, that contemporary history
represents a more advanced stage than any preceding it, or, in other
words, there is a real evolution. But for the same reason it is itself
inferior to the development which will succeed»it; and if past history
is to be described as a means, contemporary history must be equally
described as a means, on the same ground. Theoretically, therefore,
this teleological argument has no application; it would not become
relevant till the end of the process has been reached. But what
Arnold and Seeley probably had most in mind was the importance
of comprehending the past for the sake of comprehending the present
for practical purposes. (This is now so fully understood and recognized
that I have not thought it necessary to dwell on it to-day. It is now
generally acknowledged, by those whose opinion need be considered,
that the practical value of history consists not, as used to bethought,
in lessons and examples, but in the fact that it explains the present,
and that without it the present, in which we have to act, would be
incomprehensible. It is modern history, of course, that is here
chiefly concerned. Lord Acton said : " Modern history touches us so
nearly, it is so deep a question of life and death, that we are bound
to find our own way through it, and to owe our insight to ourselves."
I venture to think that Lord Acton, in this characteristic statement,
rather strains the note; but the statement concerns, you observe, the
practical not the theoretical value of the subject.)

To attempt to define absolutely the significance of modern or
recent history in the order of development would be to fall into an
error like that for which I criticised Hegel and Krause and others
who thought to draw forth Leviathan with a hook. It is much if it
can be established, as I think it can, that with the nineteenth century
the curtain has risen on a new act in the drama. But we can be more
confident in asserting negatives. The ideas and forces which have
driven man through the last four hundred years and are driving him
now, are not the last words or dooms in the progress of reason. The
idea of freedom which the modern world has struggled to realize
has been deemed by many the ultima linea rerum; but it is difficult
to see how or why it should be final, in the sense of not being super-
seded by the appearance of higher ideas which its realization shall
have enabled to emerge. Or again, it is unreasonable to suppose that
the idea of nationality wrhich has recently played and still plays a

152 MODERN HISTORY OF EUROPE

great role, is an end in itself or more than a phase in evolution. We
must acquiesce in our incompetence to form any scientific judgment
as to the value or position of this stage in the total development.

To state briefly the main thesis of this paper. The answer to the
question, " What is the position of modern history in the domain of
universal knowledge? " depends in the first instance on our view of
the fundamental philosophical question at issue between idealism
and naturalism. If we are believers in naturalism, then all history,
including modern history, has its sole theoretical value in the function
of providing material for the investigation of sociological laws. It
must accept a position such as Comte assigns to it. But if we are
idealists, if we hold that thought is a presupposition of physical
existence and not a function of matter, then history as a disclosure of
the evolution of thought has an independent realm of its own and
demands a distinct interpretation, to prepare for which is the aim of
historical research. The segment of history which we call modern,
from the sixteenth century onward, occupies a peculiar place, be-
cause here, partly in consequence of the invention of printing, our
materials begin to be adequate for a complete analysis. This gives
us the theoretical significance of the modern period as an object of
study; it is the field in which we may hope to charm from human
history the secret of its rational movement, detect its logic, and win
a glimpse of a fragment of the pattern on a carpet, of which probably
much the greater part is still unwoven.

This Congress is suggestive in many ways, suggestive especially of
the distance the world has traveled since 1804 or since 1854. There
will be many more of its kind; but this is unique as the first. It is
not very bold to predict that historians of the distant future, in tracing
the growth of cooperation and tendencies to a federation of human
effort, which are one of the transformative influences now affecting
mankind, will record this Congress in which we are here met together
as a significant point in this particular stage of man's progress
toward his unknown destiny.

HISTORICAL SYNTHESIS

BY CHARLES W. COLBY

[Charles W. Colby, Kingsford Professor of History, McGill University, Montreal.
b. Stanstead, Quebec, 1867. A.B. McGill University, 1887; A.M. Harvard
University, 1889; Ph.D. ibid. 1890; D.C.L. (Hon.) Bishops College, 1904.
Author of Selections from the Sources of English History; also various articles
for The Nation, and for American Historical Review and English Historical
Review.]

WHEN Huxley declared that Spencer's idea of a tragedy was a
deduction killed by a fact, he minted a phrase which is not without
its application to history. The human mind, prone to spin theories
and to generalize from the exceptional case, stands ever .in need of
such a corrective as is supplied by the record of ancestral experience.
Thus it becomes the duty of the historian to go through life with
sling in hand and heart steeled to slay the false deduction which is
tyrannizing over mankind. Nothing equals the vitality of a lie save
the longevity of a legend, and as the deadly facts are sometimes slow
to disclose themselves a voluble deduction may for years or genera-
tions mislead even the thoughtful. The Hildebrandine scheme of
political philosophy which underlies the Dictatus Papae, the excom-
munications of Henry IV and the letter to William the Conqueror,
had its day and may still claim the support of a party; but for
most of us it must stand ultimately condemned by the weakness of
its historical basis. How often during the past century has the
groundwork of famous theories, whether political, social, theological,
or ethical, been modified, if not destroyed, by the solvent of historical
fact. On the 24th of April, 1793, Robespierre, drawing his inspiration
from a well-known source, exclaimed: "Kings, aristocrats, tyrants,
whosoever they may be, are slaves revolted against the sovereign
of the earth, which is the human race, and against the law-maker
of the universe, which is nature."1 If this sentiment strikes an
answering chord anywhere at the present day, it can hardly be in the
heart of an historian. Nor are the deductions against which historical
fact makes war confined to large ideas like Gregory VII 's theory of
Church and State, or the Jacobin doctrine of social origins. Take,
for example, the actual state of the Napoleonic legend wThich was
developed by the French radicals of 1820, and embellished for
current purposes under the July Monarchy. Lord Acton went so far
as to style Napoleon "the most splendid genius that has appeared
on earth," 2 but the Napoleon of the French radicals in 1820 was
a liberal who above all other things loved peace.

1 Orators of the French Revolution, ed. H. Morse Stephens, vol. n, p. 374.

2 English Historical Review, vol. n, p. 603.

154 MODERN HISTORY OF EUROPE

Under the circumstances we need feel little surprise when we
contemplate the amount of energy which modern historians have
devoted to the task of setting their predecessors right. One might
almost say that at the dawn of the nineteenth century the criminal
law of England required no more revision than did the best books
which were to be had on English history. Perhaps more mistakes
clustered around the Civil War and the Revolution than around any
other subjects, although, as Dr. Johnson observes of Voltaire and
Rousseau, it is difficult to settle the proportion of iniquity between
Smollett's account of the Revolution and Hume's allusions to the
medieval church. Apart from all larger attempts at construction,
the critics have had quite enough to do during the last hundred
years or so in correcting errors of detail. This kind of occupation
is not, and never will be, finished. It is an industry which goes on
for the most part quietly, though interrupted now and then by an
explosion. Investigators of the higher grade still aspire to set right
mistaken notions regarding the defenses at Hastings. The humble
beginner is content if he can detect a slip lurking beneath the guarded
utterances of Stubbs.

We all like to prove our points, and the more limited their scope
the keener seems the anxiety. Yet at times, and especially on inter-
national occasions like the present, one's thought is drawn away
from the task of rectifying details, and even from the nobler sport
of slaying unfounded deductions. According to a dictum of Professor
Dicey, " Democracy depends upon the importance attached to the
similarities, as surely as aristocracy depends upon the importance
attached to the differences, of human nature."1 Usually we are
intellectual aristocrats, thinking of the specialties which divide us
and spurring on the hobbies which bear us madly away in the most
divergent directions. Here we become democrats (not necessarily
red radicals but respectable whiggish democrats) bent on accent-
uating if only for a moment the things that draw us together. Well
would it be for one speaking on such a subject as mine if he could
produce from his pocket an eloquent and convincing philosophy of
history. When we pause a moment to draw breath, we can overhear
the candid comments of those who rate the value of historical studies
less highly than we do. I am not referring so much to the cynical
detractor like Walpole, with his gibe against historical credibility.
I have in mind, rather, the candid friend of philosophical tastes, who
is willing to admit that history would furnish a fine theme if only his-
torians could manage to get at the heart of their subject instead of
playing with superficial trivialities. Buckle, to whose taste for specu-
lation was added a vast amount of historical knowledge, has expressed
this view in a passage too hackneyed for further quotation; and it is
1 The Nation, vol. LXXV, p. 28.

HISTORICAL SYNTHESIS 155

the inveterate empiricism of historical writers that makes Emerson
cry out, " I am ashamed to see what a shallow village tale our so-
called history is."

The comments of an honest spectator are usually worth something,
but despite the present force of the reaction it seems agreed by
experts that subjective ideas should be kept in strict quarantine
and not permitted to infect the pure, annalistic record. At a recent
meeting of the American Historical Association which was held in
Philadelphia, Dr. James Sullivan read an excellent paper entitled,
"The Antecedentsvof the Declaration of Independence." Much that
he then said I still remember, but what impressed me most was the
following reference to the fundamental propositions of the Declara-
tion. "In the public mind of to-day," said Dr. Sullivan, "inalienable
rights are those things which we reserve for ourselves and deny to
our neighbors." And he proceeded to take this as a crucial instance,
illustrating the wide gulf which separates the scholarly world from
the general public. "As a matter of fact," he continued, "the world
of learning long ago abandoned the state-of-nature theory, with
all its corollaries of equality, inalienable rights, and others, but the
world at large still seems to be, in respect to such doctrines, back in
the eighteenth century." 1 These words were received by the audience
with evident appreciation, and one could not but feel a slight shock
of surprise at observing the mirth of American citizens (in Philadel-
phia of all places) when gentle persiflage was thus directed against
the preamble of the Declaration. If "inalienable rights" seemed
amusing to a congress of American historians meeting in Philadelphia,
I am sure that an international congress of historians meeting at St.
Louis would be equally amused to hear any one suggest that there
exists a basis upon which a philosophy of history can be founded.
Lowell once complained of the trouble he found in trying

" to raise anerithmon gelasma
With rhymes so hard-hunted they pant with the asthma."

No such difficulty need be encountered in starting the merriment
of historians. Mention, with apparent seriousness, "the philosophy
of history " and the thing is done. Herder, Fichte, Schelling, Schlegel.
Krause, and Hegel have disappeared completely from our ken since
the days of Ranke. "Mais ou sont les neiges d'antan?" If any
individual member of our craft really believes that the philosophy
of history is anything more than flatus vocis, he had better keep the
opinion to himself. Otherwise he may encounter the fate which
overtook Nominalists in the age of Roscellinus. But why discuss the
subject further? Did not one of the best known and most eminent
historians of this hemisphere recently crush a whole host of adversa-
ries when he said that sociology was simply our old foe the philosophy
1 Report of the American Historical Association for 190.?, vol. I, pp. 66-67.

156 MODERN HISTORY OF EUROPE

of history in disguise? Since international gatherings are designed
to promote peace and herald the golden year, one must refrain, in
speaking of historical synthesis, from all attempt to present an alleged
basis for a philosophy of history. What may be going on at this mo-
ment in the metaphysical section we cannot tell, but here the nearest
approach to philosophy which one dare make is to suggest that the
problem of synthesis is even more pressing than are the difficulties
which crowd in from the side of criticism. Should one be asked how
this subject is connected with the political history of modern Europe,
an answer might be found in the words a fortiori. What has to be said
regarding historical synthesis is of general application, bearing upon
the Greeks and Romans as well as upon the French Revolution
and the establishment of the German Empire. For the last four
centuries, however, the question grows increasingly complex and
important. The multiplication of data, nearness to the event,
patriotic prejudice, and other obvious causes combine to render this
problem most crucial of all in its relation to modern history.

Indicating a contrast between synthesis and criticism, I expressed
the opinion, a moment ago, that the demands made upon us by the
latter were on the whole the more urgent and exacting. In historical
research and composition so many elements are concerned that one's
attitude toward them must, perforce, be tinged by opportunism.
How indispensable critical processes are, we all understand, and from
the very fullness of this recognition the danger would seem to lie
in another direction. It was not always so. We have but to read the
controversy which arose over Middleton's Letter to Dr. Waterland,
followed by the controversy over the same author's Free Inquiry, if we
would carry ourselves back to days when the claims of criticism were
paramount. When we have examined Bishop Zachary Pearce's
answer to the Letter, and especially the passage on Josephus in his
Reply to the Defence, we are quite prepared for a passage like this in
John Jackson's rejoinder to the Free Inquiry : " In what I have
examined I have found nothing of real argument or solid literature;
but a great deal of very bad reasoning; and what is worse, gross
misrepresentations of facts; and a very uncandid and unmanly
treatment of learned, honest, and pious men, whom without a shadow
of evidence he has treated as enthusiasts, cheats, and forgers; but
whom their greatest and most inveterable enemies, Pagans, Jews,
and most infamous heretics could never convict of the least fraud,
deceit, or bad practice."1 Middleton died in 1750, but as late as
1829 the Quarterly Review was denouncing the "absurd and shallow
doctrines of Niebuhr " and attacking the translation of Thirlwall and
Hare in language which deserved the answer that Thirlwall gave it.
" By the bye," says the reviewer, "we think his last translators, two
1 Remarks on Dr. Middleton's Free Inquiry, London, 1749, p. 58.

HISTORICAL SYNTHESIS 157

clergymen of the Church of England, since they have exercised the
right of adding notes to Niebuhr's text whenever they thought they
had anything worth hearing to offer, might as well have remarked,
for the benefit of their young academical readers, on some of the
most offensive paragraphs which have appeared since the days of the
Philosophical Dictionary. But Niebuhr is, what Mr. Wordsworth
should not have called Voltaire, 'a pert, dull scoffer.' " 1

Refreshing our memories by an appeal to these and kindred
passages, we can sympathize with the pioneers who strove for
enlightenment in a time when criticism was equivalent to heresy.
That date, however, is long past, and at present it«may not be unwise
to consider whether the full triumph of critical and comparative
methods does not in its turn disclose fresh questions to be faced —
or rather old questions to be faced in the light of new conditions.
The controlling purpose, one may contend, under which data should
be chosen, combined, and presented, is no less a factor now than it
was in those long ages before the net of criticism had swept in every-
thing from Ranafer and Khafra to the Legend of Marcus Whitman
and the Literary Industries of H. H. Bancroft. More than two
generations have elapsed since Ranke began his career with the
History of the Romance and German Races ; the Ecole des Chartes
has been publishing its journal ever since 1839; it was in 1863 that
Droysen opened the ninth volume of the Historische Zeitschrift with
his paper on the "Elevation of History to the Rank of a Science";
and for those who cannot spend their youth in a seminary, the
manual of Bernheim or that of Langlois and Seignobos will furnish
instruction regarding the rules of the game as it is currently played.
The fruits of critical research are untold, or at least one could not
attempt to tell them, without lapsing into rhetoric. Yet criticism is
not everything here below, and utilitarian instinct at its strongest
urges the historian to do something with his facts after he has got
them.

In taking an abstract term like synthesis for the central point of
one's discourse, there is every opportunity to wander round in a fog
of words, losing one's self and being lost sight of by one's hearers.
From a desire to keep closely in touch with the concrete, I shall avoid
the use of metaphysical language and limit myself to a few remarks
upon the nceud vital of historical composition, namely, the person-
ality of the writer. And here what I mean to convey can best be
expressed through that familiar story of the artist's reply to a vacant
questioner. " Could you tell me, Mr. Opie, how you mix your colors? "
" With brains, Sir/' is the universal formula of retort to such queries,
whenever and wherever they may be asked. Sir James Mackintosh
said of Opie, that " had he turned his mind to the study of philosophy
1 Quarterly Review, vol. xxxix, pp. 8-9 (footnote).

158 MODERN HISTORY OF EUROPE

he would have been one of the first philosophers of the age," and
the above rejoinder lends color to the statement. When under the
auspices of the Greeks history entered upon the European phase of
its existence it had the character of a fine art, and perhaps some
profit can still be gained by recalling this fact. One kind of talent is
required to elicit the data; another kind of talent is required when the
story comes to be told, whether as plain narrative or with interpre-
tative comment. Fortunate is the man who is gifted in both direc-
tions, and though rare, he might be less rare if historians accorded
more attention to the synthetic part of their task. As Burke says
at the close of the JRe flections : "When the equipoise of the vessel in
which we sail may be endangered by overloading it upon one side,
we become desirous of carrying the small weight of our reasons to that
which may preserve its equipoise." In our day the idea of scientific
truth has received quite its fair share of emphasis, and we are not
likely to bring back those pseudo-Thucydidean flourishes of the
eighteenth century which provoke the sarcasms of Mr. Wylie. By
way of adjusting the equipoise, let us direct our notice to the his-
torian as a writer whose personality need not be effaced and whose
role has only been rendered the greater by the improved quality of
the materials which are now within his grasp.

However created, the impression seems prevalent in high quarters
that a writer of historical works must be deemed suspect if he permits
his text to become associated with the distinctive quality of his own
mind. By way of gloss upon this notion, two passages of very differ-
ent origin may be brought together. One day when Fustel de Cou-
langes was lecturing, his students broke in with applause. " Do not
applaud me," he said; "it is not I who address you; it is history
which speaks through me." * This anecdote, taken from an obituary
notice of Fustel by Gabriel Monod, illustrates the danger to which
the modern historian is exposed when he emphasizes overmuch the
scientific character of his subject. From what we know of Fustel's
disposition we must believe him to have uttered these words in the
most sober earnest. They were not a mere rhetorical flourish but an
outburst from the soul, showing that with all his personal modesty
he had come to consider his own doctrines a portion of absolute
truth. Fustel is not, perhaps, a perfect type of the scientific his-
torian, yet he looked upon himself as being a complete and faith-
ful devotee of science. "He had," says M. Monod, "a very lofty
idea of history and the duties of an historian. He believed that
history is a positive science, and that it is able to lead those who
study the text honestly and critically to a certitude of the most
scientific kind. He considered that those who have the honor of
working at this science should give themselves up to it with absolute
1 Revue Historiyue, vol. XLI, p. 278.

HISTORICAL SYNTHESIS 159

devotion and disinterestedness, not permitting political views or
the promptings of art to enter their thoughts and works."1 Here is
a case where a man of literary talent and imaginative temperament
tries to make himself a pure scientist by dint of erudition and hon-
esty. Fustel could not allow that the German invasion of the fifth
century had caused any organic changes in the life of Gaul. Writing
in the Revue des Deux Mondes, under the date 1872, he observes a
studied calmness of phrase, but beneath it we can see his scorn for
contemporary historians in Germany, who were equally scientific
in their pretensions with himself and equally tenacious of their
views. I am not trying to blame Fustel in the least or to conceal my
genuine admiration of his great talents. He was not, however, what
he deemed himself to be, the impassive mouthpiece of history,
and his wTork might have been even better than it is had he taken
his functions less seriously.

Beside the rebuke of Fustel to his class let us place an utterance
which was made only a few weeks ago by a very eminent thinker and
man of action, Mr. John Morley. In this case you will observe that
there is no express mention of history, but we shall not need to hunt
long before finding the application. During the past summer the
University of Edinburgh conferred upon Mr. Morley an honorary
degree, and as such gifts are encumbered by the servitude of a speech,
he made the required remarks. Toward the close of his address he
struck the aspiring note, without which an utterance from his lips
would lack its wonted character. As his selected epigraph he urged
the undergraduates before him to cultivate that liberty of mind
which he called the mark of distinction between the educated and
the half-educated man. "I have," he continued, "a great friend
whose happy fortune it has been to know some of the most prominent
and leading men of his time, and he assures me that of those great
and prominent men he does not think he could count more than
four who are or were really lovers of truth. Of course we are not
complimenting ourselves too much when we say that we are all
lovers of truth in a sense; but by lovers of truth I mean something
more than the sense in which we are all lovers of truth. I mean men
who are free from the imprisonment of formula, tolerably detached
from the affairs of party in Church and State, with width of appre-
hension, power of comprehension, which after all is the true aim
of culture." 3 Now the love of truth as thus defined is or should be
the badge of the historian. Unfortunately it seems to be rare, since
Mr. Morley 7s friend has discovered it in four cases only among the
distinguished men of his generation, and he does not expressly state
that any one of the favored few was an historian.

1 Revue Histarique, vol. XLI, p. 278,

2 The Times, July 25, 1904.

160 MODERN HISTORY OF EUROPE

The general inference which I would seek to draw from the above
passages might run somewhat in this wise. The truth-loving and other
qualities necessary for the equipment of an ideal scientific historian
are extremely rare; so rare, indeed, that most of those who, like
Fustel, consider themselves the living voices of historical verity
are self-deceived. While they keep within the field of pure chrono-
logy all may be well, but when following the instinct of an open
mind they would mount to those higher levels where abide the souls
of great men, the seeds of great movements, and the mysteries of
racial development, they lose contact with what is certain and
enter a region where the sole criterion is probability. If one feels
this in dealing with individuals, he will feel it still more in dealing
with movements or races: and that the careful historian feels it in
dealing with individuals may be inferred from Mr. Rose's words con-
cerning Napoleon's policy in 1805. "The question," he says, "has
often been asked whether Napoleon seriously intended the invasion
of England "; and after a long discussion of this point, he concludes:
" But indeed Napoleon is often unfathomable. Herein lies much of
the charm of Napoleonic studies. He is at once the Achilles, the
Mercury, and the Proteus of the modern world. The ease with which
his mind grasped all problems and suddenly concentrated its force
on some new plan may well perplex posterity as it dazed his con-
temporaries." * Should the best opinion of scholars ever decide that
history means chronology alone, — that is, the determination of
particular and isolated facts, — the critical, scientific method might
well succeed in dominating this region, unchallenged and secure.
Nor would it be a petty realm. But hitherto, in practice if not by
exact definition, history has embraced the manifold relations and
interdependencies of these facts, some apparently simple but many
conjectural and obscure. Conceiving of history under this form, one
is emboldened to hazard the opinion that in the synthetic process the
writer's personality should not be obliterated, but that it should be
present, frankly revealed where necessary, and not covered up from
any nervous dread of deposing history from her scientific throne.
Then a man like Fustel, scholar and artist in one, would refrain
from saying (at any rate if his subject were the origins of feudalism),
"It is history which speaks through me"; but he might let it be
known in some way that the text of his work was simply an inter-
pretation of what in his judgment and to the best of his knowledge
were the essential facts. After one has pushed thoroughness to its
limits, exhausted the material available to him, and brought his
matured thought to bear upon the results, he must leave the finished
product, whether scientific or not, upon the knees of the gods —
anglice to the mercy of his severest critic, the lapse of time.
1 The Life of Napokon, by J. H. Rose, vol. I, p. 466.

HISTORICAL SYNTHESIS 161

Have any histories yet been written, apart from works similar to
L'Art de Verifier les Dates, which do not contain a distinct deliverance
on points where there is room for difference of opinion. It has been
said of Ranke that he had the disinterestedness of the dead, and
regarding the nature of his standards there can be no manner of
doubt. Just before writing this passage I opened the first volume of
his History of England at random and came upon the following allu-
sion to the Casket Letters. " Who does not know the sonnets and
the love-intoxicated letters she is believed to have addressed to him?
I would not say that every word of the latter is genuine; through
the several translations — from the French original (which is lost)
into the Scotch idiom, from this into Latin, and then back into
French as we now have them — they may have suffered much
alteration; we have no right to lay stress on every expression and
interpret it by the light of later events; but in the main they are
without doubt genuine; they contain circumstances which no one
else could then know and which have since been proved to be true;
no human being could have invented them." Here the judicial tone
is maintained, and we can see the historian endeavoring dispassion-
ately to state the truth about an intricate and difficult case. Yet
were Ranke writing on the Casket Letters at this moment and in the
light of the fullest knowledge which can be had, one may doubt
whether he would say so positively, "No human being could have
invented them."1 I am not trying to exonerate the Queen or to
vindicate the sentiments of the Revue des Questions Historiques: but
unless I am mistaken a jury of Scottish experts would return a verdict
of Not Proven, while Mr. R. S. Rait goes so far as to say in reviewing
Mr. Lang's Mystery of Mary Stuart for the English Historical Review :
"The Mystery of Mary Stuart remains a mystery. There is a doubt,
and while the question remains in suspense the Queen should have
the benefit of it."

Were it necessary one might collect a large number of obiter dicta
from the pages of Ranke, including some passages which assuredly
will not stand the test of time. And if the master does not always
reach the goal he aimed at, what shall be said of others? At this
time of day it is either banal or insulting to praise the erudition of
Germany, and in history the great objective of German scholarship
is scientific accuracy. Yet virtue itself 'scapes not calumnious
strokes, and Droysen, whose essay on the elevation of history to the
rank of a science is justly famous, incurs along with others the severe
censure of MM. Langlois and Seignobos. In the chapter on exposition
which these strict exponents of historical science have written
conjointly, occurs an unsparing castigation of the careless vulgarizer.
"On the other hand," the text continues, "men whose information

1 History of England, English translation. Clarendon Press, 1875, vol. r, p. 273.

162 MODERN HISTORY OF EUROPE

is all that could be desired, whose monographs intended for special-
ists are full of merit, sometimes show themselves capable, when they
write for the public, of grave offenses against scientific method.
The Germans are habitual offenders: consider Mommsen, Droysen,
Curtius, and Lamprecht. The reason is that these authors, when they
address the public, wish to produce an effect upon it. Their desire to
make a strong impression leads them to a certain relaxation of sci-
entific rigor, and to the old rejected habits of ancient historiography.
These men, scrupulous and minute as they are when they are engaged
in establishing details, abandon themselves, in their exposition of
general questions, to their natural impulses like the common run
of men. They take sides, they censure, they extol; they color, they
embellish; they allow themselves to be influenced by personal,
patriotic, moral, or metaphysical considerations. And over and
above all this they apply themselves, with their several degrees of
talent, to the task of producing works of art; in this endeavor those
who have no talent make themselves ridiculous, and the talent of
those who have any is spoilt by their preoccupation with the effect
they wish to produce." l

I quote the foregoing strictures, not because they have the inter-
est which belongs to writings of a slightly polemical character, but
because the passage makes a sharp distinction between monographs
well done and popular histories badly done. The monographs are
concerned chiefly with the establishment of particular facts. The
popular treatise is designed to give order, connection, and some de-
gree, at least, of meaning to those facts. Perhaps, as MM. Langlois
and Seignobos suggest, the Germans are less successful in the latter
than in the former field; but even allowing that their performance is
open to criticism on the ground of personal and patriotic prejudice,
they, like other human beings, cannot exclude convictions and
even opinions from histories of this type. There is reason in every-
thing. If a writer, however learned, suffers his judgment to be
warped by prejudice of any kind, he will be found out and his learn-
ing will not save him. Nevertheless, the historian whose views are
something more than prejudices will carry conviction, if his facts
are undeniable and his argument seems sound. Nor is this result
less likely to be secured in the field of general history than in that
of monograph. In his autobiography Darwin calls the Origin of
Species one long argument, and on analysis it may prove that
many a book is good history though decidedly tinged with the
author's opinions.

MM. Langlois and Seignobos direct their attention to the short-
comings of German historians, but the Histoire Generate itself is not
without touches which reveal the presence of personal feeling or
1 Introduction to the Study of History (English translation), pp. 313-314.

HISTORICAL SYNTHESIS 163

opinion. To begin with, a certain predilection for the interests of
France may be observed in the scale of the work, and though the
general tone is excellent, one now and then sees national pride welling
up within the heart of the historian. For example, M. Denis, at the
close of his chapter on the Thirty Years' War, introduces a sentence
or two which, however natural and justifiable, must impress the
reader as being slightly tinged with purple. "In achieving the ruin
of imperial authority, the Peace of Westphalia completed the work
of Luther and marked the end of a constitutional development
which from the fall of the Hohenstaufen tended to transform Germany
into a princely oligarchy, and it also prepared for the revival of
German nationality which little by little was to group itself around
the princes. From the congress of Miinster and Osnabriick modern
Germany really dates. As at the Capetian epoch, as at the Revolu-
tion, the glory of France coincided with the distinct advance of
humanity." * Here is the note of patriotism. The note of dogmatism
is struck by M. Seignobos himself at the close of his text-book on
the political history of modern Europe. " The revolution of 1830 was
the work of a group of obscure republicans, aided by the blunders of
Charles X. The revolution of 1848 was the work of certain demo-
cratic agitators, aided by Louis Philippe's sudden lack of nerve. The
war of 1870 was the personal work of Bismarck, prepared by Napo-
leon Ill's personal policy. For these three unforeseen facts no general
cause can be discerned in the intellectual, economic, or political con-
dition of Europe. It was three accidents that determined the political
evolution of modern Europe." 2 Without breaking a lance over this
particular utterance, it may be pointed out that all such epigrammatic
statements about complicated phenomena represent pure opinion,
and depend for their value not upon their consonance with absolute
truth but upon their inherent power to persuade.

Among English historians Stubbs and Gardiner have the brightest
reputation for that kind of impartiality which shines out through
the course of a monumental work. Macaulay, Carlyle, Green, and
Froude, whatever their other merits, cannot be brought into the
comparison at this point; and even though we admit Freeman's
character to have survived the onslaughts of Mr. Round, the Nor-
man Conquest can hardly, in respect to form, be taken as a model
of scientific history. Some people may deem Stubbs dull, but Pro-
fessor Maitland has told how he first picked up the Constitutional
History in a London club and read it because he found it interesting.3

1 Histoire Generate, vol. v, p. 582.

2 Political History of Europe since IS 14 (translated by Macvane), p. 847.

3 English Historical Review, vol. xvi, p. 422.

Another passage in Maitland's appreciation of Stubbs (English Historical
Review, vol. xvi, pp. 417-426) may be quoted as cognate to the main motive of
this discussion. "At least there should, so it seems to me, be no doubt about the
award that should be made in this journal. The greatness of historians can be

164 MODERN HISTORY OF EUROPE

Probably most of us who are here will agree to the justice of this
opinion; and to me it seems that the book is attractive not merely
because the author is so careful to refrain from making general
statements on insufficient grounds, but because there is so much of
the wise and temperate man in the appreciation of characters and
national tendencies. One would not look in vain for passages where
his authority might be called in question, particularly before the
Conquest and after the middle of the thirteenth century. The es-
sential thing is that his judgments cannot be dissociated from his
temperament and principles, especially where a moral issue arises.
The concluding pages of his third volume, with their copious use of
analogy, illustration, and tempered eloquence, bring him to the con-
fines of rhetoric, nor does he shrink here or in other writings from
letting us see what he really thinks of Puritanism.

As for Gardiner, he is crowned with the bright laurel that belongs
to one who has treated fearlessly, candidly, and with unbounded
wealth of learning the most controverted period of English history.
Still he is by no means a stranger to the methods of the law court
and the language of the pulpit. His answer to Father Gerard in the
matter of Gunpowder Plot is an argument which, unjustly I think,
has been taxed with special pleading} the conclusion to his little
volume on the Thirty Years' War is aglow with the fire of Macaulay;
and he does not hesitate to incorporate in his History of England
an outburst like this, which is prompted by the undisguised con-
victions of a Protestant: "The world was to learn that there were
men who were ready to suffer and to die, if need be, on behalf of
principles more true, and of an order more fruitful of a good and
noble life than anything which Ferdinand and Maximilian had found
it possible to conceive. From the study of Bacon, from the parsonage
of George Herbert, from the pulpit of Baxter, from the prison of
Eliot, a light was to break forth, splendid in its multiplicity of color
and of brilliancy, which would teach the world to shrink from anarchy
and despotism alike, and to intrust the treasure of its moral and
intellectual progress to ordered liberty."1 In a letter to Freeman,
J. R. Green expresses admiration of Gardiner, and can quite under-
stand why, striving as he does to banish "loose talk," he should
look askance at the influence which the Short History might have in

measured along many different standards, and far he it from any one to speak
slightingly of the man who, without adding to what was known by the learned,
has charmed and delighted and instructed large masses of men. His place may
be high, and even the highest, provided that he be honest and reasonably indus-
trious in the search for truth. But such a man will find his reward in many
places. Here we have to think first of the augmentation of knowledge — the
direct augmentation which takes place when the historian discovers and publishes
what has not been known, and the indirect augmentation which takes place
when his doings and his method have become a model and an example for other
scholars. And here Dr. Stubbs surely stood supreme."
1 History of England, vol. v, p. 169.

HISTORICAL SYNTHESIS 165

bringing it back again.1 But for "loose talk," interpreting the phrase
to mean picturesque and rhetorical language, there surely is nothing
in Green which goes beyond this.

Whatever scoffers may urge to the contrary, history has one
thing in common with truth, since both are extremely polygonal;
and if, as the wizard sang to Bellicent, " truth is this to me and that
to thee," the day is probably long hence when our conception of the
summum bonum in history will be reduced to the dead level of same-
ness. Had Leibnitz carried his brilliant project a little farther
and taught mankind to think in symbols instead of words, he wxnild
have rendered history a greater service than he did by writing the
Annals of the House of Brunswick. Then we should not waste time
over definitions and beat the air in the hope of establishing a useful
conclusion. Professor Flint is writing a history of the philosophies
of history. His task would have been greater still had he called his
work a history of the conceptions of history, for many conceptions
worth taking note of never crystallized into the polished diamond of
a philosophy. Basing our forecast of the future upon the experience
of the past, may we not surmise that conceptions of history will be
modified in each generation by the expanding consciousness of
mankind? At present many of the ablest and most learned historians
restrict their efforts to the determination of facts by scientific pro-
cess and deem it futile to attempt more. Doubtless this contention
represents an extremely important point of view. It only remains
to ask whether the vista towards coordination is finally and irre-
vocably closed.

Not long ago Professor Fling, in a thoughtful paper on historical
synthesis, discussed the relationship of history and science as it has
appeared to writers like Droysen, Rhomberg, Lamprecht, Rickert,
Miinsterberg, and Xenopol. His own deliverance in the matter is
supported by considerations regarding the logic of the historical
concept, and may be stated briefly as follows: "If historians and
sociologists can agree that both deal with the past of society, but
from different points of view; that one looks at it from the point of
view of a unique evolution, and the other from the point of view of
general facts and laws; that as their ends differ, their methods must
differ; that there would be no confusion if we retained the term
history for the older point of view and employed the term sociology
for the later — if these fundamental points could be agreed upon,
the debate would be over." Such is his general conclusion, which is
attended also by a corollary: "As long as men seek for knowledge
of the unique evolution of their social past, just so long will the
historical method be justifiable and the historical synthesis, the
synthesis of Thucydides, of Tacitus, of Gibbon, and of Ranke, will
1 Letters of John Richard Green, edited by Leslie Stephen, p. 425.

166 MODERN HISTORY OF EUROPE

be scientific, although it will never be the synthesis of the natural
sciences." l

In echoing Professor Fling's sentiments concerning the worth of
the historical classics, I would not for a moment assume that there is
in any quarter a disposition to disparage the best work done before
1825 or to deny that it has high merit of some kind. Nor would I
approach this subject in a spirit the most faintly resembling con-
troversy. Frankly speaking, I doubt whether academic utterances
as to what history is or should be, help us very far forward. We all
understand the fundamental value of truthful information, and
prize the processes by which alone it can be gained. Likewise we
prefer a thoughtful presentation of facts to a shallow one, and good
writing to bad. Ranke, with his wonted saneness, has said nearly all
there is to say. Referring to the difficulty of writing a continuous
national history, he observes: "Who could apply critical research,
such as the progress of study now renders necessary, to the mass
of materials already collected, without being lost in its immensity?
Who again could possess the vivid susceptibility requisite for doing
justice to the several epochs, for appreciating the actions, the modes
of thought, and the moral standard of each of them, and for under-
standing their relations to universal history? We must be content in
this department as in others if we can but approximate the ideal we
set up. The best written histories will be accounted the best." 2

Is it not fair to describe the state of the case under some such
form as this? Many have the kind of capacity which is needed to
collect and sift historical facts. On the other hand, the number of
those who can turn these facts to any use above mere compilation is
relatively small. The conditions are the same elsewhere. Mr. Bryce,
for one, has remarked and commented upon them. " Knowledge
fossilized in a concrete invention," he says, "or even in a mathemat-
ical formula, is a sort of tool ready to every hand. But a method,
though serviceable to everybody, becomes eminently fruitful only
when wielded by the same kind of original genius as that which made
discoveries by the less perfect methods of older days. This is appar-
ent even in inquiries which seem to reside chiefly in collection and
computation. Everybody tries nowadays to use statistics. But the
people who by means of statistics can throw really fresh and brilliant
light on a problem are as few as ever they were." 3

For few is it reserved to write great histories, whether these be
labeled works of science, or of art, or of sociology. And yet one cannot
think that study of the past bears its best fruit save where the student
has a habit of mind which impels him to consider connections as

1 American Historical Renew, vol. ix, pp. 20-22.

J History of England. English translation (Clarendon Press), vol. i, pp. v, vi.

8 Helmolt's History of the World (English translation), vol. i, p. xlix.

HISTORICAL SYNTHESIS 167

well as events. I imagine that we are all skeptical enough about
political prophecy and the formulation of historical laws. Fortunately
we can have a synthesis which will illuminate portions of the past
and stimulate our thought, without the introduction of scholastic
language, the wrangle over definitions, and the restless desire to reach
some goal. A few years ago a new historical periodical was being
started, and I asked one of its promoters (a scholar whose name
is familiar to all present) if the projected magazine would resemble
another which I named. "Oh dear, no!" he replied. "No one
reads that. We want ours to sell on the news-stands." This was
a hopeful aspiration — for a quarterly! Whether or not it has been
gratified may possibly be learned by inquiry at the Carnegie Institu-
tion. MM. Langlois and Seignobos condemn German historians for
trying to impress the public, but what kind of writing comes closer
to the educated layman than history, with the exception of pure
literature? Here is a perpetual incentive to synthetic effort, and
if scholars permit the public to suffer at the hands of second-rate
vulgarizers, it may be at the double cost to themselves of duty
neglected and faculty untrained.

There is, of course, no recipe for preparing the historical master-
piece which becomes a symbol of national erudition or a glory of
the national literature; but in the body of this paper I have tried
to emphasize the essential ingredient, namely, the genius of the
author. The man who thinks himself so complete a master of his-
torical synthesis that when he opens his lips he is declaring a verity
of science, would seem, however learned and gifted, to be working on
a false theory. The best historians when they coordinate make
errors of omission, statement, judgment, taste, and style, — being
human and using the fluid vehicle of human thought. Yet is this
a reason why one should attempt to efface himself or keep back his
mature opinions, in the hope that by so doing he shall more nearly
approximate absolute truth? This query is not intended to furnish
a loophole for the extenuation of prejudice or the encouragement of
" loose talk." It is suggested by the practice of historians like Ranke,
Stubbs, and Gardiner, whose identity can be discerned in their works
and whose works derive value from the presence of that identity. It
is the purest truism that the historical point of view shifts from age
to age, and that as regards innumerable questions relating to the
past it may be said quot homines tot sententiae. None the less each
generation demands its own synthesis and exacts the best attainable.
One should read what Merlin says to Vivien about fame if he feels
grieved at knowing how certainly his book will perish unless pre-
served by the force of its ideas or the beauty of its form. Still it may
be serviceable while it lasts.

In no department of history is the problem of synthesis more

168 MODERN HISTORY OF EUROPE

urgent than in that of modern politics, where the data are over-
whelming and one's judgment is apt to be influenced either by
patriotic instinct or social theory.

A single word in conclusion. Lord Acton praises robust impar-
tiality, and I am following a famous precedent of Newman when I
state the case against myself as strongly as possible. The one topic
which runs through the foregoing remarks is the personal element in
historical synthesis, together with the bearing of the author's per-
sonality upon the scientific character of his work. Professor Bury
said last year at Cambridge: "When the ultimate history of Ger-
many in the nineteenth century comes to be written, it will differ
widely from Treitschke's work, but that brilliant book can never
cease to be a characteristic document of its epoch."1 One goes
considerably past this point in suggesting that our sense of histor-
ical truth may be deepened by familiarity with Michelet, Quinet,
Macaulay, and Green. I hesitate only at the name of Froude.
1 The Science of History, p. 34.

SECTION E- HISTORY OF AMERICA

SECTION E- HISTORY OF AMERICA

(Hall 1, September 24, 10 a. TO.)

CHAIRMAN: DR. JAMES SCHOULER, Boston.

SPEAKERS: PROFESSOR EDWARD G. BOURNE, Yale University.

PROFESSOR FREDERIC J. TURNER, University of Wisconsin.
SECRETARY: PROFESSOR EVARTS B. GREENE, University of Illinois.

THE Section of History of America was presided over by Dr. James
Schouler, of Boston, who gave an interesting opening address, in
which the conditions under which the early settlement of the Miss-
issippi Valley took place, and the growth of the two young cities of
New Orleans and St. Louis through the colonial and ante-bellum
struggles, was contrasted with present conditions, where the modern
St. Louis, the solid and substantial municipality, ranking among the
foremost of the cities of the New World, gathered within its borders
visitors and scholars from every nation in the world. The Chairman
then commented upon the influence of the French in the Mississippi
Valley and the changes which followed the purchase of the Louisiana
territory by the United States. " This vast Louisiana annexation, so
significant for our high mission on this continent, came suddenly
and unlocked for, like the New World's discovery by Columbus three
centuries or more earlier. It did not come as the gradual fruition of
ideas and experience, like our Revolution, our Monroe Doctrine, or
the great civil conflict of 1861. To a federo-national Union, but
lately put in practical operation under its constitutional scheme of
government, and content with its existing domain, it was like the
unexpected lifting of a curtain which disclosed new possessions
toward the Rocky Mountains wholly unlocked for. To a young and
aspiring people all this came as a revelation, the harbinger of a new
and grander destiny." Concluding, the speaker paid an eloquent
tribute to Napoleon, Marbois, Livingston, Monroe, and Jefferson, the
great actors in the international drama.

THE RELATION OF AMERICAN HISTORY TO OTHER
FIELDS OF HISTORICAL STUDY

BY EDWARD GAYLORD BOURNE

[Edward Gaylord Bourne, Professor of History, Yale University, since 1895. b.
June 24, 1860, Strykersville, New York. B.A. Yale, 1883; Ph.D. ibid., 1892.
Lecturer on Political Science and Instructor in History, Yale University,
1886-88; Instructor in History, Adelbert College, 1888-90; Professor of

History, ibid. 1890-95; Professor of History, Yale University, 1895 .

Member of Council of American Historical Association; Member of American
Antiquarian Society; Corresponding Member of the Massachusetts Historical
Society. Author of History of the Surplus Revenue of 1837; Essays in Histor-
ical Criticism; Spain in America; Historical Introduction to " The Philippine
Islands"; Editor of Narratives of Hernando deSoto; Voyages and Explora-
tion* of Champlain.]

LADIES AND GENTLEMEN, — The subject assigned for the second
paper this morning is the Relation of American History to Other
Fields of Historical Study, and the officers of the Congress had most
appropriately selected Professor Hart of Harvard University to
discuss this theme. That he has found it impracticable to be here
owing to a pressure of other work is to be regretted for many reasons.
It was, indeed, most fitting that the institution which was the pioneer
in this country in developing systematic historical studies as a part
of its curriculum, and which is still the leader in that work . should
be represented at this gathering; nor was it less suitable that the
man to represent Harvard and the study of American history should
be the one upon whom as an organizer of historical labors has fallen
the mantle of Justin Winsor.

In our common usage, the content of the term American history
embraces the history of the discovery of the New World, a most
cursory glance at the Spanish Conquest, the colonization of the
eastern coast by the English, the American Revolution, and the
political history of the United States. Such a restriction of meaning
is a natural outgrowth of circumstances in this country.

In this place, however, near the centre of the continent first
explored by the Spaniards, on the great river discovered by De Soto,
and not so very many hours' ride from a point reached by Coronado
from the shores of the Pacific over three hundred and sixty years
ago, so narrow a construction of American history may rightly give
way to one which assigns to the Spanish American world a position
more truly in accord with its real historical significance in the history
of the race. It is the relation of American history in this broader
sense, the history of the activities and achievements of Europeans
in the New World, to the history of Europe and the history of the
United States, to which I invite your attention.

RELATIONS OF AMERICAN HISTORY 173

In reflecting upon this subject, my thoughts have grouped them-
selves around four general inquiries : What should be the attitude of
the student of European history to American history? what does
American history contribute to the interpretation of European
history ? in what ways has America affected the development of
European life? and, lastly, what advantages may be derived in the
United States and in Europe from a more thorough investigation and
a more general study of the history of Spanish America?

In regard to the first part of my subject, the proper attitude of
students of European history toward American history, I wish to
urge a more general recognition of American history as an integral
part of the history of the Western European peoples; in other words,
that the history of Spain, France, and England should embrace the
history of the Spanish, French, and English communities in the New
World as a natural and essential part of the whole and not as a mere
episode that may be neglected. In the study and writing of English
history this point of view has been more adequately realized than
in the case of France and Spain. The considerations that would be
urged to prove the essential unity of the history of the English on
both sides of the sea are familiar to all students, and need not be
recapitulated. The case of France I shall pass by, in order to illustrate
that of Spain and Spanish America more fully.

It is a not uncommon experience, although notable exceptions
exist, to find in narrative histories of Spain her interests in the New
World treated incidentally, if at all, rather than regarded as an in-
tegral element of profound importance in the national life. Among
recent examples of this procedure, one will suffice for illustration.
In Martin Hume's Spain, its Greatness and Decay, in the Cambridge
Historical Series, there are in the period 1555-1788, covered by Major
Hume's part of the work, not two pages devoted to the Spanish pos-
sessions beyond the sea. Such a narrow, territorial view is devoid
of any philosophical perspective, and is a veritable impoverishment
of history. In the light of general history, the Spanish conquest of
America is the greatest, the most far-reaching in its consequences,
of all the achievements in the life of the nation. It is the single event
in Spanish history that made Spain a world power, and raised her for
a time to a place beside Rome as the mistress of a world and the
source of the moral, religious, and intellectual culture of a continent.
To write the history of Spain and to leave out the history of Spanish
America is like writing the history of Rome and confining one's
view to the Italian peninsula. The power of Spain has lapsed and
most of her former over-sea possessions are independent states, but
whatever becomes of her relative position in Europe, her great con-
tribution to the world's history is certain to rise in historical import-
ance with the passage of time.

174 HISTORY OF AMERICA

I am aware ¥that these assertions will surprise some and perhaps
be dismissed by others as extravagant. I propose, however, to elab-
orate them somewhat, to bring home perhaps more effectively my
point of the essential oneness of American and Western European
history.

What, in fact, did Spain attempt in the New World and what did
she accomplish? She undertook the magnificent if impossible task
of lifting a whole race numbering millions into the sphere of European
thought, life, and religion. Beside such an enterprise the continental
wars of Spain become struggles of transitory interest. But I am
reminded that she failed. Such is the ready verdict that is pro-
nounced in accordance with prevalent opinion. But even if the
attempt was in some degree a failure, it was a failure after the
fashion of the failure of Alexander the Great to establish a per-
manent Asiatic Empire, a failure that has left an ineffaceable
impress on succeeding ages.

Yet the conception was grand, and the effort to realize it called
forth the best that was in the men who labored either consciously or
unconsciously for its accomplishment. Like all great events in human
history it has its dark sides, and unfortunately these dark sides,
through the influence of national jealousy and religious prejudice,
have commonly been thrust into the foreground by non-Spanish
writers.

The great permanent fact remains, however, after all qualifica-
tions, that during the colonial period the language, the religion, the
culture, and the political institutions of Castile were transplanted
over an area twenty times as great as that of the parent state. That
this culture and religion seem to the English Protestant inferior to
his own is natural; but while that opinion accounts for some of the
prevalent disparagement of the work of Spain in America, its truth
or falsity is not relevant to the present question. The essential
point is that, outside of the fields of art and literature, the great
contributions that Spain made to human progress in the sixteenth
and seventeenth centuries were made in America. In such contri-
butions to the stock of knowledge as are derived from observation
in distinction from those obtained by speculative thought, she far
surpassed France and England. Immense additions to geography,
to linguistics, to anthropology, flowed from the activities of her
explorers and scholars. Nor were the additions to the national
literature that took their rise in the New World slight accessions
to the general body of literature informed with the spirit of heroic
action. The dispatches of Cortes, the True History of Bernal Diaz,
may fairly claim consideration beside Caesar's Commentaries. Nor
can one read the story of De Soto's march, as told by the Gentlemen
of Elvas or Rodrigo Ranjel in the pages of Oviedo, without continually

RELATIONS OF AMERICAN HISTORY 175

recalling the classic narrative of the retreat of the ten thousand
Greeks from Cunaxa to the Euxine.

Enough has been said, perhaps, to raise a presumption for regard-
ing the history of Spanish America as an integral part of the history
of Spain, but its importance for the student of Spanish history does
not end here. The work of Spain in the New World, defective as it
was and adulterated with selfish aims, offered an extraordinary field
for the display of national and individual character. The modern
world can have little sympathy with the controlling objects of Span-
ish policy in European politics in the second half of the sixteenth
century. Philip II in Spain seems to be putting forth herculean
efforts to stay human progress. In the Indies he shows a fairer
figure. The colonial legislation of his reign, whatever its defects,
reveals a profound and humane interest in the civilization of his
over-sea dominions. It was one thing to try to confine Europe to
the intellectual bounds of the Middle Ages and quite another to raise
primitive America to that level. The long arm of the king was
stretched out to protect the weak and the helpless from oppression
and from error. It did not always do it, but the honor of the effort
should not be withheld. The contrast between Philip II as ruler
of the Netherlands and the Philip II who was lord of the Indies
may be paralleled by the contrast between the Duke of Alva and
Hernando Cortes. The conqueror of Mexico is the more universally
known of the two, but the name of no Spanish general of the six-
teenth century is more familiar in England and America than that of
Alva. That Alva should be popularly considered as a type of Spanish
character, and that he should occupy a larger place in histories of
the Spanish people than Cortes, will seem unfortunate, and unjust
in exact proportion as the varied greatness of Cortes 's career is
appreciated. How one-sided, then, is a national history which finds
no adequate recognition for the nation's greatest achievements just
because the field of their accomplishment was beyond the sea!

If these considerations in regard to the history of Spain and of
Spanish America are well taken, the essential oneness of American
and Western European history may be granted at least the status of
a fair presumption, and I may pass to the next line of inquiry, What
does American history contribute to the interpretation of European
history?

The occupation of the New World by the divergent methods of
Spanish and English colonial policy repeated processes of profound
importance in the history of civilization in regard to which we have
comparatively little evidence. The migration of the English to
America was like the diffusion of the Greeks to their colonies, and not
a few of the distinctive features of American life and temperament
that have been noted by foreign observers were equally characteristic

176 HISTORY OF AMERICA

of the Greek colonial societies in Sicily and Italy: the pride in big
things; the fondness for the florid in literature, art, and oratory; the
absorption in material interests; the self-confidence and the boast-
fulness.

The new conditions facing these English on the frontiers of their
settlements, in the conquest from nature of a home for civilized
man, compelled a readjustment of life to its surroundings, a simple
and elastic organization of society in which the earlier life of Europe
was lived over again. As time went on, the frontier was pushed
further out, and in the older settlements society became more com-
plex and conventional, approaching the stability of the mother coun-
try. The thought is a familiar one that on the frontier we have been
able to recover the conditions of colonial history, and in recovering
these conditions breathe again its atmosphere. America, then, has
offered the student the singular opportunity of observing successive
periods of historical and social development existing almost side by
side, so that one could lift the veil of the past by going west. This
thought, which has been so richly developed and illustrated by
Professor Turner,1 was first fully realized, so far as I know, by that
acute Frenchman Talleyrand when sojourning in America. I shall
take the liberty to quote his observations, on the chance of con-
tributing to the history of one of the most fertile and instructive
contributions ever made to the interpretation of American history.
In his memoir on The Commercial Relations of the United States with
England, read before the Academy of Moral and Political Sciences,
March 25, 1797, he says:

" Let us look at these populous cities, full of Englishmen, Germans,
Irishmen, and Dutchmen, and also of the native inhabitants; these
remote hamlets, so far from one another; these vast untilled stretches
of country, traversed rather than lived in by men who have no settled
home; what common tie is there to bind together what is so unlike?
It is a novel sight for the traveler who, starting from a leading town
where the social order is matured and settled, passes over in succes-
sion all the stages of civilization and industry as they descend until
in a very few days he comes to the crude and shapeless cabin built
of freshly felled trees. Such a journey is a kind of practical analysis
and living demonstration of the growth of peoples and of states. One
starts from a highly complex total and reaches the simplest elements.
Day by day one after another of those inventions which our multiply-
ing wants have made necessary disappears, and one seems to be
traveling backward in the history of the progress of the human
mind."2

1 In his Significance of the Frontier in American History, State Historical Soci-
ety of Wisconsin, 1894, and other papers.

2 Memoir e sur les relations commer 'dales des Etats-Unis arec I'Angleterre; Me-

RELATIONS OF AMERICAN HISTORY 177

Other ways in which in American history the processes of the re-
mote past have been reproduced can be studied in the history of
Spanish America, where the conquest of organized societies by alien
invaders and the bringing in of a new civilization help us to visu-
alize the process by which Africa became Roman or Syria Greek.
Still again the Spanish missions, which from California to Paraguay
pushed out among the wild Indians and prepared them for civilized
life, will help us to see more clearly the processes by which Christ-
ianity made its way slowly into the recesses of Germanic and Sla-
vonic heathenism.

There is still another way in which the American colonial com-
munities offer instruction to the student of European history. By
their detachment from the main currents of progress they formed,
as it were, eddies in which were preserved, still in vigorous life, much
that had quite disappeared in more progressive centres, and in this
respect they may be said to serve as a kind of historical museum.

The rigorous sifting of emigration from Spain and its prohibition
from other countries, coupled with a close censorship of the press,
preserved in Spanish America relatively undisturbed the thought,
the life, and the manners of Spain just as she emerged from the
Middle Ages. Nearly forty years after Luther posted his theses the
name Lutheran conveyed no meaning to the people of Mexico. The
first auto da fe in that city in 1556 aroused the greatest curiosity,
and the English merchant Tomson reported that "there were that
came one hundredth mile off, to see the said Auto (as they call it),
for that there were never none before, that had done the like in the
said country, nor could not tell what Lutherans were, nor what it
meant; for that they never heard of any such thing before." * The
effects of a similar policy survive to the present day in French
Canada, where one can still observe the piety of pre-Reformation
Europe.

In like manner, Puritanism dominated New England over a cen-
tury after its sway was broken in the mother country. The English
traveler who came to Boston in 1692 not only crossed the Atlantic
but he went back in time a half a century. Such a tragedy as the
witchcraft trials would have been impossible in England in 1692,
although in perfect accord with the spirit and beliefs of the time
of the Long Parliament and the Commonwealth. In fact, the good
and evil of English Puritanism are nowhere so marked as in New
England. There it was segregated, dominant, and lived out its life.

I proposed as the third subdivision of my subject to indicate some
of the ways in which America has affected European life by reaction.

moires de I'Institut National des Sciences el Arts: Sciences Morales el Politiques,
Paris, An vn, t. n, p. 100.

1 Hakluyt, Voyages (Goldsmid's ed.), xiv, 146.

178 HISTORY OF AMERICA

In the ample scope of the New World the dominant currents of
national life found an outlet for a less confined flow, and tendencies
restrained or impeded at home from free action were released. The
Spanish and French colonial establishments were founded at a time
when the Crown was aiming to extend and systematize its powers,
and in the New World, unhampered by traditions and usages, it
became all powerful. The tendency to absolutism at home was
effectively reinforced by the exercise of it in the dependencies. Eng-
land, on the other hand, began the continuous occupation of America
when the current was in the opposite direction and the tide was
slowly rising against the royal authority, and here again the national
drift was accelerated. The large measure of local liberties enjoyed
by the English colonies, the free migration of sects, were quite as
much the result of the actual condition of English politics at the
time as of preconceived convictions. Settled under these circumstances
and left mainly to themselves, the colonies became the field for
working out social experiments which would have been impossible
in Europe, and whose successful issue has profoundly influenced all
after-life.

The most signal instance of this is afforded by the history of
religious toleration. In the sixteenth and seventeenth centuries it
was a widespread and deeply rooted opinion that religious liberty
would undermine society. The social dangers of free thought far
outweighed what seem to many to-day the economic perils of free
trade. That they were real dangers seemed to be unhappily proved
by the aberrations of the Reformation in Europe. If abstract reason-
ing makes little headway to-day in the matter of securing free trade,
we may imagine how impotent arguments in favor of free thought
must have been. The risks of failure were too great for the experi-
ment to be tried. In America, however, an opportunity was offered
through the institution of the proprietary colonies for a thorough
trial, which demonstrated on a considerable scale the safety and
advantage of a larger measure of religious liberty. For a colonial
proprietor or company to derive any profit, his lands must be sold or
rented. To get people was the first need, and the strongest induce-
ments must be offered. In the seventeenth century the prospect of
religious freedom made a powerful appeal both in England and
Germany. The experiment was first tried by Lord Baltimore in
Maryland, and its demonstrated success was followed by its adoption
by the proprietors of the Carolinas and Jerseys for utilitarian reasons.
The harmlessness and advantages of religious toleration were
effectively demonstrated in Colonial America, principally in the
proprietary colonies. It spread from these till it became characteristic
of the United States, and from that vantage-ground so imposing
an example of its benefits, powerfully contributed to its adoption

RELATIONS OF AMERICAN HISTORY 179

throughout Western Europe. Who can affirm that religious liberty
with its enormous increment to ordinary human happiness could
have been attained even in the twentieth century, without the lesson
of the experiments in Maryland and Rhode Island, the Carolinasj the
Jerseys, New York and Pennsylvania?

Still again, in America the theories of Locke seemed to explain
the facts of society, and became the people's political creed. In-
corporated in the Declaration of Independence and the State Bills
of Rights, these principles exerted an infinitely greater force upon
France, and through France upon Euro) >> and South America, than
could by any possibility have flowed dii- ctly from the Two Essays
on Government. It is needless here to expatiate upon so familiar
a topic as the rise of democracy in America and its diffusion from
these shores, or upon the development of wrritten constitutions and
their spread over the world, after the most interesting contributions
of Borgeaud to those subjects.

Passing now to my concluding thought, I shall try to point out
certain advantages to be derived from a more adequate study of the
history of Spanish America.

Our colonial history in the past has too rarely emerged from a
narrow provincialism, and even now it often tends to sink to ancestor
worship. If a departure was made from the narrow track of colonial
annals, it generally consisted in conventional comments on the
Spanish cruelties and thirst for gold and the superior wisdom and
natural capacity of the English race for colonization, with little
or no attempt at discriminating comparison between the two types of
colonial enterprise.

More broadly conceived, the study of the European colonization
of America becomes the investigation of one of the great instances
of the transmission of culture in human history, that process by
which the social, intellectual, and religious acquisitions of one people
are transmitted or imposed upon another, which is thereby lifted to
a higher stage of civilization. The conquests of Alexander spread
Greek culture far beyond the boundaries of Greek colonization;
through the expansion of Rome the science of Greece, the jurisprud-
ence of Rome, and the Christian religion became the common
possession of the ancient world; through the Norman conquest
England was brought into intimate political and social relations
with the Continent and shared more fully the heritage of Rome.
At the time of the Renaissance Italy was the teacher of Europe in
literature, art, politics, and manners; and the vivifying influences
flowing from that country fertilized the intellectual soil of Germany,
France, and England. During the reign of Louis XIV, France, in
turn, became the arbiter of manners and set the fashion for literary
and artistic effort. In the early eighteenth century the stream set in

180 HISTORY OF AMERICA

from England, when the results of the Spanish Succession War had
raised her to the position of the first power in Europe, and in France
in particular keen curiosity was aroused in English thought and
literature.

The American Revolution in a measure shifted the centre of interest
across the Atlantic, and American political ideas and methods be-
came a powerful leaven in France, where the French Revolution gave
them a universal hearing and sent forth transforming influences
in every direction. Each one of these shifting currents of cultural
influences constitutes a rich field of study. The analysis of its parts,
the processes by which its work was done, the relative degree of per-
manence of the results, all these constitute fascinating problems for
the historian.

If we approach American history from this point of view and
make it the study of the transmission of the culture of Western
Europe to a new and larger field of development, we find ourselves
engaged in the investigation of a most momentous movement in the
history of civilization, truly comparable to Alexander's Asiatic
empire and to Rome's African and Western European dominion.
For the youthful student or for the maturer investigator such a
comparative study of the Spanish, French, and English colonization is
rich in instruction. It will not only broaden his conceptions of Ameri-
can history but throw a new light on the history of Europe.

There are few fields better adapted for the comparative study of
the spirit, the capacities, and the character of these great peoples;
nor is it easy to find one where the economic and the human factors
which shaped the course of history can be more easily segregated
and estimated. Such a study calls first for a survey of the economic
and social conditions of the mother country, for a clear grasp of
what it aimed to do, and of the physical conditions in the New
World which worked for or against those objects. Yet a word of
caution is to be uttered against beginning with the comparison of
New Spain and Massachusetts, for almost all the conditions deter-
mining the character of these communities were very different. Far
more suitable is a comparison of New Spain and British India, for
there you have two imperial systems imposed upon a mass of native
populations, and a certain broad similarity at the start. If it is
once realized that British India and not Massachusetts is to be
compared with the vice-royalties of New Spain and of Peru, the
emptiness of many a generalization about the Spanish and English
colonial systems is apparent. The proper physical starting-point
for such a comparative study is the West Indies. In the West Indies
the Spanish, French, and English met on equal grounds, and the
comparison between Cuba, Hayti, and Jamaica is sound and in-
structive. It is a fruitful inquiry to examine how these three peoples

RELATIONS OF AMERICAN HISTORY 181

managed the problems of a plantation colony with slave labor; nor
is it less interesting to compare the results of their respective policies
since the abolition of slavery. A comparison between the respective
slave codes of the Spanish, French, and the English colonies is some-
what disconcerting to the student of English blood, whose knowledge
of Spanish policy has been colored by some echo of Las Casas'
denunciations of the early conquistadores. If the comparison is ex-
tended to the criminal legislation in force in the colonies of these
nations, one is again compelled to acknowledge that whatever merits
are accorded to the English system superior humaneness is not one
of them.

After such an introductory study we may appropriately compare
some phases of Mexico with New England, always keeping in mind,
however, in the case of Mexico, the influence of a climate like the
Rocky Mountain Plateau, of the rich stores of the precious metals, and
of the preservation of the native stocks.

If after this comparison we apply the same process to the history
of La Plata region and of the Mississippi Valley, certain things stand
out clearly which may be briefly noted. The stupendous economic
development of these vast agricultural regions has been possible
only since the application of steam to industry and transportation.
This great factor which has revolutionized the relative advantages
of Argentina and Peru, and enabled Buenos Ayres to become the
greatest city in the Spanish American world, has in the same way
enormously increased the disparities between Mexico and the United
States. A comparison of these two communities before the entrance
of this factor shows that in more than one respect New Spain was
in advance of New England. This is true in regard to the prosecution
of higher scientific studies, the establishment of the institutions of
charity, libraries, art, and architecture: in a word, in those features
characteristic of the life of a wealthy community.

I have referred to the Spanish treatment of inferior or dependent
races, and intimated that it compares favorably as a whole with the
contemporary treatment accorded to such dependents by the Eng-
lish colonists. The belief, of course, is widely prevalent that the
story of Spanish Indian policy was merely the tragedy of devastation;
but that view is profoundly mistaken. Its origin is found in the
curious fact that national jealousies of Spain three centuries and
more ago gave an enormous circulation in the various languages of
Western Europe to the impassioned appeals of Las Casas for the
protection of the natives. To depict the Indian policy of Spain from
the pages of Las Casas would be like drawing the history of South-
ern slavery from the columns of the Liberator and multiplying the
instances by ten. The Indians owed much to Las Casas and history
owes him much, but he apparently felt that boundless exaggeration

182 HISTORY OF AMERICA

in a righteous cause could do no harm and might do good. If we take
the confidential report of Juan and Ulloa to the King of Spain in
the eighteenth century as to conditions in Peru,1 we find that, dark
as they were, they were almost bright as compared with what appear
to be to-day the conditions in the Congo State.

It is no doubt hazardous in an historical paper to touch upon so
delicate a subject as the race question, but I will venture a few words
upon its broader aspects.

The race question involves not only the relations between the
whites and the colored in our Southern states; it confronts us in
the Philippines and Porto Rico. In other aspects it is and will be
one of the perennial and absorbing problems in the development of
Africa. For the consideration, not to say settlement, of a question
so complicated and so involved in prejudice and passion and wrong,
no light or teaching that history affords should be neglected. These
questions were first faced by the Spaniards of all modern Europeans,
and in the four hundred years' history of Spanish America there is
a wealth of human experience in the contact of races that may be
drawn upon for warning or instruction or possibly for reassurance.

If history has lessons for the present, the history of Spanish Amer-
ica assuredly deserves an immensely more careful study than jt has
yet received. If the study of that history is prosecuted with scien-
tific detachment, penetrating discrimination, and generous liberality
of mind, — that freedom from the distorting influences of race pride
and religious prepossession, — it will enrich the history of Spain and
broaden the study of our own colonial history, and contribute to the
intelligent appreciation of the race problems of the twentieth century.

In this brief essay upon a subject so comprehensive as the rela-
tion of American history to other fields of historical study, I have
found it hardly practicable to do more than to remind the student
of European civilization that his territory extends across the Atlantic,
and is not bounded by it, and that the forces and tendencies, the
people and the institutions with whose development he is occupied,
have a life over-seas, distinct but not detached from the life in the
Old World, and one with whose powerful reactions on the parent
civilization he must reckon; and. lastly, I have ventured to advocate
a broader treatment of the history of European colonization in the
New World, which will accord to the work of Spain a more appreciative
recognition, and which may not be without interest and value to us,
now that we have undertaken to shape the history of millions of
people whose earlier acquisitions of European culture came through
Spain, or to those European nations which have the problem of
Africa on their hands.

1 Noticias Secretas de America, etc. Sacadas a luz por Don David Barry. Lon-
don, 1826.

PROBLEMS IN AMERICAN HISTORY

BY FREDERICK JACKSON TURNER

[Frederick Jackson Turner, Professor of American History, University of Wiscon-
sin, Madison, Wisconsin, b. November 14, 1861, Portage, Wisconsin. A.B.
University of Wisconsin, 1884; A.M. ibid. 1888 ; Ph.D. Johns Hopkins Univer-
sity, 1890. Instructor, University of Wisconsin, 1885-88; Assistant Professor,

ibid. 1889-91; Professor of History, ibid. 1891 ; Professor of American

History, ibid. 1892 — — ; Lecturer in History in Harvard University, 1904.
Member Council of American Historical Association, Massachusetts Historical
Society, Colonial Society of Massachusetts, Curator State Historical Society of
Wisconsin. Author of various monographs and documentary collections in
Reports of American Historical Association, and American Historical Review.]

A catalogue of specific problems which await solution in American
history is, I am sure, not expected. Such a list would be altogether
too large for the limits assigned to this paper, even if it were a
desirable undertaking in itself. I prefer to discuss some larger lines
of reconstruction of United States history, some points of view from
which it may be approached, in the belief that such an estimate
may be of service in presenting tests for determining the relative
importance of our problems and in bringing into view some neg-
lected fields of study and neglected methods of investigation.

In many ways the problems of American history differ from those
of Old World history. The documents are, for the most part, recent,
and exist in comparative abundance, although scattered and in-
completely collected. Our problems with respect to material are
therefore not primarily those of the technique of verification and
criticism of scanty documents, but are chiefly those of garnering
the scattered material, printed and written; making bibliographies
and indexes; and, in general, rendering available for historical
workers the sources for understanding our development. The Ameri-
can Historical Association, through its various committees, the
Library of Congress, the Carnegie Institution, and other agencies
have already inaugurated important work in finding and listing
archives and manuscripts. But very much remains to be done in
these respects, for material that would be of inestimable service
to the historian is daily disappearing, and the existing material is
inadequately known and used. The lack of systematic bibliographies
of the documents in the various states of the Union, in the national
archives and libraries, and in the foreign countries with which we
have come in contact, or from which we have derived our origins, is
much to be regretted. Comparatively moderate expenditures by
historical societies and by the state and national governments to
perfect their documentary collections and to make them known,

184 HISTORY OF AMERICA

would revolutionize our study and obviate the necessity of rewriting
a great mass of our history. We are now using incomplete material
when rich stores of documents casting new light upon our problems
remain. The American historian is, I think, continually impressed
with the unwisdom of reliance upon a partial collection of documents,
although they may be examined with the minute and critical methods
of the trained historical critic, when an abundance of material exists.
In illustration I may suggest that a large part of our early diplo-
matic history has been written from American printed material
without the use of the archives of England, France, and Spain, and
that speculation has too frequently taken the place of discussion
of evidence actually in existence. This problem of materials is
presented also in the neglect of our growing and practical people —
more interested in making than in preserving history — to accumu-
late the records of its developments. In how few libraries are to be
found complete collections of the early session laws of the various
states, and particularly those of the group west of the Alleghanies!
Indeed, how few of these states have themselves collected complete
sets of their own public documents and newspapers. A wjiole era is
thus becoming increasingly difficult to understand and to record.
These problems of the preservation and organization of material are
among the most pressing. Traveling missionaries of history who
should explore the South and West, for example, listing and copying
or bringing into secure and accessible libraries the materials in the
form of newspapers, pamphlets, journals, correspondence, business
records, etc., would do a work that posterity would recognize with
gratitude.

Passing from this preliminary problem of the accumulation and
listing of material, I desire next to raise the question, What is the
special significance of American history? This should afford a test
for determining the grand strategy of an attack upon its fundamental
problems.

The especial contributions which students of American history are
capable of making to the study of history in general are determined,
it seems to me, by the peculiar importance of American history for
understanding the processes of social development. Here we have
a vast continent, originally a wilderness, at first very sparsely occu-
pied by primitive peoples, opened by discovery to settlement by
Europeans, who carry their institutions and ideas from the Old
World to America. They are compelled to adjust old institutions
to their new environment; to create new institutions to meet the
new conditions; to evolve new ideas of life and new ethnic and
social types by contact under these conditions; to rise steadily
through successive stages of economic, political, and social develop-
ment to a highly organized civilization; to become themselves

PROBLEMS IN AMERICAN HISTORY 185

colonists of new wilderness areas beyond the first spheres of settle-
ment; to deal again with the primitive peoples at their borders; in
short, continuously to develop, almost under the actual observation
of the present day, those social and industrial stages which, in the
Old World, lie remote from the historian and can only be faintly
understood by scanty records. * The factor of time in American history
is insignificant when compared with the factors of space and social
evolution. Loria has insisted that colonial society exhibits in social
development material comparable in the study of society to that
brought into view for the geologist's inspection by the upheavals
of the earth's crust. These have elevated deep-lying strata of geolog-
ical formations, so that it is possible from them to read the earlier
pages of the history of the earth. But the idea is incompletely stated
in this form, for the whole period of American history exhibits
recurrences of the colonial society, modified by different frontier
physiographic conditions, and by the character and intensity of
industrial life of the society that throws off these new colonies. The
process is still going on in those northern areas of prairies and
plains in Canada, where we may pass, by railroad, from the youthful
but highly organized manufacturing cities of the more densely
peopled and still developing regions, through regions of increasingly
scanty and primitive agricultural occupation, out to the waste of
foothills, where the trail of the buffalo seams the hillside, reaching
to the far horizon line and showing the road which civilization will
rapidly follow. It may frankly be conceded that the differences
between the processes of social construction in Europe and in
America are at least as important as the resemblances and analogies.
But after all limitations are made, it remains true that the history
of America offers a rich new field for the scientific study of social
development, taken in the largest sense of the phrase.

The point which I wish to make, therefore, is that it is important
to conceive of American history, first of all, as peculiarly rich in
problems arising from the study of the evolution of society. Henry
Adams has stated the matter in a somewhat less inclusive form in
these words: "The scientific interest of American history centred
in national character, and in the workings of a society destined to
become vast, in which individuals were important chiefly as types.
Although this kind of interest was different from that of European
history, it was at least as important to the world. Should history
ever become a true science, it must expect to establish its laws, not
from the complicated story of rival European nationalities, but
from the methodical evolution of a great democracy. North America

1 Discussed by the writer under the title, " Significance of the Frontier in Amer-
ican History," in the Fifth Y ear-Book of the National Herbart Society, and in Re-
port of American Historical Association, 1893, p. 197.

186 HISTORY OF AMERICA

was the most favorable field on the globe for the spread of a society
so large, uniform, and isolated as to answer the purposes of science."

It is safe to say that the problems most important for considera-
tion by historians of America are not those of the narrative of
events or of the personality of leaders, but, rather, those which
arise when American history is viewed as the record of the develop-
ment of society in a wilderness environment; of the transformation
of this society as it arose to higher cultural stages; of the spreading
of it into new wildernesses by extension across the continent. In
other words, we have to deal with the formation and expansion
of the American people, the composition of the population, their
institutions, their economic life, and their fundamental assumptions
— what we may call the American spirit — and the relation of these
to the different periods and conditions of American history.

If, then, the all-embracing problem in our history is the descrip-
tion and explanation of the progress of this society, at once develop-
ing and expanding, we shall find that within it are contained a
multitude of subordinate problems. First, let us consider the phe-
nomenon of our expanding society in reference to the fact that the
vast spaces over which this forming people have spread are them-
selves a complex of physiographic sections. American sectionalism
has been very inadequately dealt with by our historians. Impressed
by the artificial political boundary lines of states, they have almost
entirely given their attention either to national or to state history,
or to the broad division of North and South, overlooking the fact that
there are several natural, economic, and social sections that are
fundamental in American historical development. As population
extended itself, it flowed into various physiographic provinces,
some of them comparable in size and resources, not only to the
greater nations of Europe, but even to some of the great empires
that have from time to time been formed by combinations of these
nations. The American physical map may be regarded as a map of
potential nations and empires, each to be conquered and colon-
ized, each to rise through stages of development, each to achieve a
certain social and industrial unity, each to possess certain funda-
mental assumptions, certain psychological traits, and each to interact
with the others, and in combination to form that United States,
the explanation of the development of which is the task of the his-
torian.

The physiographers have recognized the existence of natural
provinces and have mapped them under such names as the New
England Plateaus, the Piedmont Plains, the Lake and Prairie
Plains, the Gulf Plains, the Great Plains, etc. The Census Bureau has
likewise attempted sectional divisions, on the basis of its maps of
population, industrial conditions, resources, etc. Railroad managers

PROBLEMS IN AMERICAN HISTORY 187

realize and act upon the theory of such sections and study them with
a thoroughness, an insight, and a power of constructive imagination
that may well be imitated by the economists and historians. Socio-
logists, also, like Professor Giddings, have attempted to state a
psychological classification of American sections. But as yet the his-
torian has hardly begun the serious study of sectionalism, in the con-
tinent as a whole. And yet this is a fundamental fact in American
history. We need studies designed to show what have been and are
the natural, social, and economic divisions in the United States. We
need to trace the colonization of these separate regions, the location,
contributions, and influence of the various stocks that combined to
produce their population. We should map the streams of migration
of the settlers from the various sections into new provinces, and the
areas of their settlement. Thus the composition of the sections will
be revealed. We should study their economic evolution, their peculiar
psychological traits, the leaders which they produced, their party
history, their relations with other sections. Such a treatment would
illuminate the history of the formation and character of the Ameri-
can people.

Perhaps I may be permitted to illustrate this idea somewhat.
If the historian were to select the New England plateaus as the
province for his study, he would find that, after all the work that
has been done in New England history, there remain some of the
most fundamental problems for solution. Who is to trace for us the
spread of population into the interior and north of New England
during the second half of the seventeenth and the eighteenth cen-
tury? Such a study, unfolding the economic and social aspects of the
movement, the agrarian and religious causes at work, the modifica-
tion of the people, the effects upon the social structure of New Eng-
land, the party divisions and the institutions resultant, would give
us important data for understanding that portion of New England
which lies beyond the seaboard, and it would cast light upon the
subsequent movement and contributions of this interior folk to New-
York and the Middle West. A detailed economic history of New
England since the Revolution is sadly needed. It would bring out
the relations of New England's physiography to her development:
the pressure of population upon the hill regions; the transfer of
economic interest from the sea to the water powers, from commerce
to manufactures; the changing political attitude of the various
portions of the section in response to the changing industrial inter-
ests; the economic, social, and religious conditions that led to the
exodus from New England and the formation of a greater New Eng-
land in the West. At present we do not know enough about this
expansion of the New England people — a movement certainly
comparable in its importance, in its influence upon American history,

188 HISTORY OF AMERICA

to the much studied earlier colonization of the Puritans in New
England proper. These later colonists carried New England men,
institutions, and ideas into regions which far excelled the area from
which they came in size, in productiveness, and ultimately in political
influence. The area of the northern counties of Illinois entered
by New England settlers constitutes in itself a level region of solid
fertility equal to the combined area of Massachusetts, Rhode Island,
and Connecticut, with all their unproductive hills. The influence of
New England upon the political history of the Middle West, and
through it upon the nation, has been profound. Its effect in forming
the social and moral ideas of the central region of the republic can
hardly be overstated. But we really know but little about this
colonization compared with the detailed information which historical
investigators have given us about the location of the homes of the
Pilgrims. We cannot even state with approximate correctness the
periods when the various Western states received their largest
numbers of New England settlers. Nor has the replacement of this
New England stock in the parent region by immigration been ade-
quately studied. We shall not understand the New England of to-day
until we have a fuller account of the industrial, social, political, and
religious effect of this transformation of New England by replace-
ment of its labor population and by the revolution in its industrial
life, with the accompaniments of social stratification, loss of homo-
geneity, and changed ideals in respect to democracy.

Not to dwell too long upon this region, let us turn for a moment
to indicate a few of the problems that arise when the South is con-
sidered from this same point of view. The term South as a sectional
designation is misleading. Through a long period of our history the
"Solid South" did not exist. We must bear in mind not only the
differences between the various states of the Southern seaboard, but
also the more fundamental differences between the up-country (the
Piedmont region) and the Atlantic Plains. The interior of the South
needs treatment as a unit. State historians of Virginia and the
Carolinas, for example, recognize the fundamental contrasts in
physiography, colonization, stock, and economic and social charac-
teristics, between the lowlands and the uplands in their respective
states. But as yet no one has attacked the problem of the settle-
ment, development, and influence of the Piedmont Plains as a
whole. This peninsula, as we may conceive it, thrust down through
the Great Valley from Pennsylvania, between the mountains and the
seaboard, the land that received the German, Scotch-Irish, and
poorer white English settlers, developed, in the second half of the
eighteenth century, an independent social, economic, and political
character. It was a region of free labor upon small farms. It was
devoted to cereals rather than to the great staple crops of the sea-

PROBLEMS IN AMERICAN HISTORY 189

board. In its social structure it was more like Pennsylvania than the
Southern commonwealths with which it was politically connected.
It struggled for just representation in the legislatures, and for ade-
quate local self-government. The domestic history of the South
is for many years the history of a contest between these eastern
and western sections. When the cotton belt, with slavery as its
labor element, spread across this Piedmont area, the region became
assimilated to the seaboard. The small farmers, raising crops by the
labor of their own families, were compelled either to adjust them-
selves to the plantation economy, or to migrate. The process of this
transformation and its effects constitute a problem not yet worked
out in details. A migration of small farmers from the Piedmont
across the Ohio and into the Gulf region followed. Many had moral
and religious objections to slavery, many were unable to change
their agricultural habits to meet the new conditions, many lacked
the necessary capital for a slave plantation and preferred to accept
the price of their lands offered by the planters, and to migrate to the
public lands where they could continue their old industrial and
social type of society. In this expansion of the South into the Ohio
Valley and the Gulf Plains we have a colonization demanding study.
Indeed, the whole industrial and social history of the South has been
obscured by the emphasis placed on the political aspects of the
slavery struggle. We need a history of the plantation in its various
areas and at different periods. Such a study would give us the key
to Southern history. The rise and fall of cotton values, the price
of slaves, the agrarian history of the South, the relation of its polit-
ical demands to these conditions, the distribution of rival political
parties in the region, — these and similar topics would come into
prominence if the historian should select for treatment the Southern
provinces of the Atlantic Plains, the Piedmont and the Gulf Plains,
their interaction, and the shifting centre of political power between
them.

It is unnecessary to point out that similar advantages would come
from attempts to explain the evolution of the social structure of the
Lake and Prairie Plains, the Great Plains, the Pacific Coast, etc.
We should study the contact of whites and Indians; the history of
the occupation of the public lands in these provinces; the move-
ment into them of settlers from other sections; the industrial trans-
formations of the provinces from primitive farming up to the
complex economic conditions of to-day; the development and in-
fluence of railroad systems; the rise of cities; the rise of peculiar
views of life in the respective sections. Such topics carry with them
a rich freightage of problems, essential to explain our own history
and capable of casting important light upon the evolution of society
as a whole.

190 HISTORY OF AMERICA

The problems of inter-provincial relations need study also. The
whole history of American politics needs to be interpreted in the
terms of a contest between these economic and social sections.
Periods when it seemed that there was no great issue dividing political
parties will be found to abound in evidences — in the legislation of
Congress, for example — that intense political struggles actually
went on between the separate sections, combining and rearranging
their forces as occasion showed the need. It is only when we get
below the surface of national politics to consider the sectional party
groupings that we are able to discover the lines on which new party
issues are forming and the significance of the utterances of the
leaders of these rival sections. Again and again, we shall find the
party candidates anxious to conciliate the conflicting interests of
the different sections and attempting to "straddle" upon vital
problems, which nevertheless continue to force themselves to the
front. The outcome is determined by the combination of these rival
sections for and against the proposition. Studied from this point
of view, the careers of J. Q. Adams, Clay, Calhoun, and Jackson, as
spokesmen of their areas (to take examples), acquire new meaning and
significance. Even more obvious, perhaps, is the slavery struggle.
When it is stated that, in one important aspect, that struggle was a
conflict between the Lake and Prairie plainsmen, on the one side, and
the Gulf plainsmen, on the other, for the control of the Mississippi
Valley, the Civil War acquires new meaning. Lincoln, Grant, and
Sherman were the outcome of the influences of the Middle West;
Davis, Yancey, and A. S. Johnston came from the Cotton Kingdom
of the Gulf Plains. We are forced to reexamine the political strife
with reference to the forces which conditioned the leaders of these
rival sections. We are obliged to study such problems as the develop-
ment of the industrial resources of the regions, both before and
during the war.

The economic rivalries and industrial inter-relations of the different
sections of the country also are continuous factors in our history,
and are more familiar to business men and to railroad managers
than they are, as a rule, to the historian.

Passing, with these suggestions, from the problems that arise on
breaking up our subject into provinces, let us next note that, for
the explanation of the United States, we need historical investigation
of a large number of topics as yet very imperfectly studied. It will
be possible only to suggest some of the more important. First, let us
inquire how far American historians have seriously attempted the
study of the formation and development of our national character.
The transition of the people of the United States from the conflicting
ideals and traits of the colonial period to the present ideals of the
nation, constitutes an important study in the evolution of the cul-

PROBLEMS IN AMERICAN HISTORY 191

ture of the people, and, as yet, has been only imperfectly examined.
We need to investigate the forces by which the composite nationality
of the United States has been created, the process by which these
different sections have been welded into such a degree of likeness
that the United States now constitutes a measurably homogeneous
people in certain important respects. We need to study the rise and
growth of the intellectual character of the people, as shown in their
literature and art, in connection with the social and economic con-
ditions of the various periods of our history. In short, we need a
natural history of the American spirit.

To take another topic, we need a political history of the United
States which shall penetrate beneath the surface of the proceedings
of national conventions to the study of the evolution of the organs of
party action and of those underlying social and economic influences
in the states and sections which explain party action. This matter has
been indicated in connection with the importance of studying our
history from the point of view of rival sections, but it is of sufficient
importance to warrant separate consideration. We need to give a
social and economic interpretation to the history of political parties
in this country. In illustration, I may say that maps giving the
location of Democratic counties and Republican counties in the
states of the Old Northwest, through several decades of our history,
show an astonishing coherence and persistence in area of these rival
parties. Transition areas show close votes as a rule. This indicates
that party grouping depends upon such social factors as nativity,
persistence of traditions, economic conditions, etc., even more than
upon leadership and reasoning. When such a study of our party
development shall have been made, we shall be in a better position
to comprehend the laws that determine party action in general, and
an important contribution will have been made to the understanding
of the development of society.

Another topic very inadequately treated is the agrarian history of
the United States. To take one phase of it, we lack an extended
history of the public domain in its economic and political influence.
Fragments of these topics have been dealt with by able scholars,
but we have no complete treatise on the subject. If, as I believe,
the free lands of the United States have been the most important
single factor in explaining our development, there should be increased
attention to the land system. The history of land tenure and land
values, the effects of the cheaper lands of the newly occupied regions
upon the older settled country, the relation of cheap lands to wages
and to society in general, need to be considered.

The subject of immigration has been hardly more than touched
by the American historian. In spite of the fact that so vast a body
of our population has been drawn since the later colonial days

192 HISTORY OF AMERICA

from non-English stocks, the history of the European conditions
that brought these people to us, the process of transformation of
the immigrants into American citizens, the effects which they pro-
duced upon American society and industrial life, are all too little
known. We shall not understand the American people without
giving much more attention to this important subject.

It is impossible to do more than name some of the long list of
topics as yet inadequately treated. There is needed a study of our
relations to the American Indian. No systematic study of this pro-
blem as a whole has been made, and yet it is an exceedingly important
one in the history of American development, and one from which rich
results may be expected. It is hardly necessary to say that such
a study of the negro is needed. The history of the law in America
remains to be written by the cooperative study of men trained to
historical investigation as well as in the law. The history of religion
and of the various churches in the United States has not yet been
written as a phase of the general social development of the American
people. It should be considered in its relation to American history
as a whole, and it will be found that some of the most fundamental
factors in our history require such a study for their explanation.
Recently some important beginnings have been made at a history of
labor in America. This has been one of the most important neglected
fields in our history, and it is to be hoped that thorough investigation
will be given to the rise of the laboring classes, the organization of
labor and its influence in American society. Somewhat connected
with the same topic is the study of the development of democracy
in the United States. As yet we know but imperfectly the stages in the
development of the political power of the common people. A com-
plete history of the franchise in this country and of the organization
of the masses to impress their will upon legislation is a desideratum.
A comparative study of the process of settlement of the United
States would be another important contribution. If, with our own
methods of the occupation of the frontier, we should compare those
of other countries which have dealt with similar problems, — such
as Russia, Germany, and the English colonies in Canada, Australia,
and Africa, — we should undoubtedly find most fruitful results.

But I pass from the enumeration of these tempting problems of
topical history, — an enumeration which is merely begun, not at all
completed, — to suggest next that certain periods and areas of our
history have been inadequately treated. The whole colonial history
of the eighteenth century needs study. The Revolution and French
and Indian wars of that period have withdrawn attention from the
contemporaneous transformations in our economic, political, and
social institutions. In some respects, this was the period of forma-
tion of the peculiarly American institutions in contrast to the English

PROBLEMS IN AMERICAN HISTORY 193

institutions that were imported. Then it was that the American
people, psychologically considered, originated. But little attention
has been given to the period, aside from its military aspect.

The generation that followed the Civil War has yet to read its
history also. The time would seem to have come when the histo-
rians should bestow some of their attention upon the wonderful
development of the nation since the reconstruction period. How
profoundly our whole life has changed in that period, it is unnecessary
to say. The vast organizations of labor and capital, the tremendous
increase in immigration whereby the American stock has been
modified, the extraordinary growth of transportation facilities,
and society with them, the concentration of industries, the spread
of our commerce abroad, and the rise of the United States into the
position of a world power, the new political issues — are but a few
of the subjects as yet dealt with by the historian in only a cursory
way.

From the lack of attention to our recent history, it follows that
the area between the Mississippi and the Rocky Mountains — an
empire in itself — is almost virgin soil for the historian. Nor is it
a region without interest. It is doubtful whether anywhere more
profitable work could be done than in the interpretation of the
formation of society in this vast domain of the prairies.

Perhaps the first problem of all — one that I shall content myself
with stating merely — is the problem of how to apportion the field
of American history itself among the social sciences. The conception
that history is past politics is now but little regarded, and the con-
ception of history as the study designed to enable a people to under-
stand itself, by understanding its origins and development in all
the main departments of human life, is becoming the dominant one.
But the history of the American people forces upon our attention
the fact that no satisfactory understanding of the evolution of this
people is possible without calling into cooperation many sciences
and methods hitherto but little used by the American historian.
Data drawn from studies of literature and art, politics, economics,
sociology, psychology, biology, and physiography, all must be used.
The method of the statistician as well as that of the critic of evidence
is absolutely essential. There has been too little cooperation of
these sciences, and the result is that great fields have been neglected.
There are too many overlapping grounds left uncultivated owing
to this independence of the sciences, too many problems that have
been studied with inadequate apparatus, and without due regard to
their complexity. I propose no solution of the difficulty; but it is
important fairly to face it, and to realize that, without the combined
effort of allied sciences, we shall reach no such results in the study of
social development as have been achieved in the physical world by

194 HISTORY OF AMERICA

the attack of problems of natural science by the combined forces of
physics, chemistry, and mathematics.

In short, American history should be studied as capable of making
most illuminating contributions to the history of social development.
All of the apparatus needed to solve the problems arising from this
conception of the nature of American history should be used.

SUPPLEMENTARY PAPERS .

PROFESSOR MARSHALL S. SNOW, of Washington University, St. Louis, presented
a short paper on "Commerce and Discovery," in which he emphasized the "com-
mercial idea" as being the real force actuating the discoveries of the fifteenth
and sixteenth centuries, and criticised the undue importance which has often
heretofore been given motives which were secondary and not primary. From
the time of Columbus, Vespucius, and other navigators seeking new routes to
India, to the later English and European explorations, the desire for fame, the
love of adventure, and the wish to extend dominion, religious and temporal,
were much less powerful than the overwhelming desire to open gold-mines and
rival successfully competing nations in the pursuit of commercial supremacy.

PROFESSOR EVARTS P. GREENE, of the University of Illinois, presented a paper on
" Some Aspects of Colonial Politics at the Beginning of the Eighteenth Century."
The speaker contrasted the government of the colonies during the early period,
ranging from the theocratic republic of Massachusetts to the semi-feudal palatin-
ates of Maryland and Carolina, with the marked change which had taken place
at the beginning of the eighteenth century. At this time the great majority of
American people lived in royal provinces, having a governor appointed by the
Crown and a representative assembly elected by the people, — the governor
standing for prerogative, for imperial control, for British interests; the assembly
for constitutional privileges, for autonomy, and for local interests. The develop-
ment of various policies adopted by the Crown with regard to each of the colonies
was concisely set forth, and the conclusion reached that throughout the entire
first half of the century the influence of imperial government was being neutral-
ized and at the same time there was being asserted vigorously and successfully
the self-governing principle.

DR. CHARLES E. FISKE, of Centralia, Illinois, presented a paper on " The
Township Government in Indiana." It had for its fundamental point the asser-
tion that the real basis of the liberties of the Anglo-Saxon race was the right of
the people to regulate their local public affairs. It is the failure to recognize
this fact that has kept the world wondering at the success of the Republic of
the United States. As an illustration of this the speaker gave an account of the
organization of Indiana from the Northwest Territory and the introduction of a
new atmosphere in reference to local government. The fact that the township
system of Indiana at present rests entirely upon legislative enactment, which
may at any time be rescinded, needs serious thought if we admit that the surest
safeguard of liberty is the power of the people to control their own local affairs.
The danger from imperialism is not from above but from below. We are not in
danger from the general government. The danger is when the people allow the
affairs of their local government to get into the hands of the general government
through sheer lack of attention.

PROFESSOR FREDERIC L. PAXSON, of the University of Colorado, presented a
paper on "The Territory of Jefferson: A Spontaneous Commonwealth," in which
was set forth in an interesting manner the efforts of the mining districts of Pike's
Peak and the adjacent country to form a suitable government which should
preserve law and order, and protect property. Its short life of a year and a half
was only an episode in commonwealth building in the West, but it illustrated
the constant quality of frontier citizenship and the spontaneous instinct for self-
government that gives to American life so much of its distinctive character.

SECTION F
HISTORY OF ECONOMIC INSTITUTIONS

SECTION F
HISTORY OF ECONOMIC INSTITUTIONS

(Hall 2, September 23, 3 p. m.)

CHAIRMAN: PROFESSOR FRANK A. FETTER, Cornell University.
SPEAKERS: PROFESSOR J. E. CONRAD, University of Halle.

PROFESSOR SIMON N. PATTEN, University of Pennsylvania.
SECRETARY: DR. J. PEASE NORTON, Yale University.

ECONOMIC HISTORY IN RELATION TO KINDRED

SCIENCES

BY JOHANNES EVAST CONRAD

[Johannes Evast Conrad, Professor of Political Science, University of Halle, and
Privy Councilor, b. February 28, 1839, Borkau, West Prussia. Ph.D. Jena,
1864; LL.D. Princeton. Member of Commission to revise the Code of Civil
Law; Member of the Institute of France; Academy of Sciences, St. Petersburg;
American Academy of Social Science, Philadelphia; International Institute of
Stafistics. Author of many books and essays on Political Economy. Editor of
Annals of Political Economy and Statistics, Jena, 1870; Collections of Essays
on Political Science; co-editor of Manual of Political Economy, Jena, 1899, 1902.]

THE enormous extension of the field of knowledge, together with
its more thorough cultivation, has in modern times led almost all
sciences to apply the principle of division of labor. Such is the trend
in the recent development of the science of history. Beginning
naturally with the description of the political life of a country in
some period, history then turned its attention to the phases of the
development of national life which underwent the greatest modi-
fications and because of their striking features attracted general
interest, that is, political events, struggles at home and abroad,
changes in the governing forces of the state, etc. It was only gradually
that interests enlarged and began to embrace other phenomena, as
manifested in science and art or in economic activity.

There have been hitherto only three periods in which these sides
of life have assumed such general importance as to demand equally
with political events an historical presentation. This was the case in
classical antiquity when philosophy and art were most flourishing,
in the period of the Reformation when questions of religion stirred

200 HISTORY OF ECONOMIC INSTITUTIONS

the world and simultaneously discoveries and inventions began to
revolutionize economic life, and above all in the last century when
economic and social problems have swayed men's minds far more
than transactions of state, the shifting of political power, or the
opinions and deeds of princes.

The training of all intellectual powers with the impulse given by
the art of printing necessarily aroused an increased interest in the
development of mankind as a whole and brought out more clearly
the final aim of all historical investigation, the knowledge of man in
all his aspects and of his ways and means to assist the progress of
civilization, in order by such study better to understand the present
and the problems of the future. There thus arose, in contradistinction
to the history of individual peoples, the conception of a universal
history such as that attempted by Gatterer l and Schlozer 2 in Gottin-
gen during the eighteenth century, and thus far brought to its most
finished form by Leopold Ranke. But while unity of aim was being
realized, the necessity became apparent for a division of the science
in the form of the history of intellectual and of economic culture,
each of these extensive fields affording opportunity for the life-
work of students of very differing abilities and interests. Along
with the history of art and literature came that growth of economic
history with which we have here to deal.

As no science can advance without taking historical retrospects, it
was natural that from the very beginning the representatives of the
two great studies, history and political economy, which stand in
the closest relation to economic life, could not well avoid making
economo-historical investigations. It is, however, only very recently
that these have become of fundamental importance. We find the
mercantilists, as, for example, Antonio Serra, already studying the
movement of prices and the monetary history of their country, in
order to explain the events of their own time. And Adam Smith,
who is so often reproached for his purely abstract method, turned to
good account in his work the history of coinage as well as of trade in
England. Robert Malthus supports his theory of population upon
a study, reaching as far back as possible, of the increase of popula-
tion in different countries. Saint-Simon founds his socialistic doc-
trines upon a description of the class differences emerging in the
course of centuries. Of historians, Schlozer must again be named
among the first who found an economic basis indispensable for uni-
versal history. Among later writers, Macaulay seems to me particu-
larly worthy of notice, and his account of the economic condition
of England at the end of the seventeenth century, of the state of

1 Johann Christoph Gatterer, Handbuch der Universalgeschichte, etc. GOttin-
gen, 1761.

2 August Ludwig SchlSzer, Wetigeschichte nach ihren Haupttcilen. Gottingen,
1792.

ECONOMIC HISTORY AND KINDRED SCIENCES 201

agriculture, of factory workers, of roads (vol. i, ch. iii), and also of
the development of credit which led to the foundation of the Bank
of England (vol. iv, ch. xx), must be regarded as a model study in
economic history. In this connection should also be mentioned
the attempts of Justus Moser to complete his historical presentation
by a thorough description of the economic conditions of his small
native region. But it was principally the further growth of political
economy which of necessity led to the development of economic his-
tory. This, of course, was especially the case where the teachings of
Adam Smith had never been freely accepted, but where problems
far-reaching in their influence on economic life were always left in
the hands of the state, as in Germany. Here, as early as the thirties
of the last century, political economy received that threefold division
which by emphasizing economic policy and finance gave the prac-
tical side of the science greater importance than in any other coun-
try. The historical investigation of the old guild system by Wilda,1
of the financial history of the Middle Ages by Hiillmann,2 etc.; in
France, de Tocqueville's epoch-making L'Ancien Regime, with its
new light on the French Revolution, are all results of the same
general tendency. And here I would name especially my revered
teacher, Georg Hanssen, who in his study of peasant holdings, the
abolition of serfdom, etc., produced works, which, in explanation
of present conditions, are models of their kind. The scholar found
himself compelled, if he would judge modern conditions aright, to
examine how and from what causes they came to be what they are.
But not alone for history and the practical problems of political
economy but for theory as well did the necessity of economo-his-
torical study become evident. I need only refer here to well-known
facts. Friedrich List 3 sought in history his chief weapon of attack
against the one-sidedness of Adam Smith. His statement of the
various economic stages, erroneous though it was, made a long-
enduring impression, as did also Hildebrand's 4 comparison of the
stages of the barter, the money, and the credit system. Hilde-
brand's attack against socialism rests likewise on historical evidence,
and in the first article of his Jahrbiicher (1863), on the task of eco-
nomic science, he particularly emphasized the necessity of economic
history. Wilhelm Roscher 5 in his Political Economy enunciates
scarcely a single proposition without bringing historical data for
its support, and Knies 6 constantly pointed out the need of applying
historical methods for the further development of economic science.

1 Wilh. Ed. Wilda, Das Gildewesen im Mittelalter. Halle, 1831.

2 K. D. Hiillmann, Deutsche Finanzgeschichte des Mittelalters. Berlin, 1805.

3 Das nationale System der politischen Oekonomie. 1840, 7th ed., 1883.

4 Jahrbiicher filr Nationalokonomie. Band n, 1 January, 1864.

5 Die Grundlagen der Nationalokonomie. Stuttgart, 4th ed., 1861.

9 Die politische Oekonomie von Standpunkte der geschichtlichen Methode. Braun-
schweig, 1853 and 1883.

202 HISTORY OF ECONOMIC INSTITUTIONS

More recently in Germany, two men have devoted themselves to the
causes of economic history and have succeeded in gaining recognition
of its very great importance. I refer to Gustav Schmoller and Karl
Lamprecht. Both of them have been characterized by the one-
sidedness which is essential for pioneer work, but each has sought
to connect his science with economic history and to make it the
foundation of a new edifice, Schmoller for political economy, Lamp-
recht for history. Little as I can give my full adherence to either
of these investigators, I am nevertheless bound to acknowledge
their great service in this direction and to express the gratitude we
owe them for their work in economic history. But before we examine
their opinions more closety we must recall to mind the problem and
the inner nature of our science.

Economic history must from its nature not only investigate and
describe the actual processes of economic life in different periods,
but must especially follow their development with a view to explain-
ing causal relations.

Just as history itself started out with the special investigation
and description of a country at some definite period of the past, so is
it also the task of economic history to give historical cross-sections
either of the economic life of a country or a region or of a branch
of production. Examples have been given us by Schmoller in his
Strassburg Weaver's Guild, by Schonberg in his Financial History of
Bale in the Fourteenth and Fifteenth Centuries (1879), and by Biicher
in his Population of Frankfort on the Main during the Fourteenth and
Fifteenth Centuries (1886). Here belong also such works as Troel-
Lund's * Danish and Norwegian History of the Sixteenth Century, and
Klemm's 2 History of Civilization, the former containing a detailed
investigation of housing conditions, etc., the latter a description
of utensils and ornaments of all kinds from the first beginnings of
civilization. This minute investigation has often been contempt-
uously regarded as useless trifling, and undoubtedly a love of minutiae
can be carried too far and thus injure the scientific character of a
work. It is certain, however, that such detailed research is indis-
pensable, and we should rejoice when investigators devote them-
selves to so tedious and ungrateful a task. Often the inner connec-
tion of various cooperating factors can be discerned only within
a small field, and only by penetrating and minute investigation is it
possible to discover those new and important factors which a merely
general survey would fail to reveal. Just as the microscopist dis-
covers injurious bacilli and thus the explanation of many diseases,
so a similar close examination shows processes in economic life

1 Troel-Lund, Danmark og Norges Historie i Slutningen af det 16 Aarhun drede
10 vols. Copenhagen, 1887.

2 Klemm's -Kulturgeschichte, 1843-52.

ECONOMIC HISTORY AND KINDRED SCIENCES 203

which would never otherwise be disclosed. Especially for the be-
ginner are such special historical studies an unsurpassed means for
obtaining a good historical training, for acquiring exact methods and
a more acute perception of combinations, etc., while, and this is a
weighty consideration, they permit the task to be proportioned to the
capacity. Building stones may thus be obtained, which of course
must be hewn into shape and in large numbers if an edifice is to be
erected. But the important point is that the historical method
be applied to determine the continuity of development, and in his
initial investigations the student must confine himself to those
particular branches or institutions of economic life which may be
mastered by the beginner. With reference to the value of detailed
investigation, I would mention Tooke and Newmarch's 1 valuable
History of Prices. They have given us entirely new ideas, not only
as to the conditions of earlier times but still more as to the nature
and significance of single economic measures. Thorold Rogers's 2
historical studies of agriculture, commerce, industry, and prices
in England, and Levasseur's 3 on the laboring classes in France, also
belong here.

It was only by a comparison of guild institutions in their different
stages of development that a correct understanding was obtained
of the essential nature of the guild system. A closer study of the
condition of roads at different periods affords us an explanation
of the peculiarities of trade, of different branches of industry, and of
domestic life at different epochs. Truly amazing is the bee-like indus-
try with which hundreds of investigators in Germany now continually
engage in such detailed studies, concerning which Lamprecht,4 for
instance, during the eighties gave in my Jahrbiicher very interesting
reviews.

The chief task, however, will naturally be to construct a well-
balanced whole from these single contributions, not merely to give
a survey of the economic activity of mankind at different periods
but to present this in its historical development. As universal
history tends to develop from national history, the history of civil-
ization from political history, there must in like manner gradually
emerge an all-embracing economic history of different countries and
finally the economic history of mankind; thus for a certain country

1 A History of Prices, etc., from 1793 to 1856. 6 vols. London, 1838-57.

3 J. Thorold Rogers, A History of Agriculture and Prices in England from 1257-
1793. 7 vols. Oxford, 1866-1902.

J. Thorold Ropers, Six Centuries of Work and Wages. London, 1884.

J. Thorold Rogers, The Industrial and Commercial History of England. London,
1892.

3 Emil Levasseur, Histoire des classes ouvrieres en France depuis la conqucte de
Jules Cesar jusqu'd la Revolution (1859 2 vols.), and depuis 1789 jusqu'u nos jours.
Paris, 1867.

4 Jahrb. f. Nationaldkonomie,1882, 1883,1884. Die urirtschaftlichen Studien in
Deutschland.

204 HISTORY OF ECONOMIC INSTITUTIONS

and a certain period, Jakob Burckhardt has given us a history of
civilization of the Italian Renaissance, and Gustav Freitag, in a
different manner, descriptions of life in the period of the German
Reformation and in the following centuries. And what the his-
torian Schlosser feebly attempted in his History of the World has
become in Lamprecht's 1 hands the foundation of universal history,
while economic history, after Biedermann's beginning, in his Economic
History of Germany in the Eighteenth Century, and especially in von
Inama-Sternegg's ambitious Economic History, is clearly aiming to
describe the development of economic life from the standpoint of
the economist. The way has thus been shown, and it will undoubtedly
be pursued with growing success in the immediate future.

But the position of our science in method and aims will best
become apparent if we compare it with the mother science, with
history itself, which has hitherto regarded the political side of human
development as its essential and indeed sole material. It confined
itself to the history of the state and therefore fulfilled only one part
of the task which is set for it to-day. It is a tendency of human
nature to pass from one extreme to another, and after neglecting to
excess the economic and social factors there is now a widespread
movement to take them as the starting-point and essential founda-
tion of all historical science. It will therefore be necessary to weigh
carefully in order to find the true mean. But no one any longer
denies that for a proper understanding of political events a know-
ledge of social and economic conditions is also necessary.

A sure basis for decision will, it seems to me, be found at once
by recognizing unreservedly that each advance in civilization has
been possible only in and through a well-ordered state, that the
formation of the state has been the most important and significant
expression of the grade of civilization at all periods, just as on the
other hand the state has exercised the most far-reaching influence
upon social and economic life. It was, therefore, only natural that
the organization of the state and political activity should have
been made the chief subject of historical study, particularly as
these most attracted attention and were most easily described.
Difficulties arose when the next step was undertaken, and the attempt
was made to explain the motives of political action by investigating
natural conditions, by analyzing the psychology of leading per-
sonalities, and by studying the character of the population upon
and through which these leaders had acted. For not with every
people could Csesar, Frederick the Great, or Napoleon have achieved
the same results; furthermore, the same people, the same race, has
been at different stages of its progress capable of very different
degrees of accomplishment; every period has its own conception
1 Zur'jilngsten deutschen Vergangenheit, vols. i and n. Freiburg, 1903.

ECONOMIC HISTORY AND KINDRED SCIENCES 205

of law and custom, and the nation has therefore been animated in
turn by different ideas which have influenced its action. The history
of civilization has here to be consulted. Geography, too, must play
its part, since the natural conditions of the earth's surface form the
basis for the development of nations as of mankind. Even if Liebig's
saying went beyond the mark, that "ever and in all times it has
been the soil with its fruitfulness which has conditioned the life
of nations," if in truth civilized man in his progress has succeeded
marvelously in emancipating himself from nature and in ruling
her more and more instead of being ruled by her, it nevertheless
remains true that here definite bounds are placed to the power of
man, that until very recent times economic development has been
ruled by nature, and that this development now and for all time is
in the highest degree influenced by the conditioning force of climate
and soil upon the natural capabilities of man. Thus the superiority
of England, its economic and political predominance in the last
century, is due as much to the coal and iron in the depths of its soil
and to the waterways which lead directly to the mines as to the
physical strength and mental energy of the people which has flour-
ished upon its soil and in its temperate climate.

Buckle has already pointed out the great influence exerted by
climate upon human character and intellectual capacity, but it is
far more important to observe how under the same natural condi-
tions man has at different periods developed quite different capabil-
ities, how he has learned to make use of nature and to employ her
gifts for the satisfaction of his wants. These wants, however, have
not remained the same; on the contrary, they have continually
changed, and not entirely without justice has it been said that the
history of human wants is the history of human culture, both
economic and intellectual. Cultivation of the intellect increases the
capacity for enjoyment and at the same time the ability to devise
new means of satisfying the new wants. It was only higher civilization
which made possible the centuries of invention, that of the Reforma-
tion period, and again the last century; and the new inventions in
turn, which had made possible the production of new and cheaper
commodities, aroused the taste and desire for them in widening
sections of the population, so that despite the great labor-saving
expedients, the population, even with the most strenuous exertion,
is unable to produce all that is desired. Thus man is just as inventive
in awakening within himself new needs as in discovering new means
of satisfaction, and through the problems thus set him, which to his
good he can never finally solve, he is led to an ever higher develop-
ment of his intellectual powers. Here lies the chief foundation for
the progress of civilization. The life of the state appears thus only
as means, not as end. The study of the growth of economic interests

206 HISTORY OF ECONOMIC INSTITUTIONS

and activities assumes, therefore, up to a certain point an inde-
pendent character, though never without regard to the organization
and action of the state, which, however, falls into a secondary posi-
tion. A division of labor must be perfected in which economic
history takes its place beside political history as a helpful companion.
They are destined to walk arm in arm along the scientific highway,
not, as occasionally seems to be the case, to tear one another's hair
in rivalry.1

I hope now to have sufficiently indicated the high value of eco-
nomic history for universal history. It appears still more necessary
to define the limits of its usefulness and therefore of its importance.
Since the epoch-making appearance of Darwin, his doctrine of
evolution has been passed on from the natural to the mental sciences,
above all to history, and in the theory of evolution the mechanical
development not only of races but of nations and states, indeed of
all civilization, has been assumed and the attempt made to explain
it. According to this theory, natural conditions, influencing the
social and economic life, determine also the mental development of
mankind. In his materialistic conception of history, Karl Marx
in particular undertakes to prove that ideas of right and law itself
are the natural and necessary results of the social economy. The
influence of individuality and of ideas is thereby by no means
absolutely denied, but it is restricted within very narrow bounds.
The views of Auguste Comte in philosophy, of Lamprecht in history,
of Wohltmann and others in natural science, tend in a similar direc-
tion. In the development of civilization they are inclined to assign
too little significance to the free will of man, to the single individual,
and to the action of chance. Everything, they hold, is subject to
the laws of a mechanical development, and the discovery of these
laws is the proper task of history and of political economy.

The physical theory of life dominates science to-day so completely
that I need not here discuss in detail what concession must undoubt-
edly be made to it. Every human action is the necessary consequence
of definite motives; furthermore every phenomenon in nature, whether
in economic or social life, has its sufficient reason. There can, there-
fore, be neither chance nor free will in the sense of unmotivated
caprice or unrelated action. Rather is the question to be asked,
whether from the fact that everywhere there is apparent a connection
between cause and effect and that intellectual activity is bound up
with and conditioned by material environment, the necessary con-
sequence must be the acceptance of the materialistic theory of life,

1 K. Lamprecht, Zwei Streitschriften. den Herrn H. Oncken, H. Delbriick, M.
Lenz zugeeignet. Berlin, 1897.

Dietrich Schafer, Das eigentliche Arbeitsgebiet der Geschichte. Jena, 1888.
Dietrich Schafer, Geschichte und KuUurgeschichte. Jena, 1891.
E. Gothein, Die Aufgaben der Kulturgeschichte. Leipzig, 1889

ECONOMIC HISTORY AND KINDRED SCIENCES 207

or whether on the contrary it rests upon a misunderstanding.1 I am
decidedly of the latter opinion. We see developing upon the same
soil completely different stages of civilization, though doubtless
in the last analysis definite bounds are set to human activity by
natural environment, as for instance, to cite an extreme case, in the
polar regions and in the tropics. But within these bounds lies so
infinitely wide a field that in most cases it is negligible in our in-
vestigation. Economic history proves to us man's great independence
of nature. His peculiar capacity for progress is independent, not
altogether of external influences, but of those accessible to human
knowledge, which alone, therefore, demand our consideration. If
in the extreme sense of the word there is no chance, still from the
standpoint of human judgment chance does exist in historical
events. The death of a ruler at a critical moment, as for example of
Gustavus Adolphus in the battle of Liitzen, has of course a natural
explanation in the encounter of a good marksman with the king on
the battlefield, but from the historical standpoint it nevertheless
remains an accident of the deepest significance for the further history
not only of the Thirty Years' War but of Germany. So also the fact
that Frederick the Great remained unscathed in every battle and
reached a great age, although it had its satisfactory natural reason,
was for the historian accidental, since causes thus conditioned are
withdrawn from human observation and do not stand in any inner
connection with the general course of events. At the same time it
has nevertheless been already admitted, or at least indicated, that
certain prominent individuals can have and continually do have
a definite influence upon the further development of civilization as a
whole, even though they are bound in their activity to the soil where
they have grown, are the product of the milieu out of which they
have proceeded, and their influence is determined by the state of
civilization and the racial characteristics of the nation upon which
they have operated. That just three such men found themselves
together as our Emperor William, Bismarck, and Moltke, was for
Germany an accident which we have to thank for the existence in its
present form of a united German Empire, and no one can say when
and how the same end could otherwise have been attained. Because
of Bismarck's conviction that his purpose could be effected only by
an equal, universal suffrage, the social-democratic party has obtained
the political importance which it possesses among us to-day and the
Centre exercises a decisive influence upon our legislation. That only
the powerful personality of a Luther called the Reformation into
being, guided it in the course it took, and made it actually effective,
is now generally recognized. The mere enumeration of names is
sufficient to recall the influence on all economic life exercised by
1 Ed. Meyer, Zur Theorie und Methodik der Geschichte. Halle, 1902.

208 HISTORY OF ECONOMIC INSTITUTIONS

such a genius as Watt, and in more recent times by Gauss and Weber,
Werner Siemens, and Edison. And it is equally unnecessary to
prove the proposition that their influence upon mankind would
have been reduced to nothing had they been born, instead of in
a modern civilized country, in the interior of Africa or in Turkey, or
several centuries earlier.

It is therefore not always safe to infer from the study of earlier
conditions and events what effect the same cause would exercise
in our own time. The conformity of events to law, which in and for
itself cannot be contradicted, is not binding for us where we cannot
trace it. It is, indeed, of the utmost importance to make clear
that in political, social, and economic life such conformity to law
can be observed only to an extremely limited extent, but that chance
in particular events and the influence of the individual play every-
where the dominant role in development.

But when we survey the limited range of human knowledge, we
shall not regard it as the task of historical and economic science every-
where to search for laws. We must satisfy ourselves with tracing
regularities of sequence and with discovering, and as far as possible
isolating from the infinite mass of cooperating factors, those which
are of the first importance.

My chief object is, however, to explain clearly the attitude of
economic history toward political economy. But first its relation
to statistics must be at least briefly indicated.

The old saying of Schlozer in Gottingen, that "history is con-
tinuous statistics, statistics is stationary history," is to-day no
longer applicable. Yet strange to say, it has recently been emphat-
ically restated by Karl Menger. Although I grant at the outset that
statistics is now well established as an independent branch of study,
with a large field of investigation in the statistics of population and in
moral statistics, a field exclusively its own where it applies its own
method, it remains, nevertheless, only a method which, precisely
like the historical method, has been and still is used in almost all
sciences and especially in economic history. It must, therefore,
be most emphatically denied that the present alone is its field of
investigation. It is a systematic, numerical observation of masses,
which seeks to elicit group characteristics, and this observation of
masses can naturally be applied to the past as well as to the present.
Indeed, as is well known, this is often done in order to discover the
process of development by a comparison of different periods. When
history proceeds in this manner it utilizes both methods, the his-
torical and the statistical. The one method does not exclude the other;
on the contrary the two are combined. Only statistics, because of
its recent origin, possesses very few older data, and is therefore in the
main confined to the present which constantly offers an enormous

ECONOMIC HISTORY AND KINDRED SCIENCES 209

material for its use and demands from it the solution of ever new
problems.

Economic history has been supplemented by ethnology and
ethnography. For historical investigation finds its limit long before
the beginning of civilization, where tradition fails, while it is of the
greatest importance to study the nature of man before he has been
influenced by civilization. The savage is an extremely important
object of observation for the political economist, though unfortunately
too little studied from this point of view. Biicher in Leipzig has cer-
tainly rendered a great service in having made the attempt to trace
back the first beginnings of economic activity.

My most important task is, however, to point out the relation of
economic history to political economy, which treats of the systematic
activity of a people (or of mankind) for the satisfaction of its material
wants. Both studies consider the economic life of nations, the former
its development, the latter the nature of economic activity in gen-
eral, the theory of economic life, and in addition, in the study of
economic policy or the special, practical division of political economy,
the duties of the state in the furtherance of the national well-being.
Hence the especial task of political economy is to grasp the actual
conditions of the present, keeping in view at the same time the im-
mediate future, whereas economic history deals exclusively with the
past. Herein lies the contrast and at the same time the connection
between the two studies. The attempt has indeed been made to
bridge over the contrast by talking of contemporary history, seeking
thus to open to economic history the study of the present. Of course
all human activity which we can observe is something which has
already happened and therefore belongs to the past. But that is
a play upon words. It is indifferent to us what the study is called;
the chief thing is that it should be undertaken.

After what has been said, it will need no further discussion to
show that political economy can just as little dispense with the
study of history as can any other science. Even in the dispute of the
Vienna and Berlin schools of political economy, this has been freely
admitted and expressly emphasized by the opponents of the historical
school. Opinions are at variance solely as to whether the inductive
or the deductive method shall be regarded as the basis of investiga-
tion, and as to the extent to which the division of labor is in this
respect to be applied. Even upon this point opinions have tended
to converge. Opposition was originally made more acute by the
radical difference in the personal inclinations and abilities of the
leaders.

Schmoller as historian thought that only through historical
studies could he further his science, and while for a time it appeared
as if he were inclined to merge political economy in economic history,

210 HISTORY OF ECONOMIC INSTITUTIONS

the two volumes of his Grundriss which have recently appeared
show that he has finally convinced himself how little his historical
studies alone sufficed and how indispensable is the deductive method
of the classical school of political economy, as indeed he has repeatedly
and emphatically stated. Without this method he could certainly
not have produced the important work which we are so fortunate
as to possess. Fully, however, as I recognize the impulse which he
has given our science, I cannot admit that upon the foundation of
economic history he has erected any new edifice; rather he has
extended the original structure, given it an enlarged and firmer
foundation, and has improved and adorned its interior. He cannot
conceal from himself that his historical investigations have done
less to advance theory than its practical application, for even in his
more theoretical work (it is indeed only the allgemeine Teil), theoretical
examination of the inner nature of economic activity takes a very
minor place. But it cannot be denied that upon the road already
entered much more can be, and we confidently hope will be, reached.

Menger 1 holds that in political economy progress can be made
only by isolation of the single phenomenon, by abstraction of actual
processes, that is to say, psychologically, and that only in this
manner, not through experience and historical observation, may
exact results and economic laws be found. That by his method the
so-called classical school laid the foundation of our science, and
that to the notable work of men like Heinrich von Thiinen, Jevons,
and recently, beside Menger, Bohm-Bawerk, Wieser, Patten, we are
enduringly indebted, there can be no doubt. But it is equally certain
that what they have accomplished has been only within narrow limits
and that their methods can be applied only to a few parts of our
enormous field of investigation.

It is undoubtedly true that laws are discovered only by abstraction
from economic life, by isolation of processes and of the operation
of single factors. As the Vienna school desires to lay chief weight
in investigation upon the deductive method, and after the example
of the old school seeks to ascertain economic laws of nature, it is
clear that it would assign to economic history a merely subsidiary
role. But the student who is content to start with the view that in
political economy only certain regularities may be observed, and
that the problem is rather to determine the modifications which
civilization effects in the operation of human economic wants and to
observe the various combinations of different cooperating factors,
will strive to use the method of analogy, to study phenomena in
different periods and countries, and thus to render more acute his
judgment of the present.

1 Untersuchungen iiber die Methode der Socialurissenschaften. Leipzig, 1883.
Die Irrtumcr des Historismus in der deutschen Nationalokonomie.

ECONOMIC HISTORY AND KINDRED SCIENCES 211

If, with John Stuart Mill, we identify political economy with the
theory of value, or, with Menger, lay the chief stress in economic
investigation upon the determination of concepts of value, of money,
of wage and price regulation, we must necessarily give the preference
to the deductive method. But even here economic history can per-
form an important service. It has shown us the variations in the
value of the precious metals and of money at different periods, and
thus leads us to the causes by which value is determined as well as
to the peculiarity of the functions of money, indicating how far it
partakes and how far it divests itself of the character of a com-
modity. Only by the empirical method have we learned to under-
stand the nature of credit and the economic significance of paper
money, bills and notes. Tooke and Newmarch and others, by follow-
ing up the history of prices, have contributed greatly to a clear
understanding of price regulation. The study of wages during the
last three decades has proved to us in Germany that they are not
determined solely by the relation of demand and supply, but that in
our stage of civilization ethical considerations play an important
part, that the pressure of public opinion in favor of the working
classes is a factor in the regulation of wages and prices, which for-
merly was not at all suspected and would scarcely have been discov-
ered by the deductive method, at any rate would certainly not
have been correctly estimated, since it varies with civilization.

But the limit of the service which economic history can perform
for political economy is prescribed by the fact that in modern times
such radical changes have taken place in economic life and in our
culture that conclusions from the past can be drawn only in a very
limited degree for the present. The political economist must therefore
leave archive studies for the most part to the historian, and he must
regard it as a principle that for him the object of historical studies
is not to determine the conditions of the past in themselves, but to
take account of them only so far as they are needed to throw light
on the present. The historian may bury himself in the study of a
remote period and there remain, but the political economist must
start with the present and trace the development back as far as
appears necessary for his comprehension. Historical work is and
remains for him a secondary matter, the investigation of the present
being of prime importance. The whole contrast between the present
scientific standpoint of political economy and that of the Manchester
school lies undoubtedly in the conception that the guiding motives
of man in economic life have not remained the same, but have
experienced the utmost change through civilization, thus breaking
down the theory that human actions conform to law. On the one
hand, therefore, the necessity of studying the development of man
becomes evident, and on the other, the limited validity of the ex-

212 HISTORY OF ECONOMIC INSTITUTIONS

periences of past times for the present and naturally of the present
for the future.

We accordingly reach the result that between political economy
and economic history there exists a fundamental difference, and that
the latter must take an independent position in its relation both to
history and to political economy. There can be just as little pos-
sibility that it should be merged in history as that it should furnish
political economy with its foundation. Economic history must be
classed as an independent science, while at the same time it should
render important aid to political economy. 'It is a pressing need of
the time to establish chairs for economic history and to provide
it with liberal means so that it may fulfill its high mission more
adequately than has hitherto been possible. It should be regarded
and treated, not as an appendage of political economy, finding only
incidental and subordinate application, but as an independent branch
of study and an end in itself.

If we began with the division of scientific labor and its influence
upon the development of separate branches of study, we must now
point to the union of labor which appears a necessity even more in
science than in economic life, lest the higher aim, the fullest possible
knowledge of human nature and activity, suffer and the uniting
intellectual bond be lost.

In conclusion, let us once more briefly summarize the chief result
of our discussion.

History is the science of human development in all directions. It
commenced naturally with the organization of the state, that is,
with political events. As early as the Reformation period the devel-
opment of religious thought and legal institutions began not only to
be studied but to be brought into connection with political history.
In the second half of the eighteenth century were added the develop-
ment of art and science, the history of philosophy and of all literary
activity. Thus, more and more, was built up the general history
of civilization. Whether the starting-point should be the state or
society (as in sociology) we will not here discuss. Finally in recent
decades attention has also been directed to economic life, and it has
been recognized as a necessary supplement to history; for it has been
seen that the provision for material needs is not something unessen-
tial in human life, but that the problems thereby set mankind are
extremely complicated, requiring great ingenuity for their solution.
In recent times economic interests have acquired greater importance,
and begin more and more to dominate political life. Not without
justice has it been said that the wars of the future will be caused
by the conflict of economic interests, not as in earlier times by
questions of political power or by the ambitions of rulers. Economic
history must thus become a part of history itself, without, however,

ECONOMIC HISTORY AND KINDRED SCIENCES 213

in the least disturbing its foundation. It is undoubtedly destined
to exercise a still more important influence upon political economy,
and by a more accurate knowledge of facts and their development
to provide for it in greater degree a solid, well-built framework.
By this means economic policy or practical political economy, which
has only recently acquired an independent position, may gradually
gain a dominating importance.

In this connection America especially has lofty tasks, I might
indeed, say duties, to fulfill toward science. In no other country
has economic development progressed so characteristically, so
rapidly, and so fully under the observation of the watching, civilized
world, and this at a time when statistics are constantly giving us
instantaneous pictures of conditions. The extremely valuable and
interesting material which is thus supplied must of course be sup-
plemented by special investigations. But so far as I have surveyed
the literature, there seems to be a great lack of such special studies,
although to undertake them should be a real pleasure for every
American with economic interests. The attention of Americans,
however, has hitherto been directed, naturally enough, more to the
future than to the past.

What an instructive picture might be drawn of the effect of inven-
tions upon the transformation of industry! But as to the extent
of small industries and their importance even at the present day we
lack all information, to say nothing of the changes in the last decade.
And if such a study be made, it will certainly yield quite unexpected
results, not only for Germany but for America, and will remove
considerable prejudice.

The changes in the size of holdings of landed property and of
agricultural industry in different parts of this country, resulting
from colonization and the extension of the railroad system, and the
consequent lowering of the prices of agricultural products, are most
instructive even for purely theoretical investigation. To be sure,
statistical data alone would not suffice, least of all in the broad
averages usually given, but changes should be traced in detail for
small areas in different regions which may be regarded as typical.
We most keenly need a history of prices and wages for America.
Much that is valuable is offered to us on the financial history of the
United States, of the separate states as well as of a few municipalities,
but of the smaller towns we know almost nothing. Yet it is precisely
the comparison of these different bodies which would be of extreme
interest for the science of finance.

It would be easy to multiply examples, but I shall give only one
more here. One of the most important questions of the time is
whether the course of modern development leads to the destruction
of the middle class or whether it raises and strengthens this class. Is

214 HISTORY OF ECONOMIC INSTITUTIONS

the colossal wealth of individuals accumulated at the cost of the
lower and middle classes or is it developed concurrently with the
wealth of all classes? Opinions stand in violent opposition. A deter-
mination of the form which this relation has here taken would be
nothing less than decisive, for all the characteristics of the prevailing
tendency are here more pronounced than anywhere else and their
effects are typical, though only of course conditionally, for European
countries. The question naturally cannot be solved with the first
attempt, but it is capable of solution if all the different phenomena
of social and economic life are taken into account.

American students could do us, science, and their own country
no greater service than by devoting themselves to the historical
investigation of their own economic life. We surely on our side
shall not fall behind them in the corresponding study of European
economic history. But here also comparison and cooperation in
the labor of the two halves of the world will prove exceedingly
fruitful and even decisive for progress.

THE PRESENT PROBLEMS IN THE ECONOMIC INTER-
PRETATION OF HISTORY

BY SIMON NELSON PATTEN

[Simon Nelson Patten, Professor of Political Economy, University of Pennsylvania,
since 1888. b. May 1, 1852, Sandwich, Illinois. A.M. Halle," Germany; Ph.D.
1878. Member of American Academy of Political and Social Science, American
Economic Association. Author of Development of English Thought; Theory of
Social Forces; Economic Basis of Protection; Heredity and Social Progress, etc.]

To the man of theory and often to the man of practice the study
of history seems a useless occupation. Both have an interest in the
present and demand solution of present problems. Has history any-
thing to offer these men, and can its methods be applied to the
investigation of present conditions? At first sight the theorist gains
little from its perusal. He finds the attention of historians limited
to events of little present importance; wars occupy more space than
the avocations of peace, and personal affairs are discussed to the
neglect of social tendencies and principles.

If a reader overlooks the prolix statements of non-essentials to
which some historians are prone and seeks principles to guide present
action, what does he find but the familiar assertion, " History repeats
itself"? Driven back from history, the searcher for present guidance
once more resorts to theory, in the hope that some light may be struck
that shows the road he is blindly seeking. But all in vain.

Is there no link between these two disconnected methods of
research? Must the past be interpreted by a method that yields no
valuable results and the present by a method that discards all
reference to the past?

This opposition and these defects continued for a long time before
any remedy was suggested. Historians sneered at the theorist, and
the economist had an openly expressed contempt for those who
did not use his methods. It is only of late that a new method of
research has arisen, giving to history a wider meaning and offering
to the economist a test for his theories.

Progress in this direction has, however, been slow. The historical
appetite for facts is in a measure satisfied by the study of the eco-
nomic conditions of earlier times. It acted as a limitation on theo-
rizing to know that the conditions economists emphasized as parts
of a perpetual economy were of recent origin and have application
to but a small section of humanity. The doctrines of free com-
petition, personal liberty, free trade, individual bargaining, and like
tenets of the current economic philosophy thus lost their position

216 HISTORY OF ECONOMIC INSTITUTIONS

of supremacy, and sunk into the company of the minor doctrines
that are plainly limited by time and space.

The resulting changes in mental attitude are in a large measure
due to the efforts of the historical economists, who taught the limit-
ations to which all economic doctrines are subjected. Yet in spite
of a breadth of view and great command of facts, they did not destroy
the old School, but merely compelled its adherents to make more
modest statements. This failure was due to the lack of a method of
historical interpretation in harmony with the facts they were using
and the conditions they were investigating.

Economic history and the economic interpretation of history
are different concepts, and have been forced upon public attention
by two different groups of thinkers. Economic history is a question
of facts — of the discovery and utilization of those facts of yesterday
of which the economist of to-day avails himself. The economic
interpretation of history is a study of these data and of the method
of utilizing them. It enables us to reason about past events in the
same way we reason about present events, and to find common prin-
ciples that will apply to both. Economic dogmatism concentrates
attention on the dominant features of a given age or nation. Economic
interpretation eliminates dogmatism by comparing the dominant
features of many ages, and clearly presents their points of difference
and similarity. In this way a new theory arises, with a broader basis
and more closely in touch not only with history but also with the
sciences from which the economic premises come.

There are, however, two diverging lines of thought, each of which
is called an economic interpretation of history. One group of men
ask: What light can history throw on present events? Their interest
is in the present, and they use history as a method of interpreting
it. The other group ask: What light can our knowledge of present
events and conditions throw on those of past ages? The first group
assumes a knowledge of the past superior to that of the present
and hopes to use this knowledge to clear away the difficulties of
interpreting contemporary events. The second group contends that
our knowledge of present economic conditions is greater than that
of past ages and hence that it can help us to supplement our meagre
knowledge of the past.

If we wish to be accurate in the use of terms, this first viewpoint
should not be called an economic interpretation of history, but an
historical interpretation of the present. That which is interpreted
is not history but current events, while the method used is not eco-
nomic but historical. It is only the second viewpoint that attempts
to interpret history, and does it by an economic method.

It will add to the clearness of the contrast if the term " history "
be eliminated. History in both cases is used in a popular way, and

PRESENT PROBLEMS 217

as a result its interpreters fall into a needless conflict with those
historians who want the facts of the past rather than their present
significance.

It would be clearer to speak of the social interpretation of current
events instead of the historical interpretation. Those who employ
this method are interested in social affairs and use social methods
of investigation and social principles oftener than historical methods
and principles. It is still more clear to speak of the traditional
interpretation of current events. The facts presented and the
ideals emphasized are those which, wrought over into popular tra-
dition, have become motives prompting intuitive response. The
popular historian seizes the telling events of the world's history
and by recounting them vividly tends to make people act to-day
as their forefathers acted in the epoch-making struggles through
which the race has gone. " Act to-day as your fathers acted in their
day." This advice may seem the hand of history, but it is the voice
of tradition. The economic interpretation of history starts with
an analysis of present conditions and opens the way to a theory
of social causation. In contrast with this method the historical
interpretation of present events accepts the traditional view of the
past and uses social prediction as a means of exerting social influence.
The prophet strives to be a social leader. Economic interpretation
as a method thus stands in contrast with social prediction. There
is no real opposition between economics and history or between eco-
nomics and sociology. It is only in the field of prediction that opposi-
tion appears. The scientific historian avoids the conflict by refusing
to predict, but as the historian becomes modest, the social enthusiast
becomes bolder, and, using the same methods as the predicting his-
torian, he falls into similar errors.

Should social investigation begin with a study of the past and
predict events from it as a base, or should a study of the present be
first made and its results be used to interpret the past? Of the past
we have social tradition; of the present we have economic knowledge;
which is the more reliable as the basis of deduction?

Were not the knowledge of the past defective, its study might
give a starting-point equally valuable with economic interpretation
that starts from the firm foundation of present fact. The first canon
of social prediction is, "History repeats itself." A series of repeated
effects occurring under similar social institutions gives ground for the
judgment that these institutions will always produce like effects.

In contrast with this, economic interpretation starts with the
assumption that like economic causes produce like social results.
Prediction can be made from one race or civilization to others only
as the economic conditions back of them are the same. It is not like
race, like institutions, like tradition, or like consciousness of kind,

218 HISTORY OF ECONOMIC INSTITUTIONS

but like economic conditions that give a sound basis for prediction.
Social prediction is of necessity based on data drawn from different
races, institutions, and civilizations. This evidence has little value
unless a similarity of economic conditions exists as the antecedent
of race, institution, or civilization. An economic interpretation of
past events must therefore precede valid prediction.

There are two channels in which thought runs and two bases
on which it rests. The physical environment of a man is made
up of objects upon which welfare depends. The force that per-
petuates and increases this contact is desire. No object is a part
of the conscious environment of men until they desire it or the
means of avoiding it. Thought based on desire or arising out of its
influence is plainly economic. But thought has another element not
derived from the immediate objects of interest. This is tradition.
Past conditions and events do not persist. The events and condi-
tions of to-day cease with to-day, but new ones appear to-morrow.
Economic conditions are thus short-lived, but the habits and thoughts
that yesterday's conditions evoked live on and modify the present.

The newer biology makes the distinction between natural and
acquired characters and affirms that the latter are not inherited.
All acquired knowledge must pass from generation to generation by
the repeated impressment of habits and thought upon the individuals
of succeeding generations. This knowledge depending on constant
repetition for its continuance is tradition, and imitation is its great
vitalizing force. Economic thought is the social expression of desire
as tradition is the social expression of imitation. These two forces
control current events, and the differing interpretations of the past
and the present depend upon the relative emphasis given them.

Professor Giddings has shown that the stimuli arousing activity
are of two orders.1 The original stimuli come from the immediate
environment; the secondary stimuli are the products of past social
life kept alive in the present. These products of past social life have,
however, only one way of being continued, and that is through
the constant repetition that creates tradition. The original stimuli
also are of no importance unless they awake response, and this
response is desire.

Changing the viewpoint from stimuli to that of response to stimuli
makes desire and tradition the sole forces that determine present
action. In this contrast tradition includes all of the products of
past responses that have been continued through imitation rein-
forced by repetition. These traditions blend, and as they blend
they become the basis of history, institutions, and ideals. Desire
operating under favorable conditions creates mobility of men and

1 " A Theory of Social Causation," a paper read before the American Economic
Association at the New Orleans meeting.

PRESENT PROBLEMS 219

goods. This mobility concentrates men in productive regions, who
bring with them the traditions of the localities they leave. The
mixing of population forces a blending of traditions. Opposing
elements are suppressed while similarities are emphasized, and around
them the old traditions cluster in new forms. These blended tradi-
tions are elevated into morality, broadened into ideals, and pro-
jected as standards of future action.

Each new mingling of population due to an increase of resources
makes a breach between economic conditions and inherited social
traditions. Before an equilibrium is reestablished a transformation
of tradition takes place, giving higher ideals and better institutions.
The breach between economic thought and social idealism is thus
steadily widened and the opposition between them is more pro-
nounced. In its lower forms tradition is the result of conflict, and
reflects the opposition arising when men contest for the meagre results
of isolated localities. It is usually expressed in race feelings and
hatreds. In its higher forms, however, tradition is an expression
of likeness. A consciousness of opposition and fear is replaced by
a consciousness of kind.

Each element in a composite population has its own traditions,
which blend with other traditions only when the common points are
emphasized and the antagonisms are suppressed. The oft-repeated
stories of the old life are retold so as to interest larger audiences.
To each group of hearers the newly told story can have a meaning
only when it incorporates some of the tradition with which it is
familiar. Writers and orators instinctively suppress points of dis-
cord, and blend and elevate what appeals to all. Tradition is thereby
transformed into idealism, and becomes a standard far above that
realized by individual men.

Government in England, for example, is plainly a group of tra-
ditions. Transferred to America it becomes political institutions,
transferred again to cosmopolitan France it appears as political
ideals, while in centralized Germany it is further transformed into
social democracy. Each step has resulted from the discarding of
local antagonisms and the emphasis of generalized truth.

Because of the simple conditions under which the Republican
party arose it could concentrate its attention on three evils, Rum.
Romanism, and Rebellion; but in recent years, to meet the condi-
tions of a more composite population, it has been forced to elevate
its standards and to generalize its principles until it appeals to the
classes, sections, and races it formerly antagonized. The narrow
tradition of the primitive American is thus transformed into a broad
liberalism, and the American Government becomes capable of
handling race problems that our forefathers left untouched.

A labor leader who undertakes to organize unskilled laborers

220 HISTORY OF ECONOMIC INSTITUTIONS

finds a race consciousness built up on race antagonism. When
his thought is translated into the language of his hearers, words
are used which express the hatreds surviving as race traditions.
The employer is associated witn the foreign misrule, and the pent-up
feelings which in their old homes went out against their race oppress-
ors are turned upon him. A class consciousness is thus developed
that submerges the race antagonisms of earlier epochs and prepares
the way for a broader citizenship. Race responses are replaced
by class responses, and these by social cooperative responses, which
in turn are elevated into a democratic cosmopolitanism. Every
transformation of tradition gives to its standards a greater coercive
force. The result is idealism which by covering the future as a social
projection gains a universality akin to religion.

Social mobility arises from the pressure of increasing desire;
social stability from the growth of tradition. Social projection
is the union of the two to be realized only in the distant future.
With these forces at work there can be a steady transformation of
tradition from a crude form of ancestor worship to an attractive
social Utopia where all ideals become realities.

I give below some of the stages through which thought passes
during this transformation. In a rough way they indicate the line
of progress though no claim is made to strict accuracy:
Imitation, Biography,

Tradition, History,

Ancestor worship, Romanticism,

Hero worship, Literary lore,

Primitive poetry, Individualism,

Precedents, Idealism,

Codes, Social democracy,

Morality, Social projection.

Social democracy fixes the attention on the present, and hence
tends to emphasize the distribution of wealth. Social projection
pictures an improving future, and concentrates interest more on the
accumulation of the wealth and the bettering of industrial pro-
cesses than on its distribution and consumption.

I hope it has now been made clear that the traditional inter-
pretation, the historical interpretation, the social interpretation, and
the idealistic interpretation of current events are practically the
same. They differ from one another only in the degree that the
idealistic transformation of thought has taken place. They all
strive to influence the present and to improve human conduct through
the study of past examples. The blending of traditions accomplishes
this result, and hence tradition and history pass over into idealism
by easy stages. Economic practice becomes tradition and tradition
is restated until it is transformed into institutions, ideals, and social

PRESENT PROBLEMS 221

principles. All this helps to make good conduct, but it is not a
safe basis for prediction.

We cannot accept this traditional interpretation because tradition
has been transformed by its growth. Still less can we accept an
"economic" interpretation of current events because other than
economic causes have helped to shape the present. The " all eco-
nomic " or material interpretation of the present is defective because
it neglects the effect of heredity and tradition on human conduct.
The traditional or idealistic interpretation is likewise defective
because it neglects the changes in economic conditions that make
present sequences in events different from those of the past. Through
the economic interpretation of the past the similarities and differ-
ences in present and past conditions are brought to light" and the
limitations to social prediction become manifest.

Nor is economic interpretation the method of economists as
opposed to that of historians and of sociologists. Economists are
bound as tightly as other thinkers by the chains of tradition. The
rapid development of the Ricardian tradition is evidence of this.
Nor is the new thought exclusively the work of economists. Von
Ihering's Evolution of the Aryan stands the tests of economic
interpretation better than does the work of Karl Marx. The theory
of exploitation is the transformation of a class tradition into a form
of idealism. This is of social importance, but not an economic law.

I give below some of the canons of economic interpretation, so that
the validity of social creeds may be more easily measured. Economic
interpretation tests these as science tests the miraculous in nature.

(1) Like economic causes produce like social effects.

(2) Progress depends on the increase of resources.

(3) An economic interpretation of past events must precede an
historical interpretation of present events.

(4) Economic interpretation must precede social prediction.

(5) Social causes have economic antecedents.

(6) A study of economic epochs should precede a study of nations
and races.

(7) Traditions blend which in their union strengthen and elevate
each other.

(8) The greatness of men is due not to their moments of inspira-
tion, but to the conflicting disciplines to which they have
been subjected.

Much of the present confusion of thought would be obviated
if it were kept in mind that progress depends on an increase of
resources. In the study of an epoch or nation it must first be deter-
mined whether resources are decaying or improving. The decline
of Rome was inevitable as soon as Italian resources fell off. Rome
could extend its rule by conquest and make individuals and even

222 HISTORY OF ECONOMIC INSTITUTIONS

armies wealthy by plunder, but this burden ori the conquered races
helped their decline, which in turn further weakened the Roman
State.

It was the long, steady pressure of decaying resources that crushed
Rome, as it has crushed other nations similarly situated. Immoral-
ity and extravagance hurt to-day, but they have little permanent
influence if the creation of wealth has gone on unimpeded. Each
age brings up new men under the discipline of work, and their
descendants give tone to the succeeding age. Should they drop out
through wrong-doing, their places are filled by a new generation
of workers, as new blades of grass come in the place of those cut.
Give rain and we have grass; give work and we have men.

We need not go beyond the domain of geography to seek the
error in the social and historical lore that is made the basis of current
prediction. The region occupied by the Western civilizations of
the Old World is divided into two parts, by the Alps and the chains
of mountains that extend eastward. Asia Minor, North Africa, and
the south slope of Europe are thus one geographical unit. The
north of Europe forms a similar geographic unit.- The Gulf Stream
gives up its moisture to the northern plain. The westerly winds
in the central basin are dry, bringing little moisture from the ocean
beyond. Droughts are common and the source of great misery.
The vast northern plain suffers from an excess of rain and from
a lack of sun. Its crops, like the cereals, can stand plenty of rain,
while root crops prevail in the central basin where heat and sun are
abundant though rain is deficient. I need not go into details to show
that these two regions stand in marked contrast, and that scarcely
a physical feature which is important in the one prevails in the
other. If economic forces count, these two regions should produce
radically different civilizations, institutions, and social traditions.

The German differed essentially from the Roman when the two
civilizations came in contact. But as the southern civilization
proved superior, the traditions, institutions, and culture of the south
were impressed on the north, and so thoroughly has this work been
done that the imposed institutions and social traditions now seem
a second nature. We have so completely exchanged ancestors
that we think in the terms of the Roman, Greek, and Semite rather
than in terms of the German. We accept as precedents the traditions
developed to meet the conditions of the dry, hot south and forget
to test them by a comparison of the two environments. Roman
precedents are good in North Europe only in so far as their physical
characteristics are the same.

Viewed in this way it will be seen how completely predictions
based on the conditions of the south fail when applied to the north.
The history of the southern regions shows a succession of races and

PRESENT PROBLEMS 223

nations, each having a period of prosperity followed by a period of
decay and a final disappearance. That nations have a period of
youth, manhood, and decay — that the history of each individual
life is repeated in the history of nations — is a view based on the
economic conditions of Southern Europe and Western Asia.

But is this law of the rise and decay of nations a general law
or a peculiarity of the region where southern civilization arose?
It is plainly a local law. I have only to show that the slight rain-
fall of these regions has geologic causes in order to demonstrate that
the decline of nations was due neither to social conditions nor failings,
but was the inevitable result of changed climatic conditions.

Progress is due to the increase of resources; decline in civilization
follows a failure of resources. A tragic end awaits a nation cramped
by a reduction of the food supply. There are many ways of proving
this, but I shall take a bold one that demands some imagination.
The land masses of this central basin seem in early historic epochs
or in those that immediately precede them to have risen to higher
levels, converting many depressions occupied by lakes and seas into
sandy wastes. Lower the level of the Sahara by five hundred feet
and it would become an inland sea. When this region was covered
with water the southwest winds were moist and carried abundant
rains to the eastern plateaus. Arabia and Persia could then have
lakes where now there is only blowing sand. The high lands would
have a verdant foliage and be fit centres for growing nations.

When civilized men gained a foothold in this region the elevation
of land may have been completed and the decline in rainfall begun.
The uplands would so become fine grazing land and the lowlands
would be centres of agricultural activity. Careless tillage and the
destruction of trees would increase the natural denudation of the
uplands and render them less habitable. This would force an unrest
in the upland population, a movement to lower levels and a struggle
for their possession. This contest, once begun, would be a perpetual
process. Each downward movement of population would develop
a new civilization, enduring until another unrest in the highlands
brought a new horde of barbarians to destroy it and in turn to
develop a new one. Region after region was thus denuded and
civilization after civilization fell before the steady pressure of the
upland races forced out of their habitat by the increasing dryness.
A decreasing rainfall and an increasing denudation of land forces
nations to move rapidly through the various stages of progress
and in the end crushes them through the lack of resources.

There is, therefore, a long series of these short-lived nations,
each repeating the other's history, because back of them were the
same processes of growth and decay. The tradition of these se-
quences is the basis of the maxim that history repeats itself, while

224 HISTORY OF ECONOMIC INSTITUTIONS

•

the struggles to resist invasion by developing the hero idea gave
rise to the modern notions of character. But the law is neither
an historical nor a social law; it is merely the pressure of geologic
changes on the civilization of a given region. Outside of the great
central basin the law fails of verification because the climatic con-
ditions are altered.

In marked contrast with these climatic conditions are those of
the great northern plain of Europe. A rank vegetation keeps up the
fertility and usually replaces what is lost. Each generation sees
North Europe more productive and capable of supporting a larger
population. Growth and stability will thus be a characteristic of
the northern nations so long as the Gulf Stream flows. They have
a perpetually improving economy, giving a firm basis for enduring
social institutions.

No nation of North Europe goes down as the southern nations
went down one after the other. A reconstruction of national bound-
aries often takes place; but with each reconstruction comes a period
of renewed growth and prosperity. France has been the only appar-
ent exception. Instability in government followed its great social
revolution and gave to traditional views a new life. But order and
stability have again been restored and the steady progress of France
compares favorably with other nations.

If this be true the traditional view of the course of history needs
correction and the mass of southern traditions imposed on northern
nations by the new civilization that Christianity brought must each
be tested by means of a comparison between the conditions under
which it arose with the conditions that now prevail. The narrowness
and defects of southern traditions will then be exposed and the
ground cleared for a new view of history based on the conditions
and experience of North Europe.

The realization of this great break in economic conditions, due
to the transference of civilization from the south to the north of
Europe, and the consciousness that many of our cherished traditions
are abnormal, help us to a fruitful study of present conditions. A
new break of similar magnitude has been made by the transference
of civilization to America.

The civilizations of North Europe are enduring because their
basis in climatic conditions is secure; but while enduring, they are
narrow and cramped because their food resources are so limited.
A wet, cold climate is good for grass and the cereals, and therefore
bread and meat become the standard of life. The pressure of popu-
lation has raised their price and kept the common people poor and
dependent. Under these conditions a civilization could continue,
but not without great abnormalities due to high prices. All these
restraints were escaped in America, and for the first time a natural

PRESENT PROBLEMS 225

level of food prices permits a normal development of civilization.
Not only has America a better food supply than Europe, but the
barriers to commerce have been so far broken down as to make the
food supply of the whole world available at our great centres.

A new civilization is now possible to which those of the past
can offer few analogies. Individual struggle has practically ceased.
A sufficiency of food comes to the unskilled laborer, and the increase
of population, even when augmented by a million immigrants a
year, does not increase the pressure. We have higher standards
to-day with 80,000,000 people than we had two generations ago
with 40,000,000 people, and we could support 300,000,000 with as
great ease and with as little individual struggle. Surely this is
a break of a magnitude that the world has never before seen, and
should be followed not only by a great uplift in social standards
but also by changes in traditions, institutions, and ideals that will
separate our civilization from its predecessors and give it not only
perpetuity but breadth.

The facts on which this judgment rests are so familiar that they
will, I fear, make dry reading. Our resources and growth have been
often pictured, but men do not realize what they mean. They think
of our traditions, institutions, and ideals, transferred in the main
from other civilizations, as unchangeable possessions, and fail to see
the growth and transformation through which all things social go.
I must repeat these familiar facts, however, to make my point
as to the present importance of the economic interpretation of
history.

The Great Central Plain of North America is a vast storehouse
of food. We have the wheat that Europe has, but we have it more
abundantly. We have more extensive grazing regions, and with
corn for fodder have superior facilities for raising cattle. Pork
never took its proper place in the diet of the world until the great
cornfields of the West came into existence. Of all these staple
articles of ancestral diet vast quantities more might be raised without
putting undue pressure on the soil. Our warm summers and clear
climate make root crops even more productive than the cereals.
To think of the changes in diet that the cheapening of sugar has
made is to realize in a measure what an increase of population will
follow the full utilization of available root crops. We have com-
bined the resources on which the civilization of North Europe de-
pends and those which made the ancient civilizations of the South.
The emigrants from South Europe find here a possible diet like
that of their home countries, and in its use they evoke qualities
in our soil that lay dormant as long as the Northern races were fed
from it.

In addition to these home possibilities the nearness and access-

226 HISTORY OF ECONOMIC INSTITUTIONS

ibility of the semi-tropical regions, of the West Indies and Central
America, make many new foodstuffs available and in quantities
practically unlimited. Measured in food, these regions can support
as great a population as can the United States, and cost is less than
that of the home supply. We need only a fruit and a vegetable-loving
population to utilize these new food materials, and it is at hand in the
emigrants from Southern and Central Europe, who already have
habits and traditions favorable to a vegetable diet. Surely, then,
their influence will cause a break in Anglo-American traditions and
a nearer approach of the American diet to the possibilities of Ameri-
can conditions.

This food supply could not be made available nor could the
absorption and assimilation of Southern races take place without
the recent cheapening of the cost of transportation. Even delicate
fruits can be carried halfway round the world at a reasonable cost,
and with ice and cold storage they can be evenly distributed through-
out the year. The new diet can therefore have a freshness and
variety superior to any before available.

Coincident with this improvement in food and transportation
have come social betterments that have lengthened life and made
people more healthy. Great scourges like the medieval plagues
are no longer possible, and fevers are so well under control that
they have ceased to be grievous afflictions. A normal length of life
is for the first time possible to the working p6pulation; and when
traditions of hygiene and right living have developed among them,
suffering from ill health will be a negligible quantity.

To attain all these advantages, a rapid increase of capital is neces-
sary; and fortunately the growth of the saving instinct has kept pace
with other improvements. A slight change in the rate of interest
calls forth capital enough for our great enterprises. There is as
little limit to its growth as there is to our other resources. When
it is freely used by healthy, well-fed men, civilization enters a stage
distinct from any of its past forms.

Food, health, capital, and mobility of men and goods are the
four essentials to progress. All of them are now abundantly supplied
and capable of indefinite increase. Must not this be the basis of a
great social transformation, changing our institutions, habits, and
traditions until they establish a social adjustment as complete as the
present economic situation permits? If there was a break in tradi-
tions, institutions, and ideals when civilization moved from South-
ern to Northern Europe, a still greater crisis is before us when Ameri-
can civilization matches American possibilities. History repeats
itself when economic conditions remain static, but the crude appli-
cation of its maxims aggravates evils when economic transformations
are in progress.

PRESENT PROBLEMS 227

The picture I have drawn of economic changes will not be com-
plete without a third illustration of the limits of social prediction.
Progress having hitherto been on race lines, tradition emphasizes
the idea of race supremacy. Sharp distinctions have been drawn
between nations and their habitats; and one's own kindred are
assumed to be right, while strangers and enemies are wrong. The
mountaineer is pronounced superior to the plainsman, the country-
man to the urban dweller, and the men of cold regions to those of
hot climates. Buckle's contrast between the emotional East and
the intellectual West is a Western tradition without geographic
truth. Just as baseless is the dictum that political stability is impos-
sible south of the frost-line.

It is also claimed that civilization must be Teuton or Anglo-
American in racial quality, and that its environment is a narrow
strip of the temperate zone in North Europe and America. But
in fact the barriers to the expansion of civilization on which these
traditions rest have been swept aside. More than ever civilization
is economic, and far more extensive than before are the geographic
bases of material prosperity. The essentials of progress — security,
food, health, capital, and mobility of men, of goods, and of thought
— are now found in many regions outside the wheat-belt of the north
temperate zone, and other races than the Germanic possess the
combination of essentials and benefit by it. The expansion of civil-
ization to new places and races has begun, and will not end until
the level of Southern and Eastern life has been raised to that of the
North and West. Cuba and Porto Rico have to-day better condi-
tions than Virginia had two centuries ago, and in Japan is a happier
combination of essentials than could have been found in Elizabethan
England. Surely if England and Virginia could make men under
their conditions, Japan and Cuba can likewise attain the level of
our present civilization.

Great as is the good that flows from the bettering of economic
conditions, a still greater springs from race assimilation and the
blending of traditions that succeeds economic contacts. Society is
perpetuated through its traditions rather than through its heredity.
Mobility of goods is less necessary to a general advance than is mobil-
ity of thought. By contact we shall raise our own ideals and gain
as much as the Eastern and Southern races will. Religion, morality,
political institutions, public law, and literature will all be revivified,
lifted, and freshly idealized.

The intellectual and national awakening of the races of Southern
and Eastern Europe and of Japan shows the presence of a leaven
that will transform their static traditions into dynamic forces more
vivid than those of the Anglo-American. And the moral awakening
in England and America which demands fair play and justice for

228 HISTORY OF ECONOMIC INSTITUTIONS

men of other races and lands is an index of a broadening and elevating
influence that will delocalize Anglo-American traditions and make
us truly cosmopolitan. Such interruptions and transformations
of tradition narrow the realm of social predictions as strictly as do
the modifications of economic conditions.

The present crisis demands a knowledge of the transformation
in tradition when breaches occur between it and the economic situa-
tions in which it arose. But we cannot safely go into an unknown
future with a mere knowledge of present economic conditions. Nor
can we safely follow the traditions of the past formulated as the
basis of historical and social prediction. We must study the past
through the present and the present through the past. This is
economic interpretation, and it is a vital present need.

BIBLIOGRAPHY OF DEPARTMENT OF HISTORY '

ANCIENT HISTORY

GENERAL

DUNCKER, M., Geschichte des Alterthums.
LENORMANT, F., Histoire Ancienne de 1'Orient.
MAHAPFY, J. P., Prolegomena to Ancient History.
MASPERO, G. C. C., Histoire Ancienne des Peuples de 1'Orient.

Dawn of Civilization.

Struggle of the Nations.

Passing of the Empires.
MEYER, E., Geschichte des Alterthums.
RAWLINSON, G., Five Great Monarchies.

Sixth Great Oriental Monarchy, Parthia.
Seventh Great Oriental Monarchy, New Persian Empire.
SCHRADER, O., Sprachvergleichung und Urgeschichte.
SEIGNOBOS, C., Les Anciens Peuples de 1'Orient.
WELZHOFER, H., Allgemeine Geschichte des Altertums.

BABYLONIA AND ASSYRIA
HOMMEL, F., Geschichte Babyloniens und Assyriens.
OPPERT, J., Histoire des Empires de Chaldee et d'Assyrie.
TIELE, C. P., Babylonisch-Assyrische Geschichte.

ARABIA

FLUGEL, G., Geschichte der Araber.

KREMER, A., Culturgeschichte des Orients unter den Chalifen.

MUIR, SIR W., Annals of the Early Caliphate.

Life of Mahomet.

Rise and Decline of Islam.
SEDILLOT, L. P. E. A., Histoire Ge'ne'rale des Arabes.

CHINA AND JAPAN
ADAMS, F. O., History of Japan.
BASTIAN, A., Die Volker des Ostlichen Asien.
BOULGER, D. C., History of China.
GRIFFIS, W. E., The Mikado's Empire.
KAUFFER, J. E. R., Geschichte von Ost-Asien.
KOCH, W., Japan: Geschichte nach Japanischen Quellen.
METCHNIKOFF, L., L'Empire Japonais.
RATHGEN, K., Japans Volkswirtschaft und Staatshaushalt.
REIN, J., Japan nach Reisen und Studien.
WILLIAMS, S. W., The Middle Kingdom.

EGYPT

BRTJGSCH, H., Geschichte Aegyptens unter den Pharaonen.
BUDGE, E. A. W., History of Egypt.
MAHAFFY, J. P., Empire of the Ptolemies.
PETRIE, W. M. F., History of Egypt.
WIEDEMANN, A., Aegyptische Geschichte.

1 For universal histories, see under Modern History.

230 DEPARTMENT OF HISTORY

GREECE

ABBOTT, E., History of Greece.
BELOCH, J., Griechische Geschichte.
BURY, J. B., History of Greece to death of Alexander.
BUSOLT, G., Griechische Geschichte.
Cuimus, E., Griechische Geschichte.
DROYSEN, J. G., Geschichte des Hellenismus.
DURUY, V., L'Histoire des Grecs.
FREEMAN, E. A., History of Federal Government.
FUSTEL AE COULANGES, La Cite1 Antique.
GREGOROVIUS, F., Geschichte der Stadt Athen.
GROTE, G., History of Greece.
HOLM, A., Griechische Geschichte.
LLOYD, W. W., Age of Pericles.
MAHAFFY, J. P., Greek World under Roman Sway.

Problems in Greek History.

Progress of Hellenism in Alexander's Empire.

Survey of Greek Civilization.

MULLER, I. VON, Handbuch der Klassischen Altertumswissenschaft.
NIESE, N., Geschichte der Griechischen und Makedonischen Staaten
SCHOMANN, G. F., Die Verfassungsgeschichte Athen's.
TSOUNTAS, C., and MANATT, J. I., The Mycenaean Age.

INDIA

ELLIOT, SIR H. M., History of India.

HUNTER, SIR W. W., Indian Empire: its Peoples, History, and Products
LEFMANN, S., Geschichte des Alten Indiens.
MILL, J., History of British India.
WHEELER, J. T., History of India.

JEWS

EWALD, H., Geschichte des Volkes Israel.
GRATZ, H., Geschichte der Juden.
KITTEL, R., Geschichte der Hebraer.
REINACH, T., Histoire des Israelites.
RENAN, E., Histoire du Peuple d'Israel.

MONGOLS, PERSIA, AND PHOENICIA
HOWORTH, H. H., History of the Mongols.
GOBINEAU, J. A. de, Histoire des Perses.
JUSTI, F., Geschichte des Alten Persiens.
PIETSCHMANN, R., Geschichte der Phonizier.
RAWLINSON, G., History of Phoenicia.

ROME

ARNOLD, W. T., Roman System of Provincial Administration.
BURY, J. B., History of the Later Roman Empire.
DURUY, V., Histoire des Romains.
FREEMAN, E. A., History of Sicily.

FRIEDLANDER, L., Darstellungen aus der Sittengeschichte Roms.
GIBBON, E., History of the Decline and Fall of the Roman Empire.
HODGKIN, T., Italy and her Invaders.
IHNE, W., Romische Geschichte.
KUHN, E., Der Stadtische und Biirgerliche Verfassung des Romischen Reichs.

BIBLIOGRAPHY 231

LONG, G., Decline of the Roman Republic.

MADVIG, J. N., Verfassung und Verwaltung des Romischen Staates.

MARQUARDT, K. J., and MOMMSEN, T., Handbuch der Romischen Alterthiimer.

MERIVALE, C., History of the Romans under the Empire.

MOMMSEN, T., Romische Geschichte.

Provinces of the Roman Empire,

Romische Forschungen.
NIEBUHR, B. G., Romische Geschichte.
SCHILLER, H., Geschichte der Romischen Kaiserzeit.
SCHWEGLER, A., Romische Geschichte.
THIERRY, A., Tableau de 1'Empire Remain.
WILLEMS, P., Le Droit Public Romain.

Le S6nat de la R£publique Romaine.

MEDIEVAL HISTORY1

ADAMS, G. B., Civilization during the Middle Ages.

ASSMANN, W., Geschichte des Mittelalters.

BRYCE, J., Holy Roman Empire.

BURCKHARDT, J., Die Zeit Constantins des Grossen.

DAHN, F., Urgeschichte der Germanischen und Romanischen Volker.

DELARC, O., Saint Gregoire VII et la Re"forme de 1'Eglise au XI e siecle.

DURUY, V., Histoire du Moyen Age.

EMERTON, E., Mediaeval Europe, 814-1300.

FISHER, H. A. L., The Medieval Empire.

FREEMAN, E. A., Historical Geography of Europe.

GEFFCKEN, F. H., Staat und Kirche.

GFRORER, A. F., Pabst Gregorius VII und sein Zeitalter.

GREGOROVIUS, F., Geschichte der Stadt Rom im Mittelalter.

GUIZOT, F. P. G., Histoire des Origines du Gouvernement repre"sentatif en Europe.

HALLAM, H., View of the State of Europe during the Middle Ages.

HIMLY, A., Histoire de la Formation Territoriale des Etats de 1'Europe Centrale.

KINGSLEY, C., The Roman and the Teuton.

KUGLER, B., Geschichte der Kreuzziige.

MICHATTD, J. F., Histoire des Croisades.

MILMAN, H. H., History of Latin Christianity.

MONTALEMBERT, C., Les Moines d'Occident.

NIEHUES, B., Geschichte des Verhaltnisses Zwischen Kaiserthum und Papstthum

im Mittelalter.

PALLMAN, R., Geschichte der Volkerwanderung.
PFLUGK-HARTTUNG, J. v., Geschichte des Mittelalters.
PRUTZ, H., Kulturgeschichte der Kreuzziige.
SAVIGNY, F. C., Geschichte des Romischen Rechts im Mittelalter.
SCHULTZE, V., Geschichte des Untergangs des Griechisch-Romischen Heiden-

tums.

SECRETAN, E., Essai sur la Fe'odalite'.
STUBBS, W., Study of Mediaeval and Modern History.
SYBEL, H. VON, History and Literature of the Crusades.
WIETERSHEIM, E. VON, Geschichte der Volkerwanderung.
ZELLER, J., Entretiens sur 1'Histoire du Moyen Age.

1 For history of individual countries see under Modern History of Europe.

232 DEPARTMENT OF HISTORY

MODERN HISTORY

(INCLUDING SOME UNIVERSAL HISTORIES OF WHICH INDIVIDUAL VOLUMES ARE

GIVEN UNDER SPECIAL COUNTRIES)
ALISON, SIR A., History of Europe from 1789 to 1815.

History of Europe from 1815 to 1852.

ANDREWS, C. M., Historical Development of Modern Europe.
ANNUAL REGISTER.

BULLE, C., Geschichte der Neuesten Zeit.
CAMBRIDGE MODERN HISTORY.
CREIGHTON, M., History of the Papacy.
DYER, T. H., History of Modern Europe.
FISHER, G. P., The Reformation.
FLATHE, T., and others. Allgemeine Weltgeschichte.
FYFFE, C. A., History of Modern Europe.
GERVINUS, G. G., Geschichte des 19ten Jahrhunderts.
GINDELEY, A., Geschichte des Dreissigjahrigen Krieges.
HAUSSER, L., Geschichte des Zeitalters der Reformation, 1517-1648.
HEEREN, A. H. L., and others, Geschichte der Europaischen Staaten
HELMOLT, H. F., ed., Weltgeschichte.

LAVISSE, E., and RAMBAUD, A. N,, Histoire Ge"n6rale du IV e Sifecle & nos Jours.
LOWELL, A. L., Governments and Parties in Continental Europe.
MAY, SIR T. E., Democracy in Europe.
MULLER, W., ed., Politische Geschichte der Gegenwart.

Politische Geschichte der Neuesten Zeit.

NOORDEN, C. VON, Europaische Geschichte im Achtzehnten Jahrhundert.
ONCKEN, W., ed., Allgemeine Geschichte in Einzeldarstellungen.
PASTOR, L., Geschichte der Papste.
RANKE, L. VON, Sammtliche Werke.

Weltgeschichte.
RAUMER, F. VON, Brief e aus Paris zur Erlauterung der Geschichte des 16ten

und 17ten Jahrhunderts.

Geschichte Europas seit dem Ende des 15ten Jahrhunderts.
SCHLOSSER, F. C., Geschichte des 18ten Jahrhunderts und des 19ten bis zum

Sturz des Franzosischen Kaiserreichs.
SCHULTHESS, H., ed., Europaischer Geschichtskalender.
SEIGNOBOS, C., Histoire Politique de 1'Europe Contemporaine.
STAATENGESCHICHTE DER NEUESTEN ZEIT.
STERN, A., Geschichte Europas, 1815-1871.
WEBER, G., Allgemeine Weltgeschichte.
WILLIAMS, H. S., ed., Historian's History of the World.

ENGLAND AND SCOTLAND

ASHLEY, W. J., Introduction to English Economic History and Theory.
BREWER, J. S., Reign of Henry VIII.
BROWN, P. H., History of Scotland.
BURTON, J. H., History of Scotland.

History of the Reign of Queen Anne.
FREEMAN, E. A., History of the Norman Conquest.

Reign of William Rufus.

GAIRDNER, J., History of the Life and Reign of Richard the Third.
GARDINER, S. R., History of England, 1603-1642.

History of the Great Civil War, 1642-1649.

History of the Commonwealth and Protectorate, 1649-1656.

BIBLIOGRAPHY 233

GNEIST, R., Englische Verfassungsgeschichte.

Geschichte und Heutige Gestalt der Englischen Kommunalverfassung

oder des Selfgovernment.
GREEN, J. R., Conquest of England.

Making of England.

History of the English People.
HALLAM, H., Constitutional History of England.
HUME, D., History of England.
JAMES, W., Naval History of Great Britain.
KEMBLE, J. M., Saxons in England.
LANG, A., History of Scotland.

LAPPENBERG, J. M., PAULI, R., and BROSCH, M., Geschichte von England.
LECKY, W. E. H., History of England in the Eighteenth Century.
LINGARD, J., History of England.
LONGMAN, W., Life and Times of Edward III.
MACAULAY, T. B., History of England.
MCCARTHY, J., History of Our Own Times.
MACKINNON, J., History of Edward the Third.
MAY, SIR T. E., Constitutional History of England.
MOLESWORTH, W. N., History of England, 1830-1874.
NORGATE, K., England under the Angevin Kings.

John Lackland.

PAUL, H. W., History of Modern England.

PEARSON, C. H., History of England during the Early and Middle Ages.
RAMSAY, SIR J. H., The Foundations of England.
Angevin Empire.
Lancaster and York.
SCOTT, SIR S. D., The British Army.
SEEBOHM, F., English Village Community.
SKENE, W. F., Celtic Scotland.
STANHOPE, P. H., History of England comprising the Reign of Queen Anne until

the Peace of Utrecht.

History of England from Peace of Utrecht to Peace of Versailles.
STUBBS, W., Constitutional History of England.
TODD, A., Parliamentary Government in England.
TRAILL, H. D., and MANN, J. S., Social England.
VINOGRADOFF, P., Villainage in England.

WALPOLE, SIR S., History of England from the Conclusion of the Great War in 1815.
WYLIE, J. H., History of England under Henry IV.

FRANCE

ADAMS, C. K., Democracy and Monarchy in France.
BAIRD, H. M., Rise of the Huguenots of France.

Huguenots and Henry of Navarre.

Huguenots and the Revocation of the Edict of Nantes.
BARANTE, A. G. P. de, Histoire des Dues de Bourgogne.
BLANC, L., Histoire de la Revolution Francaise.
BODLEY, J. E. C., France.

BONNELL, H. E., Die Anfange des Karolingischen Hauses.
BORDIER, H. L., and CHARTON, E., Histoire de France.
CARLYLE, T., The French Revolution.

COUBERTIN, P. DE, L'Evolution Francaise sous la Troisieme Re"publique.
CROWE, E. E., History of France.
DARESTE DE LA CHAVANNE, C., Histoire de France.

234 DEPARTMENT OF HISTORY

DELORD, T., Histoire IllustrSe du Second Empire.

DUVERGIBR DE HAURANNE, P., Histoire du Gouvernement Parlementaire en

France, 1814-1848.

FLACH, J., Les Origines de 1'Ancienne France.

FUSTEL DE COULANGES, Histoire des Institutions Politiques de 1'Ancienne France.
GLASSON, E., Histoire du Droit et des Institutions de la France.
GUIZOT, F. P. G., Histoire de France.
HANOTATJX, G., Histoire de la France Contemporaine.
HILLEBRAND, K., Geschichte Frankreichs, 1830-1871.
JOBEZ, A., La France sous Louis XV.

KIRK, J. F., History of Charles the Bold, Duke of Burgundy.
KITCHIN, G. W., History of France.
LAMARTINE, A. DE, Histoire de la Restauration.
LANFREY, P., Histoire de Napoleon ler.
LAVISSE, E., Histoire de France.
LOEBELL, J. W., Gregor von Tours und seine Zeit.
LUCHAIRE, A., Histoire des Institutions Monarchiques de la France sous les

Premiers Cape'tiens.
MAHAN, A. T., Influence of Sea Power upon the French Revolution and Empire,

1793-1812.

MARTIN, H., Histoire de France.
MICHELET, J., Histoire de France.

Histoire de la Revolution Francaise.
PALGRAVE, SIR F., History of Normandy and of England.
PERKINS, J. B., France under Mazarin, 1610-1660.
France under the Regency, 1661-1723.
France under Louis XV, 1723-1774.
PICOT, G., Histoire des Etats-Ge'ne'raux.
POIRSON, A., Histoire du Regne de Henri IV.
RAMBAUD, A., Histoire de la Civilisation Franpaise.

Histoire de la Civilisation Contemporaine en France.
RICHTER, G., Annalen des Frankischen Reichs.
SIMONDE DE SISMONDI, J. C. L., Histoire des Fran9ais.
SLOANE, W. M., Life of Napoleon Bonaparte.
SOREL, A., L'Europe et la Revolution Francaise.
STEPHENS, H. M., History of the French Revolution.
SYBEL, H. VON, Geschichte der Revolutionzeit, 1789-1800.
TAINE, H. A., Les Origines de la France Contemporaine.
THIERRY, AMEDEE, Histoire des Gaulois.
THIERRY, ATJGUSTIN, Essai BUT 1'Histoire de la Formation et des Progres du

Tiers Etat.
THEIRS, A., Histoire de la Revolution Francaise.

Histoire du Consulat et de 1'Empire.

THUREATJ-DANGIN, P., Histoire de la Monarchic de Juillet.
VIEI/-CASTEL, L. DE, Histoire de la Restauration.

VIOLLET, P., Histoire des Institutions Politiques et Administratives de la France.
WALLON, H. A., St. Louis et son Temps.

GERMANY AND AUSTRIA
ARMSTRONG, E., Emperor Charles V.
ARNOLD, W., Deutsche Geschichte.
BATJMGARTEN, H., Geschichte Karls V.
CARLYLE, T., History of Friedrich II of Prussia.

BIBLIOGRAPHY 235

COSEL, E. VON, Geschichte des Preussischen Staates und Volkes unter den Hohen-

zollern'schen Fiirsten.

COXE, W., History of the House of Austria.
DAHN, F., Die Konige der Germanen.
DROYSEN, J. G., Geschichte der Preussischen Politik.
EBERTY, F., Geschichte des Preussischen Staats.
GEBHARDT, B., Handbuch der Deutschen Geschichte.

GERDES, H., Geschichte des Deutschen Volkes und seiner Kultur im Mittelalter.
GIESEBRECHT, W., Geschichte der Deutschen Kaizerzeit.
HAUSSER, L., Deutsche Geschichte vom Tode Friedrichs des Grossen bis zur

Griindung des Deutschen Bundes.

HEGEL, K., Stadte und Gilden der Germanischen Volker.
HENDERSON, E. F., History of Germany in the Middle Ages.

Short History of Germany.

HENNE-AM-RHYN, O., Kulturgeschichte des Deutschen Volkes.
JAHRBUCHER DES DEUTSCHEN REICHES.

JANSSEN, J., Geschichte des Deutschen Volkes seit dem Ausgang des Mittelalters.
KAUFMANN, G., Deutsche Geschichte bis auf Karl den Grossen.
KRONES VON MARCHLAND, F. X., Handbuch der Geschichte Osterreichs.
LAMPRECHT, K., Deutsche Geschichte.
LEGER, L., Histoire de 1'Autriche-Hongrie.
LINDNER, T., Geschichte des Deutschen Reiches, vom Ende des 14ten Jahrhund-

erts bis zur Reformation.

LOHER, F., Kulturgeschichte der Deutschen im Mittelalter.
MAILATH, J., Geschichte des Ostreichischen Kaiserstaats.
MAURER, G. L. VON, Geschichte des Markenverfassung in Deutschland.
Geschichte der Dorfverfassung in Deutschland.
Geschichte der Stadteverfassung in Deutschland.
MENZEL, W., Geschichte der Deutschen bis auf die Neuesten Tage.
NITZSCH, K. W., Geschichte des Deutschen Volkes.
OZANAM, A. F., Les Germains avant le Christianisme.
RAUMER, F. VON, Geschichte der Hohenstaufen und ihrer Zeit.
ROBERTSON, W., History of Charles V.
SAYOUS, E., Histoire Gene"rale des Hongrois.
SCHAEFER, A., Geschichte des Siebenjahrigen Kreigs.
SEELEY, J. R., Life and Times of Stein.
SOHM, R., Die Altdeutsche Reichs und Gerichtsverfassung.
SPRINGER, A., Geschichte Osterreichs seit dem Wiener Frieden, 1809.
STIRLING-MAXWELL, SIR W., Don John of Austria.
STOBBE, O., Geschichte der Deutschen Rechtsquellen.
SUGENHEIM, S., Geschichte des Deutschen Volkes und seiner Kultur.
SYBEL, H. VON, Die Begriindung des Deutschen Reiches.
TREITSCHKE, H. VON, Deutsche Geschichte im 19ten Jahrhundert.
TUTTLE, H., History of Prussia.
WAITZ, G., Deutsche Verfassungsgeschichte.
ZELLER, J., Histoire d'Allemagne.
ZOPFL, H., Deutsche Rechtsgeschichte.

ITALY

BOTTA, C. G. G., Storia d' Italia.

BURCKHARDT, J., Die Cultur der Renaissance in Italien.

CANTTJ, C., Storia degli Italiani.

DARU, P. A. N. B., Histoire de la Re"publique de Venise.

FARAGLIA, N. F., II Comune nelT Italia Meridionale, 1100-1806.

236 DEPARTMENT OF HISTORY

GALLUZZI, J. R., Istoria del Granducato di Toscana.

HAZLITT, W. C., History of the Venetian Republic.

HODQKIN, T., Italy and her Invaders.

LEO, H., Geschichte der Italienischen Staaten.

MARTINENGO-CESARESCO, E., Storia della Liberazione d' Italia, 1815-1870.

PERRENS, F. T., Histoire de Florence.

REUCHLIN, H., Geschichte Italiens von der Griindung der Regierenden Dynastien

bis zur Gegenwart.
REUMONT, A. VON, Geschichte Toscana's seit dem Ende des Florentinischen

Freistaats, 1530-1859.
Lorenzo de' Medici, il Magnifico.
SIMONDE DE SISMONDI, J. C. L., Histoire des Re"publiques Italiennes du Moyen

Age.

SYMONDS, J. A., Renaissance in Italy.

TROLLOPE, T. A., History of the Commonwealth of Florence.
VILLARI, P., I primi due Secoli della Storia di Firenze.

La Storia di Girolamo Savonarola e de' suoi Tempi.
Niccolo Machiavelli e i suoi Tempi.
ed., Storia Generale d' Italia.

NETHERLANDS AND BELGIUM
BLOK, P. J., Geschiedenis van het Nederlandsche Volk.
BOSCH-KEMPER, J. DE, Geschiedenis van Nederland na 1830.
GEDDES, J., History of the Administration of John de Witt.
JUSTE, T., Histoire de Belgique.

Histoire du Congres National de Belgique.
La Revolution Beige.
LEFEVRE-PONTALIS, A., Vingt Annies de R^publique Parlementaire au 17e

Siecle; Jean de Witt.

MOTLEY, J L., Rise of the Dutch Republic.
History of the United Netherlands.
Life and Death of John of Barneveld.
NUIJENS, W. J. F., Geschiedenis van het Nederlandsche Volk van 1815 tot op

onze Dagen.

PUTNAM, R., William the Silent, Prince of Orange.
WENZELBURGER, K. T., Geschichte der Niederlande.

RUSSIA
BERNHARDI, T. VON, Geschichte Russlands und der Europaischen Politik, 1814-

1831.

KARAMZIN, N., Histoire de 1'Empire de Russie.
LEROY-BEAULIEU, A., L'Empire des Tsars.
RAMBAUD, A., Histoire de la Russie.

SCHNITZLER, J. H., L'Empire des Tsars au Point Actuel de la Science.
SCHUYLER, E., Peter the Great.

STRAHL, P., and HERRMANN, E., Geschichte des Russischen Staates. •
WALLACE, D. M., Russia.

SCANDINAVIA

ALLEN, C. F., Haandbog i Faedrelandets Historic.
DAHLMANN, F. C., Geschichte von Dannemark.
GEIJER, E. G., and CARLSON, F. F., Geschichte Schwedens.
MAURER, K., Island von seiner ersten Entdeckung bis zum Untergange des
Freistaats.

BIBLIOGRAPHY 237

SPAIN

BAUMGARTEN, H., Geschichte Spaniens vom Ausbruch der Franzosischen Revo-
lution bis auf unsere Tage.

CANOVAS DEL CASTILLO, A., Historia General de Espafia.
COFFEE, H., History of the Conquest of Spain by the Arab Moors.
DOZY, R. P. A., Histoire des Musulmans d'Espagne, 711-1110.
DUNHAM, S. A., History of Spain and Portugal.
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PIRALA, A., Historia Contemporanea.
PRESCOTT, W. H., History of the Reign of Ferdinand and Isabella.

History of the Reign of Phillip the Second.
ROMEY, C., Histoire d'Espagne.

SWITZERLAND

DAGUET, A., Histoire de la Confederation Suisse.
DANDLIKER, K., Geschichte der Schweiz.

DIERAUER, J., Geschichte, der Schweizerischen Eidgenossenschaft.
HEXNE-AM-RHYN, O., Geschichte des Schweiz ervolkes und seiner Kultur.
MORIN, A., Pr6cis de 1'Histoire Politique de la Suisse.
MULLER, J. VON, and others, Histoire de la Confederation Suisse.
VULLIEMIN, L., Histoire de la Confederation Suisse.

TURKEY AND GREECE
ENGELHARDT, E., La Turquie et le Tanzimat.
FINLAY, G., History of Greece.

HAMMER-PURGSTALL, J. VON, Geschichte des Osmanischen Reiches.
HERTZBERG, G. F., Geschichte Griechenlands.
MENDELSSOHN-BARTHOLDY, K., Geschichte Griechenlands von 1453 bis auf

unsere Tage.

PROKESCH-OSTEN, A., Geschichte des Abfalls der Griechen.
TRIKOUPES, S., 'Icr-ropla. rrjs 'EXXTjfi/c^j 'Eiravaffrafffus.
XENOPOLU, A. D., Istoria Rominilor din Dacia Traiana.
ZINKEISEN, J. W., Geschichte des Osmanischen Reiches in Europa.

HISTORY OF AMERICA

ADAMS, H., History of the United States of America.
AVERY, E. M., History of the United States and its People.
BANCROFT, G., History of the United States.
BANCROFT, H. H., History of the Pacific States.
BATTLES AND LEADERS OF THE CIVIL WAR.
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BRYCE, JAMES, The American Commonwealth.
CURTIS, G. T., Constitutional History of the United States.
DAVIS, JEFFERSON, Rise and Fall of the Confederate Government.
DONIOL, H., Histoire de la Participation de la France a 1'Etablissement des
Etats-Unis d'Ame'rique.

238 DEPARTMENT OF HISTORY

DOYLE, J. A., English Colonies in America.
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Old Virginia and her Neighbours.

Beginnings of New England.

Dutch and Quaker Colonies in America.

New France and New England.

American Revolution.

Critical Period of American History.

HAMILTON, J. C., History of the Republic of the United States.
HART, A. B., ed., The American Nation.
HELPS, Sm. A., Spanish Conquest in America.
HILDRETH, R., History of the United States of America.
HOLST, H. E. VON, Constitutional and Political History of the United States.
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MACLAY, E. S., History of the United States Navy.
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TREVELYAN, G. O., American Revolution.

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The Mississippi Basin, 1697-1763.
The Westward Movement, 1763-1798.
ed., Narrative and Critical History of America.

CANADA

CHRISTIE, R., History of the Late Province of Lower Canada.
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SULTE, B., Histoire des Canadiens-Francais.
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MEXICO AND SOUTH AMERICA
ARRANGOIZ, F. DE, Mexico desde 1808 hasta 1867.
BARROS ARANA, D., Historia Jeneral de Chile.
DOMENECH, E., Histoire du Mexique.
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MITRE, B., Historia de Belgrano y de la Independencia Argentina.
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History of the Conquest of Peru.

TORRENTE, M., Historia de la Revolution Hispano-Americana.
ZAMACOIS, N. DE, Historia de Mexico.

DEPARTMENT IV — HISTORY OF LAW

DEPARTMENT IV — HISTORY OF LAW

(Hall 5, September 20, 11.15 a. m.)

CHAIRMAN: HONORABLE DAVID J. BREWER, Associate Justice of the Supreme

Court of the United States.
SPEAKERS: HONORABLE EMLIN McCLAiN, Judge of the Supreme Court of Iowa,

Iowa City.
PROFESSOR NATHAN ABBOTT, Leland Stanford Jr. University.

HISTORY OF LAW

BY EMLIN M'CLAIN

[Emlin McClain, Associate Justice of Supreme Court of Iowa. b. Salem, Ohio,
November 26, 1851. State University of Iowa, B.Ph. 1871; B.A. ibid. 1872;
LL.B. ibid. 1873; A.M. ibid. 1882; LL.D. ibid. 1891; LL.D. Findley College,
Ohio. Professor in Law Department, State University of Iowa, 1881-1901;
Chancellor, 1890-1901; Member Code Commission of Iowa; Judge Supreme
Court of Iowa, 1901. Member American Bar Association, 1889, Iowa Bar As-
sociation, American Historical Society, International Law Association. Author
of treatises on Criminal Law and Constitutional Law, compiler of Selected Cases
on Carriers, and on Constitutional Law; also of Iowa Digest, and Annotated Code
of Iowa.]

ANY attempt to outline a history of law with the view of presenting
a connected account of its development as a branch of human
knowledge must be preceded consciously or unconsciously Differ-
by an elimination of allied or analogous matter, and by |nd Elim-
a differentiation of law from other sciences. For the sub- ination.
ject has intimate relation with every phase of man's social activity
and intellectual development; with religion, ethics, and morality;
with institutions, government, and legislation; with race character-
istics and their evolution; and its records form an important part of
the material with which anthropology and ethnology are concerned.
Such elimination and differentiation are necessary not only in order
to determine the subject-matter and arrive at a definition of law,
but also in order to secure a starting-point from which its develop-
ment may be traced. Among many primitive peoples law is not
clearly distinguished from religion, and its administra- Religion
tion is found to be in the hands of the priests. Not only and Law.
are legal proceedings accompanied by religious ceremonies, but the
exercise of the judicial power is conceived to be within the scope
of the sacerdotal functions. In Rome, for instance, the interpret-
ation of the law was a function of the Sacerdotal College, first as a
fact, and later perhaps only as an empty fiction down to the end

242 HISTORY OF LAW

of the Republic, that is, until about the beginning of the Christian
era, when Augustus Csesar added to his various other offices that
of Pontifex Maximus, and thus became the supreme law inter-
preter as well as the supreme law-maker. It clearly appears that
the judicial functions of the priestly office had not fallen into com-
plete disuse during the third century B. c., when the first plebeian
who attained to the position of Pontifex Maximus announced his
readiness to answer legal questions to all instead of confining his
exposition of the law to such actual cases as might be brought
before him.

The primitive relations between religious ceremonial observances
and legal proceedings cannot be regarded, however, as purely acei-
Morality dental, or as resulting alone from the superior education
and Law. and learning of the priests. There is, undoubtedly, some
deep-seated connection between the religious and legal significance
of words which are common to religion and law, represented in our
language by such words as "right" and "just" and "lawful."
There was the same suggestive relation between "fas" and "nefas"
on the one hand and "jus" and "lex" on the other among the
Romans. And in perhaps all modern languages there is the ambigu-
ity growing out of the use of words of the same import, as " recht "
among the Germans, and " droit " among the French. This connec-
tion is hardly to be explained as growing out of the resort to the
superstitious or religious nature of men for the purpose of securing
their action in legal affairs according to some other rule or guidance
than that of self-interest, prejudice, or partisanship. Such assistance
the law has in all ages sought in religion. Performance of contractual
obligations was secured among primitive people by giving to them
a religious sanction. In the Middle Ages compurgation was a recog-
nized method of arriving at the truth in the determination of legal
disputes, and in modern times we seek to induce witnesses to tell
the truth by the administration of oaths, and in the same method
we endeavor to influence jurors and judges to perform their duties
uprightly and without fear or favor.

Ethics and morals remain associated with law in modern con-
ceptions. Although it may be conceded that the original function
Ethics re- °^ *^e state in regulating human actions which affect
cognized the relations of individuals to each other is to secure the
by Law. prevalence of social order, nevertheless the general obli-
gation to so administer the law as that on the whole moral right and
justice shall prevail is a conception too deeply seated to be ignored.
Nor has the general recognition of this obligation ceased to have
legal significance. It is a popular belief that law was at first sim-
ply morality, and that through undue attention given to forms and
technicalities of procedure the two have become widely separated

HISTORY OF LAW 243

and inconsistent in their aims. The historical fact is that technicality
and formality have been marked characteristics of the earliest admin-
istration of law among all peoples, and that the tendency has been
universal so to modify and adjust the early technical procedure as
that right and justice in a moral sense shall be done. Not only through
legislation, but also by means of fiction and the introduction of
equitable principles, law has been brought into a closer consonance
with morality. Never before have bad faith and the resort to tech-
nical legal rules for the purpose of effecting that which is morally
wrong been so strongly discountenanced in legal tribunals them-
selves ; and never before have such tribunals been more zealous so
to apply legal rules as to secure results which accord with ethical
standards.

Notwithstanding the underlying connection in human thought
between rights and duties of which law takes cognizance and those
which are recognized in ethics and morality, it is evi- jjut
dent, nevertheless, that until there is a clear and well- distinct,
established distinction between law and morality there can be no
ascertainable science of jurisprudence. Until the recognized aim in
the administration of law is to apply rules which are sufficient to
afford a reason for their application without regard to the ethical
result in any particular case, there cannot be a science of law.

It is also apparent that there must be a differentiation between
administrative and legislative functions on the one hand and judi-
cial functions on the other before there is a science of A<imin- -
law as distinct from a knowledge of the law. The sov- tration
ereign or body exercising the power of sovereignty may a
still retain and exercise the power to do right in particular cases
and administer justice, but until controversies between individuals
which are adjudicated under the sovereign authority are decided
habitually if not universally by applying established and related
rules of action and obligation, there can be no science of law.

The necessity for the interference of the state in private contro-
versies arises probably from the obligation of the state to maintain
peace and order, and perhaps the very first occasion for pubiic
the exercise of that function would be in the suppression Wrongs.
of the turmoil and the insecurity existing where the individual is
left to his own powers and resources, or that aid which his kindred
may feel bound by custom to afford him in the protection of his
supposed rights. The blood-feuds and the violence incident to a
resort to self-help could not be suppressed until some substitute
was afforded. This is, perhaps, a sufficient explanation of the
characteristic provisions not only in the laws of early Teutonic
races, but also in the early laws of other races, as to the amount
to be paid as weregeld, or under some similar name by the wrong-

244 HISTORY OF LAW

doer or those responsible for his conduct to the injured party or his
relatives for acts of personal violence. The conception of a public
wrong which the state for its own interest should punish was, how-
ever, not lacking in the earliest social organizations, and the modern
enlargement of this conception of the duty of the individual to the
public as a whole represented by the state is an illustration of the
ever increasing complexity of social relations. But it is evident, how-
ever, that until the governing power, whatever it may be, in discharg-
ing the duty of determining controversies between individuals, and
redressing injuries to the public, has come to recognize a general
obligation to proceed in accordance with established rules, and not
simply in the exercise of an indefinite power to govern, there can
be no science of law.

A distinction between the power to make laws and the power
to modify or add to the law is also essential to a science of law.
Legislation The English school of analytical jurists, which is perhaps
and Law. the only distinctively English school of jurisprudence,
seems to have ignored the difference between the aggregate body of
the laws and the law. So long as the law is conceived of theoretically
as the aggregate of the commands of a sovereign power, no necessity
becomes apparent for the recognition of any such difference. But
the practical distinction between the customary law and the law
composed of conscious legislation has been appreciated under every
legal system at an early period in its development. The science of
law as distinct from the sciences of politics and of government can,
however, have no existence until the law is recognized as something
quite essentially different from the aggregate body of legislation.
The exercise of legislative power in the process of modifying and
adding to the law has other motives and proceeds along other lines
than those which are prominent and controlling in political and
governmental science.

On the other hand it is clear that the mere existence of a body
of customary law does not connote a science of law. While the
Customary administration of justice remains in the hands of local
Law- magistrates or bodies administering the customary law

without further supervision than that resulting from the right of
appeal to a central power, which interferes only to prevent injustice
in particular cases and without applying any system of rules and
principles to which the inferior and local judiciary is required to
conform, there is no system of law. The Anglo-Saxon period in the
development of the English law furnished an apt example, and it
was not until the king's justices exercised the customary power of
administering a system of law which was regarded as the king's
law that there came to be a scientific jurisprudence.

Another suggestion seems pertinent here. The history of law

HISTORY OF LAW 245

is a wholly different thing from the history of a rule or principle of
law, or of a particular legal institution. It is always very interesting,
and may often be profitable, to trace backward the history Law and
of a rule of law or a legal institution to its original con- Rules of
ception, or to trace downward the development of the aw'
earliest conception formed of any rule or institution to its modern
status. In whichever method such investigation is pursued there is
great danger that we may mistake mere analogies due to similarity
of social conditions or race characteristics for the derivative relation
of cause and effect. Even an analogy, however, if carefully ascer-
tained, may prove to be interesting and instructive. But the history
of law does not consist of the history of the various rules and institu-
tions with which jurisprudence is concerned.

Out of the earliest conception of science as the aggregate of human
knowledge, and of philosophy as the reason or explanation of the
relation of facts to each other, were differentiated branches Science of
of science, one of which was a knowledge of the law, and the Law.
branches of philosophy, one of which was the philosophy of the law;
and the art of administering the law was involved in this science
and this philosophy. Legal facts taken into consideration in the
administration of the law, generalized and arranged according to
some system of supposed relation and explained by some assumed
reason for their existence, became as thus arranged and explained
a branch of human knowledge which could be designated by the
term jurisprudence. That term might be applied to any aggregation
of legal facts having some relation to each other; for instance, the
facts of one branch of the law, such as the law of persons and of
property rights, the law of admiralty or the law of the relations of
nations to each other; or it might be applied to a knowledge of all
the law recognized within a state or nation or race; or it might be
applied to the law generally conceived of as including all ascertainable
facts found to exist affecting the relations of human beings to each
other anywhere so far as they are affected by or taken account of
in the administration of the law, arranged according to some system
and explained by some philosophy. The history of the development
of jurisprudence regarded as a branch of general human knowledge
and not related to the facts of a particular branch of the law, or a
particular system of law, may properly be spoken of as the history of
law, or the history of jurisprudence. If jurisprudence be described in
the brief phrase of Dr. Holland as "the formal science of positive
law," then the history of jurisprudence is the history of the develop-
ment of that science. Until this science was so far differentiated
from other sciences that it could be conceived of as a branch of
knowledge dealing with a group of facts having an independent
classification, and reasoned about as having an independent existence,

246 HISTORY OF LAW

there could be no distinct history. This differentiation was only
sufficiently completed to permit of a definite use of the term "science
of law" when the relation of principles to each other was determined
by a body of rules independent of, although not necessarily antago-
nistic to, those recognized by religion, ethics, and morals, enumerated
and enunciated not arbitrarily by some law-maker, but explained
by some rational process and developed according to some system
of principles and administered by some authority recognizing in
theory, if not in practice, the obligation to make the result of such
administration conform to rules and principles thus recognized.

In order to fix the starting-point of the history of law as a distinct
science, it is necessary to ascertain the first existence of such a branch
Starting- of human knowledge. The unequal advancement of the
History * human race accounts for the development of an organized
of Law. social system in which systematic jurisprudence is recog-
nized at an earlier stage in one group than in another; and by elim-
inating from consideration those groups in which there can be said
as yet to be no science of jurisprudence in a distinctive sense as the
term is now employed, and noticing that those groups in which such
science has been achieved are so related to each other that the
jurisprudence of the one can be assumed as having had some influence
on the others, it will be found that a history can be written with
a somewhat definite starting-point, and dealing with a somewhat
consecutive and homogeneous development.

There can be little difficulty in eliminating from the field of our
present view all of the so-called ancient races save the Romans.
Begin ^e ^aw °^ ^ie Hindus as illustrated by the Code of

with the Manu, the Hebrew Scriptures, and the Koran are so
Romans. essentially religious that they must be excluded from
consideration in a discussion of the history of the law. The Baby-
lonians and the Egyptians appear to have had no distinctive judicial
system of administering the law. Even the Greeks, with all their
advancement in art and philosophy, had no system of jurisprudence.
With them the science of law had not yet been separated from that
of politics and government. But among the Romans the law became
a branch of human knowledge, having for its scope recognized facts.
a reasonably well-ascertained arrangement, and a somewhat distinct
philosophy. And such a conception of the law thus originating among
them has not been lost sight of in the civilized world down to the
present time. It may have been independently achieved among
other Western peoples, but the development of the Roman civiliz-
ation reached the whole Western world during the formative period,
and no other system can be discussed without considering the in-
fluence of Roman civilization upon it. It is not assumed, on the
other hand, that the Roman civilization was spontaneous, but what-

HISTORY OF LAW 247

ever that people did derive from other sources came to them before
there was a science of jurisprudence. If then we can ascertain the
beginning of such a science among the Romans, we have a reason-
ably convenient and satisfactory starting-point for a history of law.

It seems to be general^ assumed that the brief Roman code
known as the Twelve Tables, promulgated B. c. 452, 451 (303, 304
A. u. c.), constitutes the source and beginning of juris- Twelve
prudence at Rome, and is therefore the first monument in Tables,
the history of law; but this point is of sufficient importance to justify
some deliberation.

Such a code as that of the Twelve Tables was not a new invention
of the Romans. A complete Babylonian code promulgated by
Hammurabi, the sixth king of the first dynasty of Babylon-
Babylon, who reigned about B. c. 2250, and is identified ian Code.
with the Amraphel mentioned in the book of Genesis in the Hebrew-
Scriptures, has been recovered and translated, which indicates that at
that time the Babylonians had reached a stage of development in
legal notions not greatly different from that which existed among the
Romans at the time the Twelve Tables were promulgated. In two.
respects, however, the primitive Roman code indicates conceptions
more advanced than those entertained by the Babylon- Roman
ians, the Egyptians, or the Hindus. In the first place it ^g^*1011
does not purport to emanate from a divine source, and in advanced.
the second place it recognizes the existence of the rudiments of a dis-
tinctly judicial procedure. In the latter respect it is more advanced
than the so-called laws of Solon, the Athenian ruler in the seventh
century B. c., from which some of its provisions are supposed tO'
have been borrowed. It may be suggested as an interesting fact that
the Teutonic codes, so called, which came into form during the
Middle Ages and represented the social system which had previously
existed among these tribes, are not very different in their subject-
matter from the Babylonian, Egyptian, and Hindu codes. They
picture a period of social development when the right of retaliation
is being superseded by a system of money compensation to be paid
according to a fixed scale for injuries to person and property. There
are traces of this notion found in the Roman law of the time of the
Twelve Tables, but that code suggests a social development which
had gone at least one step further toward modern conceptions of
personal and property rights.

The Twelve Tables did not indicate, however, the existence
among the Romans of some of the essential features of Twelve
a scientific system of law. Here was a collection of proper not
laws, but not a body of law. Here was the conception Starting-
of rules of conduct and obligation laid down on the g-g^^
authority of the state, not purporting to be derived from of Law.

248 HISTORY OF LAW

a divine source, but no recognition of any connection between
the written command and a preexisting body of customary law to
which the written law was added. There is lacking also any con-
ception of law as the basis for subsequent development by inter-
pretation and exposition.

Within the following three centuries, however, or at least before
the end of the Roman Republic, all of these elements of a system
Beginning °f 1&W nad been added. The law became the subject of
of System methodical discussion by learned men who made it a spe-
among cial study. It was administered by praetors who an-
Romans. nounced in their annual edicts rules and principles not
directly derived from the written law, and which they would observe
in their administration of justice during their respective terms of
office. The praetor peregrinus was determining rights and obligations
of those not subject to the civil law which governed Roman citizens,
assuming the existence of customs and usages binding upon them
without any express enactment, and a method of trial had been
developed in which the rules of law applicable to the case were
expounded and a judicial determination of the facts was secured.
Whether we accept as satisfactory evidence of the existence of
scientific jurisprudence the republication from year to year by the
praetors in their annual edicts of the substantial portions of the
edicts of their predecessors, thus establishing the existence of what
may not improperly be termed judge-made law, or their propounding
by formulae to the judex of the question of fact to be ascertained in
order to determine the application in the particular case of rules of
law previously announced by a jurisconsult, or the compilation by
Sextus Aelius Paetus, Consul B. c. 197, of his Tripartita embodying
the Twelve Tables, the interpretation thereof by the Sacerdotal Col-
lege, and the forms of action appropriate for seeking legal remedies,
as the final evidence of the existence and recognition of a system
of law, we shall bring the starting-point of such a system within
the two centuries before the Christian era, and probably within the
earlier of these two centuries.

It is not within the province of the present discussion to elaborate
the details of Roman jurisprudence, nor to comment upon the
Two Char- characteristics of property and personal rights which
acteristics. were recognized. But something ought to be said of cer-
tain legal conceptions peculiar to the Romans which have profoundly
influenced the historical development of law since their time. Of
these, two may be selected as of special importance: first, that the
Roman law was applicable only to Roman citizens, and second, that
there was a system of law described by them as the law of nature
furnishing a philosophical explanation for all human laws. The two
conceptions are related apparently only in this, that the recognition

HISTORY OF LAW 249

of the principle of personality rather than that of territoriality of
law led to the discovery or investigation of the theory of natural
law.

By reason of the conception of law as personal and not territorial,
it was necessary for the praetor peregrinus to seek some other
system of law than that applicable to Roman citizens on person-
which to base his decisions in controversies between for- ality.
eigners, that is, persons who were not Roman citizens. For it was
only a citizen who could enjoy the property rights, sustain the family
relations, enter into the contractual obligations, or avail himself
of the judicial procedure recognized by the law of Rome. This
theory of the personality of the law cut a large figure during the
medieval age, and served as a marked distinction between the
Roman system and the feudal system. The distinction may be of
no great significance, for the rule of territoriality is now fully recog-
nized in all civilized countries, not only as to the relations of individ-
uals to each other and to the state under any particular system of
law, but also as to the relations to each other of foreign nations
and their subjects, but it will furnish an explanation for many
difficulties and peculiarities developed in the study of the early
Teutonic systems.

The notion that the praetor peregrinus must administer some
other system of law than the civil law of Rome led to the assumption
of the existence of a body of rules and principles which jus Qen_
could be derived from the laws of other peoples, that is, the tium.
jus gentium. The first conception was the purely practical one that
the controversies between subjects of other governments tempo-
rarily residing or transacting business in Rome ought to be decided
according to the laws of the governments to which they were sub-
ject. Such laws would be their laws wherever they might be,
just as the Roman laws were the laws of the Roman citizen. But
it would be impossible in many cases between foreigners to find
any law applicable to both, and the praetor was driven to administer
in such cases a kind of general law, in fact, a system of equity; and
he did it on the fictitious assumption, especially with reference to
commercial transactions, that there was an established system of laws
or principles common to all nations. Nowhere is the capacity of the
Roman jurist to generalize without regard to facts and to build
up a system on mere philosophical theory more aptly illustrated
than in the assumption of a jus gentium. No praetor or jurisconsult
or philosophical writer seems to have pretended to discover as a matter
of fact the existence of any such system of principles, nor indeed
to have made any investigation for the purpose of determining
whether such a system existed among or could be derived from
the laws of different nations. That the praetor peregrinus, in fact,

250 HISTORY OF LAW

administered pure equity cannot be doubted. The anomaly of the
situation was in his pretending that he was discovering and adminis-
tering jus gentium.

From the conception of a jus gentium it was easy to make the
philosophical deduction of a natural law, that is, a collection of
Natural laws and principles which did prevail among men living
Law. together in a natural state free from the technical re-

straints of the Roman law. And again, it was an easy step to assume
for the natural law some moral obligation, and that all laws, even the
laws of Rome, ought to conform to it as nearly as possible.

In this development of the theoretical conception of a law of
nature from the practical assumption of a jus gentium, the Roman
Stoic Philo- jurist seems to have been guided or at least assisted
sophy. by the prevalent Stoic philosophy which originated in

Greece with Zeno about B. c. 308, and was the favorite philosophy
of men of learning and culture prior to the general acceptance of
the Christian religion. The fundamental conception of the Stoic
seems to have been that underlying all facts and occurrences is
some reasonable explanation, and that by accommodating himself to
the natural order of things the human being best adjusts himself
to his surroundings, and most easily obtains the desirable condition
of contentment and satisfaction. That there should be some such
reasonable order and connection at the foundation of social phe-
nomena, serving as a basis for jurisprudence so far as discoverable,
is an assumption which does not appear to us in modern times as
extravagant; and while the Stoic philosophy as a matter of fact
explains nothing, it does represent a view which great numbers of
intelligent people still take as to their relations with nature and
their fellows.

When the theory of a natural law as a basis for a system of juris-
prudence passed from the phase of explanation to that of obligations,
Conse- it started upon a career that has been accompanied

quences of wjth many illogical and harmful views. To say that the
tion of Na- positive law ought to conform to some so-called natural
tural Law. standard is revolutionary, for the simple reason that
there is no means of ascertaining any such standard. What is
naturally right must necessarily vary with the conceptions enter-
tained by each school or faction or individual. And to say that a law
or principle of law is wrong and should not be obeyed or recognized
because it does not conform to some such assumed standard is to
introduce the same kind of confusion between law and morality
which existed before there was any differentiation of jurisprudence
from religion. As a philosophical assumption the law of nature is
harmless, for any school or collection of individuals may agree as they
see fit upon an explanation of social phenomena, though it is a little

HISTORY OF LAW 251

difficult to perceive now the benefit even from a philosophical stand-
point of an assumption for which no foundation of fact can be
ascertained. But to make such an assumption the basis of criticism
of or resistance to positive law is to introduce disorder into the
social system, a result wholly inconsistent with the spirit of the
Stoic philosophy.

Nevertheless, it is in the assumption that the civil law as it was
finally developed at Rome is founded upon and embodies the natural
law, that superior excellence has been claimed for it by Natural
enthusiastic students and advocates. There are sen- Law^sT
tentious and catching phrases in the Institutes of Roman
Justinian with reference to law and justice borrowed, Jurists.
of course, from early writers, which have commended the civil law
to those who like to philosophize about jurisprudence. It seems not
to have seriously occurred to the advocates of the superiority of the
civil law system that it should be judged by its practical results
rather than by its theories, and that the notions of right and justice
which are expressed in general phrases by the expounders of the
civil law are so far common human property that they may be
found tersely and cogently set forth by Hammurabi or Confucius
or Moses or Mohammed.

The conception of a jus gentium has been useful in the develop-
ment of the principles to be applied in private international law,
and the adaptability of the assumed natural law as Uses of Jus
furnishing fundamental principles for the exposition of Gentium.
public international law has led to a general acceptance in inter-
national law, public and private, of the civil law as containing the
law of nature. But it is doubtful if any substantially valuable por-
tions of the recognized international law would have been wanting
had there never been a civil law system or an assumed system of
natural law. Public international law has been developed like
any other system out of usage, and consists of the rules and prin-
ciples in accordance with which nations maintain relations to each
other, just as customary law is composed of like rules and principles
in accordance with which individuals are related to each other in
society. It is the general consensus as to what such rules and prin-
ciples ought to be so far as it has been ascertained and in an in-
definite way accepted.

The assumption of a law of nature has had its most potent
influence, however, in politics rather than in jurisprudence. It has
furnished arguments and justification for the overthrow Natural
of tyrannical and unjust governments, and has made Law and
easy the way for the extension and practice of personal com act
liberty. Conceptions of natural rights upon which gov- Theories
ernments should not infringe, and of the social compact in Politics-

252 HISTORY OF LAW

upon which governments rest, have been potent forces in the estab-
lishing of constitutional limitations, written and unwritten, through-
out the civilized world, and in compelling arbitrary governments
to adopt constitutional forms in accordance with which their powers
shall be exercised. The various declarations and bills of rights found
in the constitutional history of Great Britain, the United States, and
France since the beginning of the seventeenth century have con-
tained unmistakable traces of the theory of the law of nature as
embodied in the natural rights and social compact assumptions.
But it may not be out of place to suggest that when a fact is estab-
lished, a theory to explain it may easily be found, if not in one philo-
sophical conception, then in another, and the development of the
conceptions of individual freedom and that governing bodies exer-
cise only a limited and delegated power can be traced among the
Anglo-Saxons to a time when theories of natural rights and social
compact were absolutely unknown. It may be seriously doubted
by a student of comparative constitutional law whether the history
of governments and institutions in the Western world would have
been substantially different had no such explanation as natural
rights and the social compact been invented.

The Roman civil law at the end of the period of the Republic
consisted of legislation of various kinds, added to a body of cus-
Roman tomary law which had attained some measure of recog-
cfose^f nitlon by embodiment in the praetorian edicts, and
Republic. expositions by the jurisconsults already speaking
with quasi-public authority, although their designation as official
organs of the state was not made until a later period. This was the
golden age of the civil law, and to the spirit which was infused into
it during this stage of its development may be credited the intel-
lectual conquest of the civilized world when the darkness of the
Middle Ages was dispelled by the dawn of the Renaissance. But
during the twelve intervening centuries the civil law of Rome cut
a great figure in the world's history as the result of the conception,
first generally entertained during the Empire, that all law is based
directly on the authority of a ruler. And the practical result of that
conception was codification.

The codification of the Roman law under the Emperors was an
important step in its history, and of the greatest interest in con-
Codifi- nection with the general development of jurisprudence,

cation. on account of the light which it throws on the nature
and effect of a like process in other systems of law. But it is of
historical significance also because it was the Roman law in a codi-
fied form which was extended over Europe and exercised an influence
on the development of jurisprudence among the Teutonic peoples.

The process of codification under the Empire was simple. The

HISTORY OF LAW 253

first necessity impelling to it was the practical one of bringing to-
gether the formal edicts, decrees, and constitutions

Process
which had been promulgated as, and constituted the

body of positive legislation.

The first compilations of this character were made under private
authority during the fourth century, and are referred to collectively
as the Gregorian and Hermogenian Codes. But the first Early
official compilation was that of the Emperor Theo- Examples,
dosius II, who in 429 A. D. established a commission for the pre-
paration of such a compilation, although the work was not actually
promulgated until 438 as the result of the labors of a new commission.
As compared with the subsequent compilation of the whole law by
Justinian, which is known under the name of the Corpus Juris Civilis,
the code of Theodosius was crude and primitive. There was no
effort in its preparation to do more than put in authoritative form
the laws as distinct from the law. Nevertheless, the Theodosian Code
is of far more significance as affecting the first impetus toward
systematic jurisprudence in Europe than the Corpus Juris Civilis, for
upon it were founded the so-called barbarian codes of the various
Teutonic tribes who invaded and appropriated to themselves not
only the most of the territory over which the authority of the Western
Roman Empire had extended, but also to a large measure the
civilization which had been developed at Rome.

The process of codification, however, was carried much further.
The emperors in absorbing, not only the general power of legislation,
but the whole of the power of expounding and adminis- Under the
tering the law, arrogated to themselves every function Empire,
of jurisprudence. They consolidated the praetorian edicts into one
perpetual edict to which the imperial sanction was imparted, and
thus combined judge-made law with written law, and they thereby
brought into the civil law the results of the recognition of the jus
gentium and the law of nature which had been developed out of the
exercise of jurisdiction by the praetors. Roman equity became
merged into Roman law, and so jealous was the Imperial authority
of any infringement of its prerogative as the source of law that
exposition was confined by express command to certain designated
jurisconsults, who alone were allowed to make responsus prudenlium.
The impotence of the sovereign power thus completely to shackle
the development of law by means of exposition was illustrated in
this attempt, for some of the most illustrious works of Roman juris-
prudence were written by those who never received the Imperial
authority, and the labors of unofficial jurists have been as fully
accepted in subsequent ages as constituting a part of the Roman
law as those of the official jurisconsults.

The culmination of Roman codification was reached under Jus-

254 HISTORY OF LAW

tinian, who as ruler of the Eastern Empire, with his capital at Con-
Justinian's stantinople, but also with jurisdiction over the Western
Codifica- Empire, which was for the time being not subjeet to
on> his actual authority, between the years A. D. 529 and

534 caused to be prepared his Code proper, similar in scope to that
of Theodosius, with, however, an attempt at methodical arrange-
ment, and also the Pandects or Digest, a compilation of the author-
itative expositions of the law, and in addition the Institutes, an
elementary work expounding the theory and principles of the law.
These works constitute together the final historical monument of
the Roman civil law as the judicial system of an existing govern-
ment. They were prepared by Tribonian and his associates under
the Imperial command, but they embodied the results of a develop-
ment of law by abler and more original minds.

By the promulgation of the Pandects Justinian sought to con-
vert effectually that part of the law which did not already rest on
Codifica- the Imperial authority into written law, and to exclude
Develop- ^e possibility of further reference to other authority,
ment. It was forbidden to supplement the official text with

annotations or explanations, and there was theoretically no room
left for further development, save as the Imperial power should
be formally exercised in making additions or amendments.

The theory that a system of law can thus finally be reduced to
authoritative formal statement of rules and principles which shall
Attempt to be applied to cases as they arise in judicial tribunals,
fTcation without other assistance than that furnished by the
Final. interpretation of the text taken as a whole, has been

a favorite one wherever the civil law system has been adopted. In
the present German Code it is expressly provided that "the opinions
of law professors and the views taken by prior judges shall not be in
any way considered in future decisions"; and in the Code Napoleon
the judges are prohibited from pronouncing general views of law
in the cases which are submitted to them; while in Austria the con-
sideration of general principles is expressly excluded by a pro-
vision prohibiting the application of the customary law. In fact,
by the civil law theory of codification, the further development of
the law is taken out of the hands of jurists and placed entirely within
the domain of political science. It is needless to say to any one
familiar with the actual truths of modern law that such a theory
cannot be worked out; for judges, even in countries where there is
a final and complete codification, must inevitably take notice of the
prior decisions of the courts in analogous cases and seek enlighten-
ment for the interpretation of the law in the writings of those learned
men who have attempted to expound the principles and to illustrate
them by reference to cases real or hypothetical. The fundamental

HISTORY OF LAW 255

difference in this respect between the modern civil law and the com-
mon law is not that further development in the former has been
rendered impossible while it continues in the latter, but that in the
latter the material for such development is officially provided and
its use distinctly authorized, while in the former there is no recog-
nized rule in accordance with which such material may be preserved
or made use of and the results of the development remain obscure
until, after the lapse of a long period of illegitimate change, a com-
plete revision of the law and revolution in the system of jurispru-
dence become necessary.

The Justinian theory of codification is more rational than that
entertained by Bentham and his school in England in this, that
Justinian sought simply to embody in authoritative Bentham's
form the results of the legislation, interpretation, and School.
exposition within the entire field of law; that is, he proposed to repre-
sent in his compilations the existing body of the Roman law; while
Bentham proposed to substitute for the body of the existing English
law a system built up from his own individual conceptions of what
the law ought to be. It is easy to see that Bentham's theory was
wholly impracticable and visionary, and that such codes as he pro-
posed could not possibly cover the field of jurisprudence or be
other than disastrous in the practical administration of the law
from the very moment of their enactment. Such fragmentary codes
as were drafted by him are brief and inadequate condensations of
the branches of the law which he attempted to cover, with such
changes as in his judgment were thought to be necessary. Such a con-
ception of jurisprudence as a system could have been entertained
only by one unfamiliar with it either as an art or a science.

Bentham and his school greatly benefited the English law by
agitation for reforms which were needed and which have been ac-
complished largely through the more judicious labors Reforms
of others. The theory of law which he and his successors ^ Codi-*8
entertained has not in the least affected the science fication.
of law in England or elsewhere. The impetus toward codification
which has been so marked in England and America during the last
century has resulted in an improved system of judicial procedure,
and in the revision of the criminal law so as to bring it into harmony
with modern conditions. It has also resulted in reducing to more
concrete and homogeneous form the rules and principles applicable
to some other branches of the law which for practical utility have
been rendered more certain and more easily ascertainable. But
the practice acts, the criminal codes, and the codified laws of part-
nership, sales, and commercial paper have furnished simply a new
starting-point for interpretation and exposition. The spirit and
underlying conceptions of the law of England continue as before.

256 HISTORY OF LAW

Intelligent legislation will henceforth be even more potent as a factor
in the development of the common law than it has been in the past,
and indeed it now constitutes the most suitable channel through which
substantial change may be effected. But jurisprudence will never
be merged into political science, and the law as a whole will never
be reduced to conclusive written form either in the countries where
the civil law has been accepted, or much less in those which accept
the common law.

The futility of any attempt at final codification is illustrated
by the subsequent history of the Justinian Corpus Juris. In the
Subsequent East it was unable to secure full recognition as an em-
History of bodiment of the Roman law, which had been in a some-
Juris of what unscientific but rather practical way compiled in
Justinian, ^he so-called Syrian code fifty years earlier, and which
furnished the foundation for the subsequent legal systems, such as
they were, recognized in the Levant. Soon after the death of Jus-
tinian his Corpus Juris, translated into Greek, became the subject of
further exposition, which with additional revision was embodied in
the Basilica, compiled in the ninth century and generally accepted
as the basis of the law throughout those regions in which the Greek
branch of the Christian Church became predominant.

In the Western Roman Empire Justinian's Corpus Juris was form-
ally promulgated, but for practical purposes it did not supersede
Survival of ^e cru(^e collection of the written law already referred
Theodosian to as the Theodosian Code, and it was not until the
revival of learning in the twelfth century that it exer-
cised any marked influence on the jurisprudence of Western Europe.

The recovery of a comparatively complete manuscript at the
siege of Amalfi in the year 1335 is supposed to have inaugurated
Revival of a new era m the history of law; but though Blackstone's
Study of ^ assumption that the Corpus Juris was then rediscov-
Corpus ered (a popular error which he accepted from learned
Juris. writers on the civil law) has been generally discredited,

it nevertheless remains true that about this time the study of the
Roman civil law as a distinct system was revived, and became an
important element in the advancement of the jurisprudence of the
Western world, and that the Corpus Juris furnished the basis of
this renewed study.

The six centuries intervening between the completion of final
Roman codification and the revival of the study of the Roman
Effect of ^aw a^ *^e seats of learning in Europe and England
Teutonic were filled with the confusion and disorder incident to
[nvasions. ^ incursions of the Teutonic peoples into Roman
territory, and no further development of jurisprudence can be traced.
But many events happened during that period which are of great

HISTORY OF LAW 257

significance in explaining the course of the subsequent history of
the law in the states of Northern Europe and in England.

The characteristic feature of this period was the promulgation
from time to time of the so-called barbarian codes. At the beginning
of the sixth century and before Justinian had even Barbarian
formulated his plans for the codification of the Roman Codes.
law, and within less than a century after the completion of the
Theodosian Code, the second Alaric of the western division of the
Goths, and Theodoric, the great ruler and leader of the eastern
division, each promulgated compilations of laws founded on the
Code of Theodosius. Theodoric 's compilation seems to have had no
permanent effect, for his empire went to pieces soon after his death,
leaving no permanent results as affecting the legal history of the
people over whom he ruled. But the compilation of Alaric under
the name Breviarium was for centuries the law-book for Western
Europe. Later in the sixth century some codes were compiled under
the rulers of other tribes who had come within the limits of the
Roman Empire, the most important of which were the codes of the
Burgundians and the Lombards.

In some of these codes it is expressly indicated that they were for
the government of the Roman people, that is, the subjects of the
Roman Empire whom the invading barbarian tribes Bavarian
had subjected and were attempting to govern. The Roman
Goths, for instance, or the Lombards, did not look upon Codes-
themselves as accepting the laws of the territory into which they
came; but on the contrary they considered that they brought their
own laws with them. Conceiving that these laws were applicable
only to their own people, their rulers attempted to make compilations
of laws based on those which they found in existence in the Roman
territory in accordance with which the Roman subjects should con-
tinue to be governed. And for this purpose they had resort to the
Theodosian Code, so that it is apparent that the barbaric Roman
codes do not include the body of the Roman civil law as represented
by the Corpus Juris, especially the Pandects or Digest, that most
important part composed of excerpts from the writings of jurists.

But not all of the barbarian codes are of this character. A stage
in the development of the Teutonic tribes had been reached similar
to that under which the Twelve Tables were promulgated Teutonic
at Rome, and some of these codes are simply the an- Codes.
nouncement of legislation embodying or adding to the customary
law of the tribe. Even the barbarian rulers who compiled Roman
codes recognized the existence of the customary laws of their tribes
as continuing in force for their own people, and there is little evidence
that this customary law was to any considerable extent affected
for some time by the contact with the Romans ; but inevitably those

258 HISTORY OF LAW

tribes which became permanently located within the territory
which was fully under the dominion of the Roman civilization
adopted the institutions, the language, and the laws which they
found, accepting them gradually as substitutes for their own. The
Teutonic invasion therefore had little permanent effect on the laws
or institutions of the peoples of Southern Europe.

But in Northern Europe the situation was entirely different.

The Salic Law which the Franks brought with them into territory

which had been only partially subjected to the Roman

civilization was wholly Teutonic and showed slight, if

any, traces of Roman influence. It remained the law of France,

substantially unaffected by the civil law, until the study of the

Corpus Juris extended the knowledge of the Roman law into that

region.

In Germany there was from the earliest time of which we have
any definite historical record a body of customary law represented
Sachsen- by the Sachsenspiegel and Schwabenspiegel, first re-
spiegel. duced to written form in the thirteenth century, which
remained long unaffected by the Roman law. And wholly Teutonic
also in origin and development was the body of the law of the Anglo-
Saxons, the first historical monument of which may be said to be the
Dooms of Alfred.

The differentiation which took place between the development
of Teutonic civilization in the north of Europe and a similar develop-
Anglo- ment in England must be largely attributed to the
Saxons. fact that the rulers of the Franks and other Teutonic
tribes were attempting to extend and maintain their authority over
the Romanized people of Southern Europe, and in doing so were
brought into closer contact with the Romans than the Anglo-Saxons
who had gone into England and there developed a civilization free
from external complications until it had reached such a stage that
it could not be fundamentally affected by them.

The Teutonic codes, if they may be designated by a name which
is misleading, as suggesting a stage of development which had not
Teutonic vet been reached, that is, the Salic law, the Sachsen-
Codesnot spiegel, and the laws of the Anglo-Saxons are made up
Jurispru- largely of provisions as to the compensation to be paid
dence. for injuries of various kinds to person and property.

They suggest no conception of systematic jurisprudence; but they
show the general prevalence throughout Northern Europe and Eng-
land of a condition of society which culminated in the feudal
system. Indeed, they may with some propriety be called the feudal
codes as distinct from the Latin codes.

The history of modern jurisprudence may be arranged under four
divisions. That of Eastern Europe, including Russia and Turkey,

HISTORY OF LAW 259

in which the Roman law as represented by the Corpus Juris of Jus-
tinian in some form has remained the basis of the law to jj0(jern
the present time, for even the Mohammedans of Turkey, Jurispru-
although governed by the Koran, have found it necessary dence-
to accept for juristic purposes the corrupt system of Roman law
which they found in use when they made Constantinople the centre
of the Turkish Empire; that of Southern Europe, where the Roman
law has always been the common law of the people; that of Northern
Europe, where the Roman law has become the basis of jurisprudence
by reason of its introduction through political association and the
extension of the influence of the Corpus Juris ; and that of England
and all other countries dominated by the Anglo-Saxons, in which
has been developed a Teutonic system under the name of the common
law.

The extension of Anglo-Saxon domination and the peculiarities
of the system of law which they developed in England and have
carried with them to all parts of the world over which xwo Great
they have extended their power, are so marked that Systems,
the history of modern jurisprudence may properly be said to be con-
cerned with the conflict between two rival judicial systems. The
whole civilized world has been divided between the civil law of
the Romans and the common law of the Anglo-Saxons.

The political circumstances surrounding the attempt of bar-
barian rulers to assume the garb and authority of Roman emperors
served in Northern Europe to put the civil law and the Antagon-
Teutonic customary law into relations of antagonism, ism to Civil
In Prussia the landrecht prevailed as against the civil Northern
law, while in France the civil law was victorious. But Europe,
the ultimate result has been that the entire scientific study of law
in Northern Europe has been devoted to the civil law, which may
properly be said to be the basis of the systematic jurisprudence of
every European country.

In England there have been suggestions of a similar contest;
but so far as there has been any real contest it has existed between
the canon law and the common law, the former being No such
assumed to be an embodiment of the civil law, although Contest in
the points in controversy between the canonists and the England<
common law lawyers did not relate to matters having reference
to the peculiar principles of the civil law. The common law has been
a receptive system. There never was any contention on the one hand
that the civil law was of authority in England, and consequently
there has been no occasion for hostility between the two systems.
Authors and judges have been able to appropriate the learning of
the civil law and apply its principles in new cases for which they
seem to furnish a satisfactory solution without being charged with

260 HISTORY OF LAW

recognizing an alien jurisdiction. The question as to the fundamental
relations between the two systems for historical purposes comes to
this, whether the common law was developed into an independent
system of jurisprudence influenced, as it may have been at some
stages of its history, by the learning of the civil law, but on the
whole substantially indigenous, or whether, on the other hand,
there was no systematic jurisprudence in England save as the con-
ception of general law, and the principles in accordance with which
a system was constructed, were borrowed from civil law sources.

No citation of authority is necessary to support the proposition
that English jurists have almost universally denied any funda-
Common mental derivative connection between the common law
Law not ancj the civil law. They are united in the assertion that
from Civil the systematic jurisprudence in England has been de-
Law, veloped from sources and impulses peculiar to the English
people. And the contention of those who would have us believe
that the common law as a system is fundamentally an outgrowth of
the civil law resolves itself into a claim that authors such as Coke,
Hale, and Blackstone, who have expounded the common law system
and explained its development from Anglo-Saxon sources under
impulses peculiar to it, have been so blinded by prejudice and pro-
vincialism that they have failed to see or to admit the truth.

The historical facts on which the advocates of the claim of the
Historical civil ^aw to be the real foundation for jurisprudence
Facts. m England rest their case may be briefly grouped as

follows :

(1) The Roman law prevailed in England during the period ante-
dating the Anglo-Saxon invasion while Britain was a province of
Roman tne Roman Empire; that is, from A. D. 43 to, say, about
Law in the beginning of the fifth century when the Roman
Britain. legions were withdrawn, and all assertion of Roman
power in Britain was abandoned. It appears that during this period
Papinian, who afterwards became at Rome one of the great com-
mentators of the civil law, administered justice at York as pro-
vincial praetor. But first it must be suggested that the Corpus Juris
had not yet been compiled, and that Roman law had not reached
that definite form which enabled it at the close of the Middle Ages
to extend itself over Europe as the only known body of systematic
law. Again it is to be remembered that in the countries of Northern
Europe which were at the same time under Roman dominion the
civil law did not become established as the foundation of jurispru-
dence until a much later period. And finally and conclusively, there
is not the slightest evidence that the laws and institutions which
prevailed among the Britons in England during the Roman occupa-
tion and as a result of that occupation had any effect on the laws

HISTORY OF LAW 261

and institutions of the Anglo-Saxon invaders. As has already been
pointed out, the Teutonic tribes recognized the personality as dis-
tinct from the territoriality of the law, and preserved for themselves
the social system brought from the fastnesses of Germany. Until a
more fully developed feudal system converted the customary law of
the people into the civil law of a given territory, the relations between
the Anglo-Saxon invaders and the Britons whom they found in
possession of the land was very different from that of the Goths or
Lombards who settled among the more highly civilized people of
Southern Europe. There is no evidence that the Britons themselves
had made any substantial advancement in Roman civilization. The
Anglo-Saxons became the dominant people, not only in military
power but in social organization, and it is not reasonable to suppose
that they abandoned their own institutions and laws and adopted
those of a conquered race no higher in the scale of civilization than
they. What had the Romanized Britons to offer which the invading
Saxons should desire to adopt? So far as there is any evidence, the
Roman influence remained superficial, and was confined to a few
cities where traces of Roman occupancy, as distinct from mere
military conquest, are still to be found. To have adopted Roman
institutions would have involved necessarily the adoption to a
considerable extent of the Roman language, but no one can point
out any substantial traces of the Roman language in the speech
of the Anglo-Saxons at the earliest period of which monuments of the
Anglo-Saxon speech may be found. It is easy to make a catalogue
of similarities between the Anglo-Saxon law and the civil law as to
particular and disconnected subjects. But such analogies may be
traced between any two systems of law. Those who reason by means
of such analogies might trace our jury system, for instance, to the
Mosaic Code or the jurisprudence of Egypt with as much assurance
as they do to the civil law. Until some historical connection can be
established between the laws and institutions of the Anglo-Saxons
in England and those of the Romanized Britons, we shall be justi-
fied in accepting the belief that the laws of the Anglo-Saxons, such
as they may have been, were of Teutonic and not Roman origin.

(2) During the Anglo-Saxon period, that is, from the time of
the invasion down to the time of the Norman Conquest, the only
possible Romanizing influence which could have been D •__ *
brought to bear on the laws of England were those glo-Saxon
resulting from the introduction of Christianity by mis- Penod-
sionaries from Rome, and the study by learned men of continental
systems of law. Much has been said of the influence which bishops
and priests from Rome might have exerted on the law. But the extent
of such influence is a matter of pure surmise. So far as the monu-
ments of Anglo-Saxon law afford any evidence, there was no Roman-

262 HISTORY OF LAW

ization from this source. The system of courts was purely Anglo-
Saxon, and so was the procedure. The age was not one marked among
the English or among Teutonic peoples in the northern part of Europe
by any enthusiasm in the study of jurisprudence. From Alfred to
Edward the Confessor the laws, so far as we have any evidence as
to what they were, remained purely Teutonic. The Danish invasion
introduced no Roman elements, for as yet the Danes had not acquired
Roman institutions or laws. The laws of Cnut were as purely Teu-
tonic as those of Alfred.

(3) The Norman invasion was the result of a claim of William
the Conqueror to the throne of England by inheritance, and his
Norman so-called conquest was simply the establishment by
Conquest, force of his right to rule as an English king. From the
first he recognized the Anglo-Saxon laws and institutions, and re-
peatedly bound himself to observe the laws of Edward the Confessor.
The Normans introduced in its full development the feudal system,
but that was distinctly Teutonic and antagonistic to the social
system of Rome. The laws of Normandy are to be discovered by
a study of the various compilations of its customary laws, and such
study discovers institutions and conceptions of law purely Teutonic
and almost exclusively feudal. No one has been able to discover in
the various coutumiers which were a favorite source from which to
ascertain the early law of England any traces of Romanization.
The Assize de Jerusalem which the Crusaders promulgated in the
East, and which maintained some precarious existence there for a
considerable period, was feudal and not Roman. With the Normans
came the distinct conception of territoriality, for the feudal system
was territorial rather than personal. The sovereignty of the lord
was complete and absolute within the limits of his domain, and
took no account of the principles of the different systems of law
applicable to people of different nationalities.

(4) Law in England took systematic form during the century
and a half from the beginning of the reign of Henry II to the end
Beginning of the reign of Edward I. Were the form and conception
^ic^a^y1" °^ ^is systematic law derived from the civil law? Around
in England, this question the controversy as to the nature of the
indebtedness of the common law to the Roman law properly turns.
If the Anglo-Saxon law took systematic form independently of any
controlling influences from the civil law, then it is as much entitled
to be considered a self-dependent system as the Roman law, which,
although it assimilated to itself foreign material, was in its spirit
and form a development of the Roman people.

During the reign of Henry II the elements which had before
that time been lacking to entitle the common law of the Anglo-
Saxons to be regarded as a system of jurisprudence were added to

HISTORY OF LAW 263

it. Previously the law had been administered almost entirely in
local jurisdictions without any systematic supervision. System
But when the king sent his justices into different counties bgginswith
they regarded themselves as administering the king's law Henry II.
in the king's name, that is, as administering a national law. Previ-
ously there had been no form of judicial trial, which properly involves
the application of rules of law previously conceived of to statements
of fact to be ascertained according to some form of judicial investi-
gation. But that king introduced the various assizes by which facts
were to be determined in order to ascertain the applicability of certain
rules of feudal tenure, and thus laid the foundation for a trial to the
country, that is, by jury, of controversies which otherwise would have
been submitted for settlement by compurgation or ordeal. From
the time of Henry II the records of judicial proceedings are pre-
served, following a somewhat well-established form of procedure.

The first English law-book, attributed to Glanville and entitled
A Treatise on the Laws and Customs of the Kingdom of England,
was written and made public at the close of this reign,
that is, between 1187 and 1189. It is immaterial whether
the authorship of that work be attributed to Glanville, who was
Chief Justice of the King's Court near the close of that reign, or to
another. It is a systematic treatise purporting to state the law of
England as administered in the courts. It is not a compilation
of statutes, but an exposition of a judicial system, written for the
purpose of making the laws which the courts administered known
to those participating in such administration. There is no reason to
assume that the author of this treatise was ignorant of Roman
civil law, the study of which, after its revival in the schools at
Bologna and other seats of learning, had been prosecuted by stu-
dents going abroad, and under Vacarius, a civilian lecturing at
Oxford prior to 1171, and there is abundant internal evidence in
the book itself of the familiarity of the author with civil law doctrines.
But instead of pursuing the method of the Institutes of Justinian,
the author plunges at once into an explanation of the writs known to
the English law, by which proceedings in the King's Courts were
to be commenced and in accordance with which the nature of the
proceedings in any particular case was to be determined, without
paying any attention to the natural law or discussing abstractly
the rights of persons or property; and two thirds of the book is
taken up with these writs, of which it is apparent that the author
had made an extensive collection. Now the writ by which a suit
was commenced in the courts of the king, as distinct from the
process by which suits were instituted in the local courts, was not
analogous to anything of which one familiar with the civil law only
would have knowledge. If the author of the treatise had had in

264 HISTORY OF LAW

mind the purpose to expound the civil law as recognized in and
applicable to England, he would naturally have selected for expo-
sition some features common to the two systems from which he
might have built up a presentation of English law. On the con-
trary he selected a peculiarity essentially English, and introduced
that method of explanation of the law by means of the nature and
form of the writ in each particular class of cases which is so char-
acteristic of the early English system. It is hardly to be believed,
then, that the system which the author of the so-called Glanville
treatise conceived of as the English law was in any way dependent
for its form or substance on the civil law, which was then receiving
so much attention abroad, and had so recently been the subject of
instruction at Oxford.

If it be contended that English jurisprudence did not take definite
form until during the reign of Henry III, about seventy years after
Glanville, when Henry de Bracton wrote his great
work in five books on The Laws and Customs of Eng-
land, and that this was the first arrangement of the English law
in a systematic manner, and further that this treatise shows the
distinct recognition and acceptance of the forms and principles of
the Corpus Juris Civilis, it is necessary, in discussing the issue thus
raised, to make a thorough estimate of the nature of the work
which Bracton really did in formulating the English system. In
speaking of the laws of England as distinct from those of other
countries, in that they are not written and are founded on usage
and custom, but are nevertheless entitled to the name of laws be-
cause they have the force of law, Bracton says it should be known
that the nature of the treatise consists of "the facts and the cases
which daily emerge and happen in the realm of England that it
may be known what is the proper action and what is the proper
writ according as the plaint shall be real or personal, and what
acts are thereupon to be completed, and what enrollments are to
be made according to the pleas and the objections, in accusing and
in proving, and in defending and in excepting, and in replying and
so forth. " Proceeding, then, with a somewhat philosophical state-
ment of the nature of law and definitions of jurisprudence, of
equity, and of rights, all of which are evidently fashioned after the
exposition of the civil law found in Azo's Summa, a treatise then
well known, and to which the author makes specific reference, and
some further theoretical exposition of the nature of rights in things
and the method of acquiring them, he proceeds in his Third Book
with a discussion of actions, still following his civil law guide,
although adapting the matter to some extent to common law pro-
cedure. But in the Second Treatise of the Third Book he speaks of
the Crown, and under that head discusses the law of crimes, and

HISTORY OF LAW 265

for this subject he apparently finds no guidance in the civil law;
and in the remainder of the work he describes with great elaboration
the various assizes, the writ of right, essoins, warranty, and other
subjects peculiar to the English law, without any indebtedness, so
far as can be discovered, to the form or substance of the Roman
civil law. And throughout all that portion of the treatise, which
constitutes its major part, in which he purports to present the law as
administered in England, he refers to the decisions of the judges as
the satisfactory evidence of what the law of England is on the points
discussed, and makes no pretension of resting upon the authority of
the civil law, nor is there any internal evidence of his having done so.

In fact, Bracton's treatise is an exposition of a distinctive English
system of jurisprudence, prefaced by a scholar's disquisition on the
general nature of law derived confessedly from a study Nature of
of the Roman system. It seems to be well established Bracton's
that Bracton was a cleric, and therefore educated in or '
the canon law, which embodied largely the principles and methods
of the civil law, and that on the other hand Glanville was not a cleric,
but only a common law judge; and perhaps this suggestion as to the
preliminary education of the two men may explain the fact that
Bracton prefaced his treatise with an exposition of civil law learning.

If the law of England as a system of jurisprudence was first given
definite form by Bracton, then is that system to be found in the first
portion of his treatise, confessedly modeled after the ^. -j
civil law, or in the latter portion, which is devoted to the Law in
law of England as expounded by the judges and resting Bracton-
on their authority and not on civil law authority or learning? Clearly
the latter assumption is the correct one; for when Bracton is sub-
sequently cited as an authority on English law, reference is made to
the portion of the work which purports to state English law pure
and simple, and not to the portion which contains an exposition
of the general principles of law derived from civilian sources. And
when a writer generally known by the name of Britton attempted,
during the early years of Edward I and within a quarter of a century
after Bracton's time, to state the English law, purporting to speak
in the name of the King, while he evidently borrowed much of his
material from Bracton, he ignored entirely the general exposition of
law and confined himself strictly to those subjects discussed in that
portion of Bracton's work professing to deal with the English law as
he found it ; and in this respect he followed the method of Glanville
rather than that of Bracton.

Much light is thrown on Bracton's sources of authority for the
English law by his voluminous notebook recently trans- Bracton>s
lated and edited, in which are set forth memoranda of Note-
many cases decided by the judges. These memoranda book'

266 HISTORY OF LAW

evidently furnished the material in the light of which the English
law was expounded by the author in his treatise, and they serve
to characterize Bracton as in a proper sense the first exponent of
a system of law founded upon judicial decisions and the records of
courts as distinct from the nature and form of the peculiar writs by
which actions in the English courts were instituted. From the time
of Edward I to the present the material resorted to by judges,
lawyers, and students consists of decisions in particular cases, pre-
served first in the Year-Books and subsequently in the various series
of English reports, and later made the subject of exposition by text-
writers. The effort of Bracton to introduce a scientific system of
general law by following civil law exposition, if there was any such
effort, was a complete failure; and after his time judges, lawyers,
authors, and students resorted to judicial decisions as found in the
reports, and collected by Fitzherbert, Brooke, and other digesters
under heads having no reference whatever to civil law arrangement,
but adapted strictly to the subjects under which the distinctively
English law naturally arranged itself.

Blackstone's arrangement of the law under four headings, Rights
of Persons, Rights of Things, Private Wrongs, and Public Wrongs, is
notoriously unscientific, but it is based on civil law notions. The
fact is that the classification of the Corpus Juris Civilis was not the
result of any scientific conceptions, but was founded on custom,
which represented an effort to reach an arrangement intelligible and
convenient. Our present classification of the common law has been
worked out in the same way.

For the present discussion it is immaterial to what extent judges
and authors resorted to the civil law after Bracton 's time to discover
Subsequent principles which might be applied in the decision of
Resort to cases not covered by English procedure. That such re-
Civil Law. gorj. wag k^ especially in equity and admiralty courts,
may be fully conceded. But this has little bearing on the proposition
that the common law as a scientific system of jurisprudence is dis-
tinctively English and does not owe its form or substance to any
learning derived from civil law sources.

The effort to make use of the civil law in illustrating and expound-
ing the common law is apparent in both English and American
Citation of treatises on branches of the law. Blackstone not infre-
inText-W Quently refers to civil law doctrines, and Kent and
books. Story sometimes make such references at considerable

length. But the practice has largely fallen into disuse, for the
evident reason that the decisions of the English and American
courts furnish better illustrations of the principles which have been
and will be applied in the decision of cases than the Corpus Juris
of Justinian or the voluminous expositions of the civil law to be

HISTORY OF LAW 267

found in countries where that system prevails. There has been no
effort to ignore the civil law or to shut out any possible use which
can be made of it in the exposition or development of the English
system, but common law lawyers have reached the practical con-
clusion that they cannot secure favorable consideration by common
law or equity courts of arguments based on the rules of the civil
law, and the judges have found that they can reach a more satis-
factory solution of disputed questions of law by considering the
analogies found in the decisions of courts applying the principles of
the common law system than by resorting to civil law authorities.

The indebtedness, then, of the common law to the civil law is not
for scientific form nor substantial content, but for words and phrases
which have afforded a convenient channel through which indebted-
juristic ideas might be expressed, and for some partic- ness of
ular rules applicable in the solution of legal difficulties to Civil
which, having arisen among Romanized peoples on ac- Law.
count of their more advanced civilization, gave occasion for the
announcement of principles which were helpful to the common law
jurist in similar cases.

A comparison between the English system of law and the civil
law system of the Northern European states suggests not a greater
indebtedness to the civil law on the part of the common Indebted-
law, but a smaller indebtedness of the Northern European £j^ ^aw
systems. Glanville expresses the essential distinction toSys-
between the laws of England and those of European ijorthern
countries when he says that the English laws, although Europe,
not written, may be termed laws, for the mere want of writing does
not deprive them of that character. And indeed, the resemblance
of the codes of France, Germany, Austria, and Belgium to the Jus-
tinian Code in matters of form is a strong argument against the
assumption that the systems of jurisprudence of these countries are
directly derived from the Roman system as a fountain-head. For the
science of law is a social science and the result of evolution. As con-
ditions change, so the law must change, and conceptions familiar
to the people of one century become unintelligible to their successors
of the next. Those who expound the common law take great pride
in the continuity of the institutions and principles which they find
recognized therein traceable to Anglo-Saxon or Norman sources; but
for practical purposes the decisions of the judges represented in the
Year-Books and collected in Fitzherbert's Abridgment are no more
intelligible to the judge or lawyer of to-day who is properly concerned
primarily with the decision of cases now arising than the opinions
of Paul, Ulpian, or Papinian in the second or third century of the
Christian era. Indeed, the decisions found in the Year-Books are less
intelligible to the modern lawyer, for they deal with crude facts

268 HISTORY OF LAW

and a procedure which is obsolete, so that the issues are not to be
understood without a laborious tracing of the historical connection
between the law of that time and the law of the present, while the
generalizations of the civilian writers have in appearance at least
some force and meaning. A similar comparison may be made be-
tween the French or German or Belgian codes and the Code of
Justinian. The subject-matter is so entirely different, and the legal
relations applicable to existing social conditions are so dissimilar,
that only to a very limited extent is the one illuminated by the other.
For example, the law of commercial paper, which is supposed to
have been incorporated into the English law from civil law coun-
tries by the recognition in England of the custom of merchants
which had been brought from continental countries, was entirely
unknown to the lawyer of the time of Justinian. Indeed, so rapid,
as compared with the course of general historical development,
have been the changes in social conditions that the Code NapoUon,
the latest typical civil law code, promulgated in 1807, contains but
a small part of the written law actually administered in France,
and it has necessarily been supplemented by codified legislation of
almost equal bulk.

For historical purposes, therefore, it may properly be said that
there are in the civilized world two independent systems of law,
which have had marked and important relations to each other, but
which have grown from distinct sources; and it may not be entirely
foreign to the province of an historical discussion to notice in con-
clusion and briefly their substantial differences.

The most striking difference is that which has been recognized ever
since the earliest scientific exposition of the common law system,
Common ^at ^ remains substantially a body of unwritten law,
Law not that is, a body of law not resting upon legislative author-
written. }tv. whjie t^g gjvi} jaW) wherever it prevails, has been
reduced to authoritative written form. In other words, the common
law remains largely a law of precedent, while the civil law is one of
enactment. The former is more easily adapted to changed conditions,
the latter more easily reduced to scientific statement. The former
is cumbersome on account of the immense mass of material to which
resort must be had in ascertaining the rule which should be applied
to a particular case; the latter is uncertain and indefinite because
of the difficulty in making authoritative exposition or interpreting
statutory language as applied to new conditions. Even in the field
of authoritative legislation the common law is more adjustable
than the civil law because of the greater freedom which the courts
exercise in the interpretation of statutory enactments additional to
or superseding the unwritten law. The simplicity and brevity of
written codes constitute attractions for the writer on jurisprudence

HISTORY OF LAW 269

not justified by their results in the actual administration of the
law.

Another marked difference between the two systems is the separa-
tion in practical administration of the functions of determining the
law and the facts for the particular case. There was a Separation
similar separation under the civil law as administered ofQues-
at Rome, with this difference, however, that the general L&W an<j
principle to be applied to the case was determined ab- Fact,
stractly beforehand, and the facts ascertained afterwards, while in
the common law system the principles are expounded only with
reference to the particular facts. But in the modern civil law prin-
ciples and facts are usually determined in one investigation and
without any definite distinction as between the two processes. The
common law jury trial is cumbersome, and sometimes unsatisfactory
by reason of this separation of functions between the jury and the
judge; but on the whole the development of the law as a system is
thereby promoted, and there is a practical advantage in placing the
judge with relation to the case in the attitude of an arbitrator of the
law, superintending only the determination of questions of fact. It
can hardly be said that in this respect either system possesses any
marked advantage over the other. Certainly there would be no
gain to either system from any attempt to introduce into it the
methods of the other. Each has had its historical growth, and each
has become a part of the social organization of the people among
whom it prevails.

It may be justly claimed for the common law system that it
represents more fully the conception of law as the outgrowth of
social conditions, and resting for its authority upon the Rests on
aggregate social will. There is something more than
rhetorical commonplace in speaking of the common Will,
law as the law of the people. The civil law, on the other hand, is pecu-
liarly the law of a sovereign, whether that sovereign be a monarch
or a legislative body with unrestricted powers.

It is this last distinction which suggests a certain dramatic
interest attaching to the contest for supremacy on the American
continents between the Latin races and the Anglo- pjyjgjQj. *
Saxon race as affecting the history of law. The Spaniards America
planted the civil law in the states of South America and common
in Mexico, where it still remains the foundation of juris- Law and
prudence. The Anglo-Saxons brought the common law Law-

to the Atlantic coast of the continent of North America. The
final supremacy of the common law in Canada and in the other
portions of the North American Continent east of the Mississippi
was determined by the result of the long conflict between the English
and the French. But it remained for the United States, in the acqui-

270 HISTORY OF LAW

sition of the territory of the Louisiana Purchase, to determine that
the common law system should substantially prevail in that great
region. Those ambitious and adventurous pioneers of Latin civil-
ization, La Salle, Marquette, and Joliet, blazed the way for the civil
law, but the legitimate fruits of their struggle were not gathered by
the civil law, but on the other hand were substantially denied to it
when Napoleon sold the Louisiana Territory to the United States.
If the common law system is better suited to the needs of a free
people and an advancing civilization than the civil law, which ob-
tained its historical form under an absolute empire, then it is fortunate
for humanity, and in particular for the people of this great Western
country, that in the conflict of races supremacy was established for
the common law by the success of those who inherited Anglo-Saxon
institutions and established them throughout the region between
the Mississippi and the Pacific.

CHARACTERISTICS OF THE COMMON LAW

BY NATHAN ABBOTT

[Nathan Abbott, Professor of Law, Leland Stanford Jr. University, since 1894;
b. July 11, 1854, Norridgewock, Maine. A.B.Yale; LL.B. Boston; Professor of
Law, University of Michigan, 1891-92; ibid. Northwestern University, 1892-94.]

DURING the three centuries prior to Lord Coke the common law
of England in some way or other gathered itself together out of
custom and differentiated itself from other legal systems so far as to
have gained a name and home — the common law of England. It
was the great intellectual achievement of a people large enough and
strong enough to have ideas of its own, and isolated and individual
enough to develop those ideas in its own way. In the three centuries
subsequent to Lord Coke its child in America has lived and grown
after the manner of its kind, but it has not yet gained a new name,
although it has a new home. It is the common law of England in
America — the common law of England plus "those slow accretions
and changes that were inevitable where a free and expanding people
expressed their jural needs. This is also the great intellectual achieve-
ment of the American people; in the eighteenth century its one
intellectual product, in the nineteenth century its greatest intel-
lectual product.

The common law in both countries in its beginning was the ex-
pression of a free people's needs and standards of justice, and was
not essentially different in its nature from their needs and standards
as expressed in art or in literature. And the common law being the
product of a free people is a living institution possessed, not only of
a vital and conservative, but also of an assimilative and progressive
power.

The vicissitudes of parent and child exemplify what such a living
institution can endure. But law as a living institution is not as stable
as living matter. A cross-section of a tree at its base is not essentially
different from one made one hundred feet from its base. A cross-
section of the common law at one time is not necessarily like one
made at an earlier or later time. Its nature changes with the national
views of that on which law rests. This in part explains the difficulties
encountered in denning law. What at one time is custom at another
time is law, and yet each will have a like compelling force.

The purpose of this paper is to give some account of the funda-
mental characteristics of the common law at two somewhat widely
separated periods and to contrast them. One period is that of the
common law in the time of Lord Coke, the other the common law

272 HISTORY OF LAW

in America at the present day. The periods are separated by three
centuries, or those of the common law in sixteen hundred and in
nineteen hundred. The period with Lord Coke is selected because
during his time the jurisdiction of the common law courts was
defined, limits to the royal prerogative set, and chancery made
a court of ordinary jurisdiction for equity; and because this was the
time of the beginning of colonization in America. The common law
of Lord Coke was the common law of Winthrop and Smith.

Like other forms of thought manifested in literature, the common
law is the product of influences that can be discovered and whose
' effects can be traced. These influences may be called direct, if exer-
cised by the people or the judges, and indirect if occasioned by
forces operating on the people or the judges. A body of law which
starts with the proposition that it is the custom of the people soon
arrives at the stage where the solution of legal questions calls for the
aid of either outside systems or reason. According as the people or
the legal profession applying this reason or deductions from the
outside system have been the more concerned in law-making, the
characteristics of the law have been popular or technical and con-
servative or progressive. It is therefore necessary, if we would dis-
cover the characteristics of the common law, to say something of
the influences that contributed to shape it prior to Lord Coke; then
to note its characteristics in his day; and then to speak of the
influences that operated in America to influence its unwritten law,
and to note its characteristics so far as they are disclosed by certain
resemblances in the law of the several states.

Of the external influences, the canon and the civil law were most
potent and operated upon the common law by way of compression
rather than repression. Apprehensions of those systems and con-
tentions with them intensified the loyalty of the English people for
their own system. The power of the advocates of the canon and
civil law in the universities, combined with the location of the courts
at Westminster, tended to develop the schools of common law in
the Inns of Court. The decline of the local courts with the growth
of courts at Westminster made them less responsive to and expressive
of popular needs, and may have impaired the popular regard for the
common law. How far the oft-quoted phrase in the Statute of Merton
justifies wide generalization, it is not easy to say. But the influence
of the Inns of Court would seem inevitably to substitute a profes-
sional for a popular standard of justice. The concentration in those
Inns of a body of specialists, who for years dealt with problems,
worked out in moots, in the halls, and in arguments in court under the
scholastic training of the century before Lord Coke, must have
developed a body of logicians and a legal system founded on logic.
In the Inns of Court, like bees in a hive, the lawyers secreted the law

CHARACTERISTICS OF THE COMMON LAW 273

of England. It was no longer the custom of the people, although
so described, but a highly technical law. That the written law and
the pleadings were expressed in Latin or French would also tend
to restrict its expression to lawyers. These influences would tend to
impair the close relation of the people to their law that early had
existed. The introduction of a technical procedure which under the
hand of the professional lawyer would tend to be an end rather than
the means would be misunderstood by the people. Authorities
given in Parke's History of Chancery show considerable evidence in the
statutes and in the debates in Parliament that the common people
were discontented with the common law and its professors. But the
lawyers were calling their handiwork the perfection of reason. The
pages of Coke and Plowden abound with cases that are in no way
related to the customs of the people. As Professor Gray says, " With
a great part of the law the customs of the people have obviously
had nothing more to do than have the motions of the planets. The
enormous mass of the law of pleading and of evidence has been
born and bred within the four walls of a court. The community at
large, those who make custom, know absolutely nothing about it.
So with a great part of those legal rules which are not plainly of an
ethical character. For instance, the rule in Shelly's Case, is that a
product of the 'common conscience of the people'; or the rule that
'dying without issue' means an indefinite failure of issue; or is the
rule that a parol promise without consideration cannot be enforced
a spontaneous evolution of the popular mind?" (" Definitions and
Questions in Jurisprudence," 6 Harvard Law Review, 21-32, 1892.)
It is evident, then, that the change from popular to professional
factors occasioned by external pressure and internal development
have affected the fundamental characteristics of the common law.

In the growth of the sovereign power and the legislative, judicial,
and ecclesiastical elements of society each has exalted its powers and
extended its frontiers. There comes a time when the last meet
and tend to overlap. The controversies engendered in adjusting
the powers and denning the frontiers have created the larger part of
constitutional law, the province of legislation, and the jurisdiction
of courts. The common law was affected in its scope by the contro-
versies of its judges with canonists and chancellors. And the content
of the law was modified by the struggle between the different courts
for litigants and preeminence.

There are two forces having their source in national traits which
contributed to shape English law; one is the liking for fair play and
the natural turn of mind for litigation that is found in the English
people. By this is meant something more than a fancy for contention
and technicality; rather the right settlement of disputes in an
orderly and judicial way. Perhaps at this day it may be difficult to

274 HISTORY OF LAW

affirm that this is a cause or an effect from such masterful hands as
those of Henry II. But the reliance on courts has tended to the de-
velopment of law and the independence of the judge. It is of this that
Lieber says, " It is a great element of civil liberty and part of a real
government of law which in its totality has been developed by the
Anglican tribe alone. It is this portion of freemen alone on the face of
the earth which enjoys it in its totality." (Civ. Lib. and Self -Go vt.,
p. 203.) The other is a respect for authority deep-seated in the
English people, a respect arising either from position or age. This
in part explains why precedents have such a hold on the courts,
and its lack is one of the facts to be noted in America. It has been
said that the reliance on precedents is due to an incapacity in the
English to reason generally. Commenting on the arguments in the
debates on impositions in 1610, in which we find an early and
remarkable use of precedents, Mr. Gardner says, "The speakers on
both sides seemed to have had a horror of general reasoning."
(2 Hist, of Eng. 75.) De Tocqueville noted this trait in Englishmen
and its absence in Americans, and devotes a chapter to "Why
the Americans show more aptitude and taste for general ideas than
their forefathers, the English. " (Dem. in Am. vol. n, chap. 3.) It
will be instructive to follow the Japanese in their jural growth under
a French code with their seeming natural capacity for generalization,
but with their present tendency to disregard precedent excepting
for illustration. (See address of Dr. Rokuichino Masujima before
N. Y. State Bar Ass'n, 1903.) The other aspect of authority arising
from age is commented on by Mr. Gardner in connection with the
same impost debates, " Our ancestors did not refer to precedents
merely because they were anxious to tread in the steps of those
who went before them, but because it was their settled belief that
England had always been well governed and prosperous. They
quoted a statute not because it was old but because they knew that,
ninety-nine times out of every hundred, their predecessors had
passed good laws." Lord Ellesmere in Calvin's Case, quoting from the
Year- Books, said, "Our predecessors were as sage and learned as we
be." In connection with precedent in the time of Coke it is to be
noted that during the reign of Elizabeth the printing-press was busy
reproducing law-books. The labors of Tottell made the Year-Books
a "profitable and popular literature." (See Soule, " Year-Book Bib-
liography," 14 Harvard Law Review, 563, 564.) There were edi-
tions of all the treatises, and these with the abridgments opened up
the past and ancient laws to the professional students in the Inns in
a new and forceful way.

In trying to describe the fundamental characteristics of the com-
mon law I appreciate that it will be difficult to say anything that
is not trite or commonplace. To obviate this in part I shall select

CHARACTERISTICS OF THE COMMON LAW 275

a case in the time of Lord Coke, and with it endeavor to illustrate
such characteristics as seem to me fundamental. The case chosen
is Calvin's. It was an exceptional case, interesting in itself and for
what it discloses by inference. It also is a convenient case because
of its relation to the American colonists, and for its effect upon the
political debates of the middle of the eighteenth century.

From the meeting of the crowns of Scotland and of England in
James I arose the question whether the post^-nati, or those born in
Scotland after the accession of James to the crown of England, were
aliens in England. A proclamation of James directly answered this
in the negative. Commissioners of both countries proposed to the
Parliaments of both countries that the common law of both nations
should be declared to be that all born in either nation since James
was king of both were mutually naturalized in both. The House of
Lords and ten out of twelve of the judges of England supported this
view. But the Commons would not assent to declare that the com-
mon law was as proposed. It was therefore determined to bring the
question before the courts. For this purpose land was bought in
London in the name of one miscalled Calvin, an infant born in
Scotland since the accession of James to the English throne, and
a suit was brought in Calvin's name in the King's Bench to gain
possession of the free-hold. And a bill was brought in Chancery for
detainer of the title-deeds. A demurrer in both cases raised the
question in each case whether the plaintiff being an alien born be
disabled to bring any real or personal action for land within England.
After argument in the King's Bench, both cases were adjourned
into the Exchequer Chamber, and there argued by counsel and all
the judges of England and Lord Chancellor Ellesmere. The Lord
Chancellor and twelve out of the fourteen judges decided the demurrer
in favor of the plaintiff on the ground that, having been born since
the accession of James, he was not an alien in England.1

The first characteristic illustrated by Calvin's Case is that the
common law deals with facts.

Under some systems a hypothetical question can be presented to
the judges. In Calvin's Case one might have been framed generally:
Is a person born in Scotland since James I became King of England
an alien in England? But such a proceeding is not possible by the
common law. It was necessary to present to the judges the facts
of a real case. There must be parties before the court before it will
act. And without them and a specific question to decide, all the
utterances of the court are obiter. Bacon said in his argument, " The

1 Calvin's Case is reported in 7 Rep. 4a (1608). The arguments in committee
in 1606 in Moore, p. 790; and both of these, with the argument of Bacon, Solicitor-
General, counsel for Calvin, in the Exchequer Chamber, and Lord Chancellor
Ellesmere's opinion in the Exchequer Chamber, are in 2 How. State Trials,
559-695.

276 HISTORY OF LAW

case is no feigned or framed case, but a true case between two
parties." Legislation is an endeavor to find an answer to an inde-
finite number of hypothetical cases. The courts endeavor to find an
answer to a single concrete case that has arisen in the past. This
characteristic of common law has the inconvenience that a point of
law may long be uncertain for lack of parties willing to litigate it. It
is especially inconvenient in America, where the constitutionality of
a statute remains to be determined until litigation arises. But this
inconvenience has not occasioned any change in the theory of the
common law.

Dealing with facts alone, the common law does not judge of un-
expressed thoughts, theories, or opinions. The year before Calvin's
Case was decided, Lord Coke wrote, "The Lords of the Council of
Whitehall demanded of Popham, Chief Justice, and myself, upon
motion made by the Commons in Parliament, in what cases the
Ordinary may examine any person ex offido upon oath; and upon good
consideration and in view of our books, we answered to the Lords
of the Council at another day in the Council Chamber, that 'No
man ecclesiastical or temporal shall be examined upon secret thoughts
of his heart, or of his secret opinion; but something ought to be
objected to against him which he hath spoken or done."1 (Oath
Ex Offido, 12 Rep. 2629 (1607).

A second characteristic of the common law is its adaptability
within rigid limits. "The most distinctively English trait of our
medieval law is its ' formulary system' of actions. " (2 P. & M. Hist.
E. L. 556.) Lord Ellesmere touches upon the elasticity of the
ancient common law where in the case of need a new writ could be
framed in Chancery so that no one need depart without remedy.
But it was now the "closed cycle of original suits, the catalogue of
forms of action to which naught but statute could make addition."
(Mait. Ed. Bract. N. B. vol. i, p. 6.) "It were better to live under a
certain known law though hard sometimes in a few cases than to be
subjected to the alterable discretion of any judge," said Chief Justice
Popham in commendation of the law of England in his opinion before
the Lord's Committee. (2 How. St. Tr. 569.) The litigant could
choose a definite weapon, but at his peril. The judges were passive
if he erred. " That is part of the fundamental methods of the com-
mon law; the party can have the law's help only by helping himself
first. On these terms and not otherwise it is open to all." (Sir
Frederick Pollock, " Ex. of the Common Law," 14 Col. Law Rev. 20.)
The courts did not necessarily initiate proceedings even in the case
of crimes. In legal controversies the choice of weapons was large,
and within their limits the common law could deal with any matter,
simple or complex, and with any party, whether single or many,
and could reduce all litigation to the simple formula, Command A

CHARACTERISTICS OF THE COMMON LAW 277

that without delay he render a certain thing to B or do full right to B.
Calvin's Case neatly illustrates this adaptability. By a writ of assize
and a demurrer the whole matter was capable of consideration and
settlement.

A third characteristic of the common law is its generality. No one
was above the law, and every man, whatever his rank, under the same
circumstances, was subject to the same law and in the same courts.
The ancient law has been stated in the thirteenth century in the
Statute of Marlborough (1267) : " All persons as well of high as of low
estate shall receive justice in the King's Courts." Of this Coke says
(2 Inst. 103), "This is the golden met-wand that the law appointeth
to measure the cases of all and singular persons, high and low, to
have and receive justice in the King's Courts." His added words,
"For the King hath distributed his judicial power to several courts
of justice, and courts of justice ought to determine all causes, and
that all private revenges bee avoided " (see also 4 Inst. 71), suggest
Sir Frederick Pollock's generalization, not wholly in point in this
connection, but conveniently noted here, "The King's Courts, at
the outset of their career, came under a rule which we shall find to
run through the whole of our legal history and never to have been
neglected with impunity. It may be expressed thus: Extraordinary
jurisdiction succeeds only by becoming ordinary. By this we mean
not only that the judgment and remedies which were once matters
of grace have become matters of common right, but the right must
be done according to the fundamental ideas of English justice."
(" Expansion of the C. L." 14 Col. L. Rev. 17.) King James claimed
that he had not delegated all his powers as a law-giver. Lord Elles-
mere argued that his proclamation controlled Calvin's Case, summariz-
ing it as follows: "So now if this question seems difficult, that
neither direct law, nor examples, nor precedents, nor application of
like cases, nor discourse of reason, nor the grave opinion of the
learned and reverend judges, can resolve it, here is a certain rule, how
both by the civile law and the ancient common lawe of England it
may and ought to be decided; that is, by a sentence of the most
religious, learned, and judicious King that ever this kingdom or
island had." (2 H. St. L. 693.) Lord Ellesmere again argued on the
same line two years later in the Case of Proclamations. (12 Rep. 74.)

One other point needs to be referred to. James, the year prior
to Calvin's Case, had claimed that "the judges were but the delegates
of the King, and the King may take what causes he should please
to determine, from the determination of the judges and may deter-
mine them himself." (12 Rep. 63.) But the common law has settled
that the judges are more than delegates, and that power once im-
parted to them will not return to the King.

A fourth characteristic of the common law is that the proceedings

278 HISTORY OF LAW

in the courts are public. In this regard there was a distinction in
Lord Coke's time between criminal and civil proceedings. Of the
former it may be said that when the colonists came to America
a prisoner was kept in confinement more or less secret till his trial
and could not prepare for his defense. He had no counsel either
before or at the trial. At the trial there were no rules of evidence as
we understand the expression, and the accused could not call wit-
nesses in his own behalf. (1 Stephens's Hist. Grim. Law of Eng.,
350.) But of civil causes, as Lord Coke said, "All causes ought to
be heard, ordered, and determined before the judges of the King's
Court openly in the King's Courts, whither all persons may resort,
and in no chambers or other private places; for the judges are not
judges of chambers, but of courts, and therefore in open court where
the parties' councell and attorneys attend, ought orders, rules,
awards, and judgements to be made and given, and not in chambers
and other private places, where a man may lose his cause, or receive
great prejudice, or delay in his absence for want of defense. Nay,
the judge that ordereth or ruleth a cause in his chambers, though
his order or rule be just, yet offendeth he the law because he doth it
not in court." (2 Inst. 103.)

It is not merely for the public good that the English secured a pub-
lic trial for civil and criminal causes, inestimable as is this feature of
the common law. But all proceedings must be open; in some cases
they are too open. But the general advantage outweighs this defect.
But there is another aspect to this subject, namely the educative. The
educational advantage to the public I consider trifling in civil cases.
But the educational advantage to the bar and to students is well
stated by Coke. " It is one amongst others of the great honours of the
common law that cases of great difficulty are never adjudged or
resolved in tenebris or sub silentio suppressis rationibus ; but in open
court and there upon solemn and elaborate arguments, by counsel
learned of either party; and after that at the bench by the judges,
where they argue seriatim upon certain days openly and purposely
fixed, declaring at large the authorities, reasons, and causes of their
judgments and resolutions in every such particular case (habet enim
necsio quid energiae viva vox) ; a reverend and honorable proceeding
in law, a grateful satisfaction to the parties, and a great instruction
and direction to the attentive and studious hearers." (9 Rep. Pref.
p. 38.)

A fifth characteristic of the common law is that in deciding ques-
tions of law the judges are controlled by statute; in the absence of
statute, by precedents or custom; and in the absence of both, or
if the precedents conflict, by their own reason. No reported case
up to this time so fully discusses this proposition as Calvin's Case; no
more novel case could be devised. "The case is rare and new," said

CHARACTERISTICS OF THE COMMON LAW 279

Lord Ellesmere. It was admitted on all hands that it was a case of
first impression. Lord Coke spoke of it as being " Such a one as the
eye of the law, our books and book cases, never saw; as the ears of
our law (our reporters) never heard of; nor the mouth of the law,
for fadex est lex loquens, the judges, our forefathers of the law never
tasted; I say such a one as the stomach of the law, our exquisite
and perfect records of pleadings, entries, and judgments, never
digested." (7 Rep. 4a.)

It will be instructive to examine Calvin's Case with reference to
two points, one, its treatment of the law of nature, the other the
source to which lawyers in the time of Coke could look for a standard
of justice in the absence of precedent.

In committee in the House of Commons Sir Edwin Sandes showed
that this case was proper to be consorted with the law of nations
which is called " jus gentium "; for there being no precedent for it in
the law " lex deficit" and " deficiente consuetudine recurratur ad ra-
tionem naturalem" and " deficiente lege recurritur ad consuetudinem,"
which ratio naturalis is the law of nations, called jus gentium. (Moore,
790; S. C. 2 How. St. Tr. 563.)

By "ratio naturalis" Sir Edwin meant natural law, using the term
to signify " common sense" as explained by Mr. Brice. (Essays in
Juris, p. 587.) , In the argument in Exchequer Chamber, Bacon,
Solicitor-General, said that the common law was founded on and!
favored by the law of nature; that all civil laws are to be taken
strictly where they abridge the law of nature; and that as by the
law of nature all men are naturalized one toward the other, the
presumption was that Calvin by the law of nature was not an alien
in England. Bacon uses the term law of nature in the sense of
natural or physical law and not in the sense used by Sandes.

The Lord Chancellor evidently had heard the argument of Sandes,
for he says, "It is truly saide by a learned gentleman of the lower
house, 'deficiente lege recurrendum est consuetudinem deficiente con-
suetudine recurrendum ad rationem. "' (2 How. St. Tr. 672.) But
Lord Ellesmere 's conclusion is that the reason to which one finally
must resort is not "the collective reason of civilized mankind," but
that found only in those having four special qualities; namely, age,
learning, experience, and authority to speak. (2 How. St. Tr. 686.)
Lord Ellesmere has departed now from the theory of the law of
nature of Sandes to that theory which treats natural reason as reason
of the expert. Lord Coke disapproved of the proposition of Sandes
which he put in the form that, for want of written law and of pre-
cedent, we are driven to reason, commenting upon it as follows: "If
the said imaginative rule be rightly and legally understood, it may
stand for Truth; for if you intend ratio for the legal and profound
reason of such as by diligent study and long experience and observa-

280 HISTORY OF LAW

tion are so learned in the law of this Realm, as out of the reason of
the same, they can rule the case in question, in that sense, the rule
is true; but if it be intended of the reason of the wisest man that
professeth not the law of England (then I say) the rule is absurd and
dangerous." (7 Rep. 19a.) Not even the King, the source of justice,
could decide by his reason, as Lord Coke had told James the year
before, for " His Majesty was not learned in the Laws of his Realm
of England, and causes which concern the life, or inheritance, or goods,
or fortune of his subject are not to be decided by natural reason,
but by the artificial reason and judgment of law, which act is an act
which requires long study and experience, before that a man can
attain to the cognizance of it." (12 Rep. 65.) And even the learned
in the law, in Lord Coke's opinion, could not decide difficult cases
without argument in open court, " where Almighty God openeth and
enlargeth the understanding of the desirous of justice and right."
(Rep. Pref. p. 37.)

These extracts show the ambiguity in the use of the term law of
nature and that even the judges were uncertain whether they could
find assistance in the law of nature or reason and what the meaning
of reason was. Coke's theory is that in the absence of precedent, the
standard of justice, as in art, when it has become developed, becomes
that of the expert. This tends to fix an arbitrary standard and to
prevent progress or flexibility. As Professor Gray truly says, " Thus
to limit jurisprudence is to take from it its chief glory. The supposed
immutability of its principles was what once gave it its dignity and
charm; to-day it owes them rather to its possibilities and prospect
of boundless development." ("Gen. Definitions in Jurisprudence,"
6 Harv. Law Rev. 21, 28.)

There is another principle in Calvin's Case, namely, that the use
of precedent had become established in Coke's day, although the
number of precedents cited in that case should be taken as excep-
tional rather than as illustrating the normal practice. Judges in the
time of Coke were accustomed to cite authorities by way of " orna-
menting discourse" as well as by way of authority, and in Calvin's
Case they seem to compete in displaying general as well as pro-
fessional erudition. In Moore's report of the proceedings in Parlia-
ment, he cites Statutes, Year-Books, Fleta, Littleton, and Dyer. In
Bacon's argument, besides these, he refers to Coke's Reports, Plow-
den, Bracton, Fitzherbert, Stamford, Psalms, Genesis, Aristotle, and
Xenophon. Lord Ellesmere, besides referring to the foregoing, cites
the Register, Glanvil, Britton, Lambard, Blackwood, Hingham, the
Civil Law, Ulpian, Tertullian, St. Augustine, Thomas Aquinas, St.
Bernard, St. Gregory, Ezekiel, Esaias, St. John, St. Paul, Proverbs,
Lucretius, Horace, Livy, and Cicero. Coke refers to authorities more
than two hundred and fifty times, and besides most of the foregoing

CHARACTERISTICS OF THE COMMON LAW 281

vouches the laws of Edward I and of William II, Rolls of Court
and of Parliament, Book of Entries, Skeene, Bacon, Law of Nature,
Broke's Abridgment, Doctor and Student, Virgil, Tully, Romans,
and the Acts of the Apostles. An interesting picture is suggested
where in his report he says, " and Coke, Chief Justice of the Court
of Common Pleas, cited a ruled case but of Hingham's report,
tempore E. 1, which in his argument he showed in court written in
parchment in the ancient hand of that time" (7 Rep. 9b), "which
afterwards the Lord Chancellor and the Chief Justice of the King's
Bench, having copies of the said ancient report, affirmed in their
arguments." (7 Rep. lOa.) Authenticity of report counted as part
of its authority. And again where he says " and so it was in Perkin
Warbeck's Case — and this appeareth in the book of Griffith, At-
torney General, by an extract out of the book of Hobart, Attorney
General to King Henry 7." (7 Rep. 6b.)

A sixth characteristic of the common law is seen in its judgments
when contrasted with legislation proper.

The judgment in Calvin's Case in the Exchequer Chamber was
that the plea of alienage was not sufficient in law to bar the plaintiff,
and that defendant further answer. This judgment by indirection
had all the effect of an act of Parliament, naturalizing all the post-
nati of Scotland. If any other post-natus had brought a similar
action, the Court of King's Bench would have followed Calvin's
Case, and so on indefinitely. The same result followed as would have
been accomplished if Parliament had enacted the proposed bill
naturalizing the post-nati.

It remains to- contrast judgments in common law with legislation
proper in the time of Lord Coke. Legislation then was not strictly con-
fined to the King and Parliament. Other competitors were the King
in Council, Resolutions of either House of Parliament, Electors
of Parliament by vote, and the law courts themselves. (See Dicey,
Constitution, pp. 48-58.) This in part explains the absence from the
Statutes of the Realm of much of that general legislation which
afterwards made acts of Parliament so voluminous. But speaking
of Parliament by way of contrast with the courts, the former was
composed of representatives interested in the subject-matter of
legislation. The courts were operated by officers who were disin-
terested and impartial. Representatives in Parliament were chosen
from the country at large. The " properties a Parliament man should
have," as given by Coke, show the difference in theory between legis-
lative function in his day and in modern times. He should be, Lord
Coke says, without malice, rancor, heat, or envy; he should be con-
stant, inflexible, and not to be bowed or turned from the right either
for fear, reward, or favor, nor in judgment respect any person; and,
third, of a ripe memory, that they remembering perils passed,

282 HISTORY OF LAW

might prevent dangers to come, as in the roll of Parliament appear-
eth. (4 Inst. 3.) The legislator then was a man of courage rather
than general training. But the judges were selected from a body
of professional men and were experts. No person or body had the
right to override or set aside an Act of Parliament (Dicey, Law
of the Constitution, p. 38) , unless within the limitation suggested by
Lord Coke (Dr. Bonham's Case, 8 Rep. 107a, 118a, — 1609), which
does not seem to have been acted upon. However, there is apparent
the same distrust by judges of popular legislation and reformation
of the common law that is seen throughout the reports down to
modern times. As Coke frequently said, it is a rule of policy and law
that change of the law is to be avoided. (4 Rep. Pref. p. 9.) If
Calvin's Case represented the theory of the time, the legislative
function of the court practically was quite equivalent to that of Par-
liament. Commons had refused to enact a general law, but the
judgment in the King's Bench, with the approbation of the King,
seemingly accomplished the same result.

Turning now to the colonists, we find certain reasons why the
common law should have continued its course unimpaired, and others
that tended to modify it. Whatever may have been the theory in
1600 as to the law the colonists took with them to New England,
probably the provisions in the Charter of Virginia of 1606 were in-
serted as a result of a discussion as to the naturalization of foreign-
born subjects, by Lord Coke, who was then Attorney-General, and it
is thought drafted the charter. The provision therein whereby James
conferred "all liberties, franchises, and immunities within any of
our other dominions" upon the colonists, at a later time was claimed
to confer the rights of common law on the colonists and their children.
The popular antipathy to the common law in most of the colonists in
their early history cannot have been a sudden matter, but probably
expressed the popular sentiment expressed in debates in Commons
and in the statutes in the reigns of Elizabeth and James. For years
in the colonies, there was almost uniform prejudice against lawyers.
There was a tendency to revert to popular forms in administering
justice. The standard was "God's Law," or the " Law of Nature."
The jury system for a time was rejected in Connecticut and adopted
in a modified form in other colonies. The literature of the civil law
was well represented in colonial libraries. As Dr. Reinsch says in his
thesis on the English Common Law in the Colonies (Bulletin Univ.
of Wis. no. 31, Mad. Wis. 1899): "The process which we may call
the reception of the English Common Law by the colonies was not
so simple as the legal theory would lead us to assume. While their
general legal conceptions were conditioned by and their terminology
derived from the common law, the early colonists were far from
applying it as a technical system; they often ignored it, or denied its

CHARACTERISTICS OF THE COMMON LAW 283

subsidiary force; and they consciously departed from many of its
most essential principles. This was but natural; the common law
was a technical system adapted to a settled community; it took
the colonies some time to reach the stage of social organization
which the common law expressed ; then gradually more and more of
its technical rules were received." (p. 58.)

After being dormant for nearly one hundred and fifty years, the
vital power of common law displayed itself from 1750 onward. At
first mainly on its public side, as a basis for argument in the appeals
for civil liberty; later, in its general aspect, in the local courts under
the influence of lawyers trained in the Inns of Court. It would be
hard to overestimate the influence in the colonies of lawyers trained
in these Inns. Winthrop, Bellingham, Dudley, and Ward all had
studied law in the Inns, and the recent catalogue of notable Middle
Templars shows upon its list the following who signed the Declara-
tion of Independence: Charles Carroll of Carrollton, Middleton,
Rutledge, McKeen, and John Dickenson and Arthur Lee. The
continual discussion and publications of such men as these, not
only trained them, but prepared the public for the federal laws and
constitution and the state constitutions.

At the end of three hundred years, the resemblances between the
common law in America and its parent in England are greater
than the differences, and the differences are rather in degree than in
kind. Each has borrowed from the other's statute law; the American
more from the English unwritten law. The common law in America
has the same adaptability and generality, but publicity is greater
here both in civil and in criminal cases. In the former there is an
excess of publicity, both in the progress of trials and through the
newspapers. In jury trials the American courts are more dilatory
and more spectacular than the English courts. In some of the West-
ern states a criminal trial gives attorneys an opportunity to adver-
tise that is "worked for all that it is worth." There is much less
freedom of comment on evidence and law by the judges in America
than in England, and the relation between the judges and the jury
is less close. In two respects there has been a departure from the
English theory. These are the theory of constitutional law, espe-
cially as to the power of the court to pass on the constitutionality
of statutes, and in the source of grounds for decision by the judges.
In the latter case in some of the states there seems to have been
developed a substantially different theory from that shown in the
discussion of Calvin's Case.

As I have tried to show, the factors that have contributed to
make the characteristics of the common law were popular and
professional; the same factors are seen in America. At the close of
the Revolution there arose need of a system of law in each of the

284 . HISTORY OF LAW

states. There was uniform agreement that the shortest cut to pro-
viding one was to adopt the common law of England. This was
done in all the states, with the limitations that it was not to apply
when inconsistent with local limitations or conditions. This excep-
tion gave the judges a discretion in applying common law that has
tended to establish a practice of departing from a rigid rule or pre-
cedent, and instead to apply a standard suggested by the needs
of the people or local conditions. A second influence came from the
different social position of lawyers in America. In England the bar
was allied with the Crown. In America the sovereign power after
the Revolution resided in the people. This made the English lawyers
more conservative. In America, while they were an aristocracy,
they were in touch with the people and responsive to popular ideas.
A third factor is that the judges in many states are elected by the
people and inevitably are affected by the interests of their electors
more than by an abstract system of law. A fourth influence is the
general indifference of Americans as to authority from the past. And
a fifth is the American characteristic to ask for results that are
practical and tangible rather than those that support a theory.

There is a considerable but not yet classified body of decisions
that illustrates this tendency of the courts to adapt the law to popular
need and local conditions. One case only will be chosen to illustrate
this. It is the case of Katz v. Walkinshaw (141 Calif. 116). Before
speaking of this case, it is necessary to refer to the case of Lux v.
Haggen (69 Calif. 255). The question in the latter case was whether
an upper appropriator of water, which he applied to general and
public use, had a better right to the water of the stream than a lower
and earlier riparian proprietor. It was contended that the public
welfare demanded that the later right should prevail over the earlier.
There was a California statute adopting the common law. The local
arid conditions, the necessity for irrigation, were urged as reasons
for modifying the rule of the common law restricting the taking of
water from a stream to a reasonable use measured by the needs of
other riparian proprietors. But to this proposition Judge McKinstry
replied, "While the argument ab inconvenienti should have its
proper weight in ascertaining what the law is, there is no 'public
policy' which can empower the courts to disregard law; or because
of an asserted benefit to many persons (in itself doubtful) to over-
throw settled law. This court has no power to legislate, especially
not to legislate in such manner as to deprive citizens of their vested
rights." (69 Calif. 299.) "We know of no decision which intimates
that a difference in climatic or geographical conditions may operate
to transfer a right of property from those in whom a right of property
is vested by the common law." (69 Calif. 306.) The later case of
Katz v. Walkinshaw raised a question as to rights in percolating

CHARACTERISTICS OF THE COMMON LAW 285

water and seems to have been decided upon a different principle,
and one which illustrates the proposition I have stated. The ques-
tion was whether an owner of land could pump percolating water
from his land and sell it for a general use on remote land, if thereby
he deprived the adjoining landowner of percolating water in his
land needed for use on his land. By the common law, each party had
an equal right to percolating water without restrictions from the
corresponding right of the other. But the court held that local
conditions required a departure from the common law, and on the
principle of utility — of a fair use of the water, so as to secure the
greatest benefit to the greatest number — decided that the defendant
could not sell the water, if thereby he exercised an unreasonable use
measured by the needs of the adjoining plaintiff. It would seem
that the rule of property that probably existed in California as to
percolating water was departed from in this case, and in its place
one laid down based upon public utility.

In this case, the court adopts the view that the law is a practical
science to be applied so as to conserve the interests of the people
to whom existence is the main problem of life, and not that it is
a philosophical theory to be applied according to the wishes of the
expert and to conserve an ideal and immutable professional standard.

This theory of utility was advanced by the late Austin Abbott in
a paper read before the section of legal education of the American
Bar Association in 1893, in which he spoke as follows: "Existing
American jurisprudence looks to the actual situation of affairs. All
the phases of jurisprudence treated in books are tributary to the
wisdom and caution necessary in working out the development —
now slowly going on, whether we recognize it or not — [of] the juris-
prudence of utility, a jurisprudence which recognizes the unspeakable
value of all the traditions of the past, and respecting the limit of
statutory command, seeks also for the premises to be found in the
welfare of the community, and reasons from them, too, in ascertain-
ing what premises are suitable to be received as governing the ad-
ministration of law among our people. It would be easy to show that
this change in the conception of law is necessitated by our condition,
and that its future advance is inevitable." (Vol. 16, Rep. Am. Bar
Ass'n, p. 374.)

It remains to contrast the legislative and judicial functions in
America at the present time.1

The legislative functions are discharged by representatives. They
make general laws for future public needs. To insure this, the repre-
sentation is broad; all classes are concerned and should have a voice.
There is no test of fitness excepting age and citizenship; and broad

1 On the distinction between the legislative and judicial functions, see the
admirable paper by Reuben C. Benton, 8 Am. Bar Ass'n Rep. 261 (1885).

286 HISTORY OF LAW

representation is not inconsistent with a low grade of intelligence.
The representatives are directly interested in the subject-matter of
legislation. They legislate for themselves and their constituents. In
a sense it is optional whether the laws they enact shall be obeyed
or go into desuetude. The judicial functions are discharged by
representatives. They prescribe a rule governing a past concrete
transaction between definite individuals. There is a fitness required
for the discharge of this function determined by education and public
test at the bar. The representation is narrow with a high grade of
intelligence. The judges are disinterested — they are umpires with
a power behind them to enforce their judgment. The fundamental
difference between legislative and judicial functions is that the former
is an effort to answer an indefinite number of hypothetical questions
to arise in the future — the latter, a definite answer to an existing
question raised in the past.

But the tendency of modern American courts is so to formulate
their judgments as to provide an answer to hypothetical questions
between future litigants. In this sense there is a tendency on the
part of the court not merely to legislate specially but broadly.

There is a theory that legislation is a conscious expression of the
jural needs of the people. Statutory laws are said to be " analogous
to the voluntary resolutions of a person for self-improvement." *

Another says, "A people's thought, habit, will, and purpose infuse
themselves into and make the law." 2

This view is consistent with compact and homogeneous commun-
ities where the connection between the public and the law-maker or
judge is close, but it is submitted that in America, excepting on great
public questions on which public opinion is strong, legislation does
not reflect public opinion and frequently is special legislation in
disguise. This is an unfortunate result of the indifference of the
public, of our system of legislation, and of " the truth often illustrated
that a small body of men deeply interested and able easily to cooper-
ate is more powerful than a vast body of men less deeply interested
and unfavorably circumstanced for cooperation." 3

It is submitted that the same truth holds good where a body of
professional experts dealing with a special kind of learning inter-
venes between the public and the expression of public needs in the
courts, and that thereby the public voice is not effective in declaring
its jural needs. It is believed that the characteristics of law are
affected by the source of the law. This source is either popular or
professional. The former contributes simplicity, adaptability, and
progress — the latter technicality, rigidity, and conservatism. In

1 Address of Mr. Carter, President of the Am. Bar Ass'n, 1885, p. 224.

2 Address of Mr. Tucker, President of the Am. Bar Ass'n, 1893, p. 206.
» Autobiography of Herbert Spencer, vol. I, p. 433.

CHARACTERISTICS OF THE COMMON LAW 287

America law has become a practical science, and the problem of
adjusting the ideals of the expert to the comprehension and needs
of the common person is being worked out with the aid of the dis-
position of the American to favor common sense rather than abstract
theory.

It remains to inquire whether there has been developed in America
an entirely different system of law, to ask whether there is a system
of federal common law. It is not within the scope of this paper to
try to answer this question, even if there were data enough on
which to base an answer. If the courts should deem it necessary to
affirm that such a body of law exists, — and on the old theories there
seems no difficulty in imagining this, — the gradual disclosure of it
through successive decisions will be one of the most interesting
phases of the growth of law.

SECTION A — HISTORY OF ROMAN LAW

SECTION A— HISTORY OF ROMAN LAW

(Hall 11, September 21,3 p. m.)

SPEAKERS: MR. WILLIAM HEPBURN BUCKLER, Baltimore, Md.
PROFESSOR MUNROE SMITH, Columbia University.

THE RELATIONS OF ROMAN LAW TO THE OTHER HIS-
TORICAL SCIENCES

BY WILLIAM HEPBURN BUCKLER

[William Hepburn Buckler, member of the Bar, Baltimore, Maryland, b. Paris,
France, 1867. University of Cambridge, 1887-91; B.A. ibid. 1890; LL.B.
ibid. 1891; University of Maryland, Law Department, 1893-94. Member of
the Baltimore Bar 1894 . Author of History of Contract in Roman Law. Cam-
bridge, 1893.]

OUR language has been compared to a vast museum filled with
historical monuments which are its words: among these there are
few more significant than the word Jurisprudence. To the Romans
this meant a knowledge of their own particular law, while for us it
has come to denote the science of general legal principles. Thus it
confronts us as a record of the past, reminding us that though our
laws as they stand may not be of Rome, yet surely their foundations
are upon her holy hills.

The much abused quotation about Peace and her victories is
eminently applicable to that quiet but steady extension of the legal
influence of Rome which is evidenced by the history, not only of law
but of other forms of human activity. Indeed, I think it can be
shown that none of the historical sciences, whether of Law, or of
Politics, or of Economics, or of Religion, or of Literature, or of
Language, or even of Art, lies wholly out of reach of that mighty
influence. In whichever of these branches of learning a man may
engage, he can fairly say, " luris civilis nihil a me alienum puto."

To develop this proposition here with anything approaching to
completeness would be an impossible task. I can only attempt to
indicate its outlines, and to bring out some points of contact between
Roman law and the other sciences commonly called historical.

I

The first to be considered is the history of Law, since here the
connection is, as might be expected, more intimate than anywhere
else. A discussion of the influence of Roman law upon other legal

292 HISTORY OF ROMAN LAW

systems must deal with two classes of Western states: first, those
in which this law has survived down to our own time as the result
either of inheritance or of what the Germans call "reception";
secondly, those like England or the American Commonwealth in
which pure Roman law has been rejected.

There are indeed vast regions in which other venerable bodies
of law, such as the Chinese and the Muslim, have long held sway,
but these we may here disregard, since their history has kept aloof
from that of Western law. We may sometimes have felt with Gibbon
"the hasty wish of exchanging our elaborate jurisprudence for the
simple and summary decree of a Turkish cadhi," but further than
this we have never gone. And the Eastern nations, with the single
recent exception of Japan, have on their part done nothing to put
themselves in touch with our Western legal systems. The only
direct effect they ever had upon these was to destroy the Eastern
Empire, and with it the Roman law which had flourished at Con-
stantinople for more than a thousand years. We may therefore
confine our inquiry to the two groups of Western states already
mentioned.

Sweeping generalizations are in history even more odious than
comparisons, but I think there is one that can safely be made as to
the group of states which, like France and Germany, have either
inherited or " received " the Roman law. It is that in those states,
wherever that law was not an actual relic of Roman rule, its suprem-
acy has finally been recognized, not through conquest or compulsion,
but owing to the attraction of its intrinsic excellence. The reception
of Roman law in Germany in 1495 has been regarded as a case of
official compulsion. Recent research, however, has shown that the
vocabularius iuris utriusque, the collectio terminum legalium, and
other popular encyclopedias of Roman law had a great manuscript
circulation in Germany for more than a century before the reception,
and that one of them went through fifty-two printed editions in the
fifty years between 1473 and 1523.1 Hence it appears that when
Berthold of Mainz proposed the establishment of the Reichskam-
rnergcricht, with its civilian doctors as judges, his action was only
the outcome of a movement which had long been in silent preparation.

The peaceful reconquest of the European continent by Roman
law began with that revival of its study in the Italian universities
at the end of the eleventh century, which was one of the greatest
eruptions of intellectual energy that the world has ever seen. It
may perhaps best be compared to that enthusiasm for the natural
sciences which began at the end of the eighteenth century, which
Taine has described as one of the factors in the French Revolution,
and in the midst of which we still live. As biology and physics now
1 Seckel, Gesch. beider Rechte im Mittelalter, p. 59.

ROMAN LAW — HISTORICAL SCIENCES 293

flourish because they are popular, not because they are compulsory,
so did the study of Roman law in the Middle Ages. And just as there
are now some who deplore that scientific men should derive wealth
from their science, instead of being content to pursue it from pure
love, so the twelfth century complained that many cultivated the
law, not for its beauty, but for its profits. There was, however, much
genuine intellectual fervor which spread from Italy even to Paris
and Oxford. That is a pretty story and one very characteristic of
the period which Professor Holland has preserved, of the two Frisian
brothers, Emo and Addo, taking turns at Oxford to sit up all night
copying the law-book of Vacarius.1 Peter of Blois, a Frenchman
who had studied in Bologna under the great Irnerius and who became
Archdeacon of Bath, informs us that he used to read the Code and
Digest for sheer enjoyment. He has even described to us his own
enthusiasm for legal studies, which was doubtless typical. "That
ancient law, " he says, "with its magnificent furniture of words, had
powerfully enticed me and had intoxicated my mind."2

There was, indeed, some opposition to this legal furore, partly
because it distracted the minds of the clergy from their spiritual
duties, partly because it was thought to add to the law's delay,
and partly because it conflicted with ancient customs of the land.
Thus it has been shown that the famous prohibition of the teaching
of civil law at the University of Paris, by Pope Honorius III in
1219, was issued at the request of the French king, who did not wish
his dominions, which like England had their indigenous common
law, to be invaded by a new and foreign legal system.3 The Con-
stitutions of Clarendon in 1164 had represented a similar English
protest couched in a different form.

But despite occasional checks the Roman law has, except in the
case of Hungary, swept steadily and victoriously over the whole
continent of Europe. This result has been largely due to the influence
in early times of the clergy, the backbone of the educated class, who
had in their canon law a borrowed and dilute civil law, and who
also studied the pure civil law with much diligence. In 1245 the
great lawyer Fieschi, better known as Pope Innocent IV, made
provision for the teaching of Roman law at the Papal capital, and
his name deserves to be particularly honored by students of juris-
prudence, since he is said on high authority to have been the first
jurist who distinctly conceived the universitas, our corporation, as
a fictitious person.4

The history of the spread of Roman law throughout the Eu-
ropean continent and in other parts of the world need not and

1 English Hist. Review, vol. vi, p. 247.

2 Petrus Blosensis, Epist. 26, in Migne's Patrologia, vol. 207.

3 Beaune, Fragments de Droit et d'Histoire, p. 97.

4 Maitland's preface to Gierke's Political Theories of the Middle Ages, p. xix.

294 HISTORY OF ROMAN LAW

cannot be told here in detail: to do so would require a volume for
each country. We all know the result to be that at the present date,
notwithstanding the rapid growth of our own commonwealth,
more people are living under the legal system derived from Rome
than under that derived from Westminster Hall.1 Germany parted
company with the Roman group in 1900, but her new imperial
code shows the influence of Roman conceptions, and just as the
New York codes have not altogether banished Blackstone from
New York, so it can scarcely be expected that a nation trained in
the Pandekten will soon forget their principles. An eminent French
scholar has shown that to understand fully the French dotal system
we must go back to the SC. Velleianum.2 And it is well known
that the Code Napoleon, which in its turn has had a contagious
influence somewhat similar to that of Justinian, is fundamentally
Roman. It is interesting to note in passing that this Exposition
commemorates among other things the important fact that, by the
cession of the Louisiana territory, a vast area was withdrawn from
the sway of that modern Roman code, though in the state of Louisiana
where the Code Napoleon had taken firm root, it still continues to
flourish.

There can thus be no doubt that the history of Roman is vitally
connected with that of Continental law. Indeed, if we adopt the
view of historic continuity which Freeman inculcated, we may say
that the history of law on the Continent is simply the history of
Roman law brought down to the present date. It need hardly be
said that I have not taken into account that form of speculation on
abstract legal principles best known by its German name Naturrecht,
which cannot be said to have any historical connection with the
ius naturale of the Digest, and which is quite un-Roman both in its
matter and in its methods.3

When we turn to consider how Roman law is related to that
other great legal system which was built up in England, and trans-
planted to this country and to her other colonies, we find the sailing
by no means plain. In theory, of course, Roman law is an absolute
alien to us, and our own law has an unblemished Teutonic pedigree.
But we may at once suspect some flaw in this theory when we find
it stated that in England at the beginning of the last century, in
the Spiritual Courts, the Military and Admiralty Courts, and the
courts of both universities, "the civil law and its form of legal
proceedings greatly prevail."4 Since these may be looked upon as
so many reservoirs of Roman law, the question is, did they ever leak?
Did the civil law, and if so, how far, ever percolate through the pen

1 Bryce, Studies in History and Jurisprudence, p. 74.

2 Gide, Etude sur la Condition de la Femme, p. 429.

3 See Lorimer's Institutes of Law, 1880.

4 Butler, Horae Juridicae Subsecivae, p. 77.

ROMAN LAW — HISTORICAL SCIENCES 295

of text-writers or the mouth of judges into the bed-rock of common
law or equity doctrine?

Sir H. Maine thought this had taken place on a very large scale at
an early stage in English law through Bracton's borrowing from
the Italian civilian Azo, and he accused the English judge of having
made up a third of his treatise out of Roman law and having palmed
it all off as English. But this charge will scarcely hold, since Pro-
fessor Maitland has shown that Azo has supplied only one fifteenth
and the Corpus luris only one fortieth of Bracton's material.1 The
fact is that unmistakable instances of the importation of a Roman
rule into an English text or an English decision are very hard to find.
Sir Frederick Pollock has found only one, and Professor Maitland
has mentioned another; 2 and where such explorers have been over
the ground, the treasure still unfound must indeed be insigni-
ficant. But there may be smuggling as well as regular importation
of legal ideas. And this sort of smuggling may, as in the case of
literary plagiarism, be partly unconscious and therefore all the
harder to trace. A good instance of the difficulty of ascertaining
whence any given rule in English law was derived is the conflict
of high authorities respecting the origin of the exceptional liability of
common carriers. On this point Sir William Brett and Mr. Justice
Story are opposed to Lord Cockburn and Mr. Justice Holmes; the
two former holding that the rule of liability was adopted from the
Roman law, while the two latter think that it was not.3

The relation between Roman and English law is probably closer
than we think or than we shall ever be able to prove, because
it was, so to speak, illicit. This is explained in the De Laudibus
Legum Angliae of Chancellor Fortescue. When the Prince asks why
his ancestors had failed to introduce the civil law into England,
Fortescue replies that the English regarded it as an instrument of
tyranny. The same feeling was displayed more than a century after
Fortescue in the violent attack made by Parliament on Co well's
Interpreter, a book which undertook to point out the resemblance
between Roman and English law. Clearly, therefore, if an English-
man borrowed from the civil law, he was not likely to admit the debt.
"For obvious reasons," as Mr. Bryce has said, "the Chancellors and
Masters of the Rolls did not talk about Nature, — they referred
rather to the law of God and to Reason. But the ideas were Roman,
drawn either from the Canon Law, or directly from the Digest and
the Institutes." 4 If we wish an indirect proof of this statement —

1 Maitland, Bracton and Azo (Selden Soc.) introd.

2 Pollock, Nature of Jurisprudence, p. 326. Maitland, note to Canon Law in
tlie. Church of England.

3 Sir W. Brett in Nugent v. Smith, L. R. 1 C. P. D., pp. 28-30; Lord Cockburn
in same volume, pp. 428-30; O. W. Holmes, Jr., Common Law, p. 181.

4 Bryce, Studies in History and Jurisprudence, p. 599.

296 HISTORY OF ROMAN LAW

for direct proof is not yet forthcoming, — we have only to read a few
pages of Story's Equity Jurisprudence, or of his treatises on Partner-
ship or on Bailments, in all of which he quotes from the Institutes
and Digest, often in the text, still oftener in the notes. We can
scarcely avoid the conviction that the parallels which he constantly
draws between Roman and English rules are more than accidental.
This problem has not yet been fully worked out, and probably
cannot be, till the early records of the English Ecclesiastical Courts
are published and studied. But the results hitherto attained show
that the borrowing of Roman principles was carried out in England,
not by wholesale, but in small and haphazard installments. In early
English law it is admitted that possessio influenced the conception
of seizin, and laesa maiestas that of treason.1 At a later day the
Court of Chancery was similarly influenced in dealing with mortgages
and with uses and trusts, while in the construction of documents
and wills it naturally followed the Ecclesiastical Courts, and borrowed
its rules from the fiftieth book of the Digest.2 Blackstone rightly
ascribed to Roman sources the practice of hotchpot and the rules
for the distribution of personalty.

It is interesting to note how this affected the great lawyers of the
seventeenth century. Sir Edward Coke was as far as possible from
being an enthusiastic civilian, yet even in his work may be found
traces of Roman influence, though possibly he was not aware of it.
For instance, he gives the rule, " Nullus commodum capere potest de
iniuria sua propria," which is merely a slightly altered form of the
Digest's "Nemo ex suo delicto meliorem suarri condicionem facere
potest."3 In another place he quotes from Bracton the rule on
testamentary ambiguity, " Benigne interpretari et secundum id quod
credibile est cogitatum." Here, though his language is different, his
use of Marcellus's phrase " benigna interpretatio " seems to confirm
the Roman origin of the rule.4 The same may be said of the
somewhat longer statement given by Coke of the rule "ratihabitio
mandate comparatur." 5 Turning to Coke's great adversary, we
find in his work also distinct traces of the civil law, though it has
been said that Bacon had only a "bowing acquaintance" with it.
In his lectures on uses, for instance, he draws a comparison between
the use and the fidei commissio, and in his short essays on legal
maxims he supports at least two rules by citations from Roman
sources.6 To one rule which he has stated he adds: "These be
the very words of the civil law." More extracts of this same kind
could be collected from other English law-writers of the seventeenth
century; and after making due allowance for the hostile attitude

1 Pollock & Maitland, History of English Law, vol. n, pp. 46 and 503.

2 Scrutton, Roman Law and the Law of England, p. 157.

3 Coke, Inst. 148b. 4 Coke 7ns/. 36a. Dig. 34, 5, 24.

6 Coke, Inst. 207a; Dig. 46, 3, 12, 4. ' Bacon, Maxims, Reg. 3 and 11.

ROMAN LAW — HISTORICAL SCIENCES 297

of the Inns of Court, I think such extracts are just what we might
expect to find. For there can be little doubt that the classic sources
of Roman law were in that century more or less familiar, not only to
those who had prepared for practice in the Court of Arches and
Doctors' Commons, but to all well-educated men. Professor Maitland
has shown in his delightful Rede Lecture that England under
Henry VIII was in some danger of having a " reception " of her own; l
a permanent result of which was that at her universities, where
no English law was taught until 1758 at Oxford and 1800 at Cam-
bridge, there have been Regius Professors of Civil Law since Henry
VIII 's time. Some of them, like Alberico Gentile, Sir Thomas Smith,
and John Cowell of Interpreter fame, were of far more than mere
academic reputation. It must be remembered, too, that the books
of Justinian, though to us they seem foreign, are in a language
which to the English of the seventeenth century was still the literary
vernacular of all the learned professions. The Roman law had then
begun to supply what Sir H. Maine has called the lingua franca of
universal jurisprudence. That it should not have had some influence
even on English judges and legal writers is almost inconceivable.

We may here consider the origin of that best known modern
product of Roman law which is usually associated with the name
of Hugo Grotius. International law, at least in its classic literary
beginnings, is admitted to be of Roman mould, and a very slight
acquaintance with Grotius's famous book will suffice to convince any
one of that fact. Two points are of special interest in this connection;
first, that the work of the Italian civilian Alberico Gentile, Regius
Professor of Civil Law at Oxford, has lately been shown to be the
model on which Grotius improved; 2 and secondly, that the great
John Seldcn answered Grotius's earlier book Mare Liberum in
learned reply which shows what excellent knowledge of Roman law
an English lawyer could possess. Selden prided himself on being
a common lawyer, arid certainly had no mean grasp of the common
law and its history, as any one will discover who looks at his notes
on Fortescue and his book on Fleta. Yet he answered Grotius in
a style on which few civilians could have improved. His very de-
scription of his opponent as " rerurn humanarum atque divinarum
sdentissimum " 3 is an echo of the well-known Roman definition.
While he cites Bracton and Fleta, and resorts to English archaeology
by introducing the ship on the rose-noble of Edward III as a proof of
English supremacy over the sea, yet most of his authorities are from
the Code and Digest, and his learning extends even to the Theodosian
Code. He speaks of princes becoming sui iuris by prescription; and

1 Maitland, Canon Law in the Church of England.

2 Walker, History of International Law, p. 335.

3 Selden, Mare Clausum (1636), p. 196.

298 HISTORY OF ROMAN LAW

in his notes on Fortescue he contrasts the " issue " of English with
the litis contestatio of Roman procedure. Selden's case would alone
suffice to show that the civil law was in his time no terra incognita
to learned English lawyers, though it may well* be admitted that
few were so learned as he.

Of early international law as such there is not much to be noted
beyond the fact already mentioned that it was founded and built on
Roman law. If, for instance, we wish to know where Grotius got his
idea of postliminium, we turn to the Digest, and similarly with his
conception of ius gentium and ius naturae. Neither of these was to
him an abstract system founded on pure moral reasoning, — witness
his inclusion of rules on lying and deceit among the rules of the law
of nature, — but he thought with Gains that ius gentium was that
law "which is observed among all mankind equally on principles
of natural reason"; and he based his law of nature not on abstract
ideas but on the necessities of social intercourse.

For our present purpose the most interesting point to notice in
the classical writings on international law is the way in which the
texts of the Roman jurists are there treated as repositories of ius
gentium and of ius naturae. Roman law seems in fact to have been
regarded, even by men like Selden, as a sort of universal common
law, the principles of which should prevail wherever they were not
superseded by some local system. As there is obviously no such sys-
tem applicable to international relations, the supremacy of Roman
law in that sphere was everywhere admitted. Such a view had two
important results. The connection of international law with a com-
pact and well-understood mass of written law has caused it to be
treated, except by strict analysts like Austin, as something very
different from international morality. And on the other hand the
recourse to the Roman jurists for the settlement of international
questions still further increased the tendency to regard Roman law
as embodying principles of universal validity.

While the classical jurists are even now by no means obsolete, as
was shown in the Behring Sea arbitration, yet most of the unsettled
questions of the present day, such as the definition of contraband or
the control of wireless telegraphy, will not be determined by reference
to Roman texts, but by the common assent of nations. The service
rendered by the Roman jurists to early international law lay precisely
in the fact that they were regarded as voicing this common assent,
and that their writings commanded obedience, although nobody
perhaps could clearly have explained why.

We have thus seen that while Roman law has influenced the law
of England, and has virtually originated that of Continental Europe,
its chief triumph has been the creation of a system of world-wide law,
such as would have delighted the heart of the philosophic Ulpian.

ROMAN LAW — HISTORICAL SCIENCES 299

As an outcome of the successful career which has been thus briefly
sketched, Roman law became the parent, not only of the word
jurisprudence, but of the science which that word denotes. For
centuries all over Europe grammar was studied, and in England is
still studied, in the concrete form of Latin grammar. In exactly
the same way, the science of legal principles was studied through
the medium of Roman law. The legists and canonists of the Middle
Ages and the Renaissance knew of no other medium, and even in the
English universities this law was all-powerful. When Austin founded
the modern science of jurisprudence nearly one hundred years ago,
although he worked in a non-Roman atmosphere and belonged to
the school of Bentham and James Mill, who respected the Digest
as little as they did Blackstone or the French doctrine of natural
rights, it is interesting to note how little he succeeded in escaping
from the clutches of the Roman law. Not only did he use the
Corpus very largely as material for his analytical dissecting-knife, but
when he gave the results of his analyses, he merely did on a broader
scale and with greater elaboration just what a Roman jurist used to
do when he constructed a definition of furtum or possessio. The study
of Roman law was just then beginning to enjoy on the Continent,
in common with other branches of historical science, the greatest of
all its revivals. In the powerful hands of Savigny and his followers,
its principles were being dragged out from that "disorderly mass"
which offended James Mill,1 and were making splendid additions
to the material of juristic science. Soon afterwards the historical
movement started by Savigny was extended to remoter regions,
and helped to found the modern study of comparative jurisprudence.
This was signalized in a striking way when in 1831 the College de
France established simultaneously the chair of Archaeology for
Champollion and that of Compared Legislation which was soon
filled by Laboulaye. In England Sir Henry Maine and his school
did as much for the promotion of comparative jurisprudence as they
did for the revival of Roman law. Since then the comparative
method has developed the still more modern science of ethnological
jurisprudence, which places the customs of the negro, the Chinaman,
and the Bushman on a level with the laws of the Roman, regarding
them all, not as coincidences, but as emanations of a common human
nature.2 Though these newer and broader methods of investiga-
tion might seem destined to supersede the study of Roman law to
which they owed their birth, such a thing is never likely to occur,
simply because the backward races present to us only primitive
conceptions in a few subjects such as property, slaver}'-, or marriage,
whereas the Roman law was adapted to a high and complex civiliz-

1 Mill, Jurisprudence (1822), p. 5.

3 A. Post, Grundriss der ethnologischen Jurisprudenz.

300 HISTORY OF ROMAN LAW

ation similar to our own. It must for many years, if not always,
remain true that Jurisprudence cannot repudiate its relationship or
sever its filial connections with Roman Law, except at the cost of
great injury to both.

II

The connection between Law and Politics is so close that some
writers like Montesquieu and Bentham have been equally interested
in both sciences. Therefore Roman law in its influence on legal
development could not fail to be also a factor in politics, both actual
and theoretical. Political conditions may be said to be a resultant
of social forces and of abstract ideals, acting and reacting upon one
another; and thus political theory is always a factor in actual
politics. But the actual and the theoretical should be kept distinct and
be separately treated. After the downfall of the Western Empire, and
with it of the rule of pure Roman law in many parts of Europe, the
history of actual European politics can only be understood by study-
ing various concurrent influences, such as Christianity, Teutonic
custom, incipient feudalism, etc. Among such ingredients the Roman
law must always be counted, but as to how far it may have affected
each individual country no general statement can be made.

In two great constitutions, however, those of the Medieval Empire
and of the Medieval Church, the legal example of Rome was para-
mount. For five hundred years she had established both in principle
and in practice that her princeps should be the supreme potentate
of Europe, so that when Charles and Otto were crowned Emperors
at Rome it was naturally held that the principate was continued
in them. But unfortunately the successors of St. Peter also aspired
to fill that same office, on the ground that the supreme head of the
Church must be the rightful occupant of the imperial throne. Thus
Gregory VII claimed the rights of C$esar as well as those of Pontifex
Maximus, and insisted that Henry IV was subject to his jurisdiction.
Indeed, the tremendous struggle between Pope and Emperor, which
for centuries was the storm-centre of European politics, was simply
a long dispute as to which of these rulers was that mighty princeps
described in the Digest, who was legibus solutus and whose will had
the force of law. The head of the Church got the better of the con-
troversy so far as real power was concerned, for it is well known
that the imperial authority, though immense in theory, was, except
in a few instances, very shadowy in fact. Again in the organization
of the Church Roman law had a great effect, for — as Professor
Harnack has pointed out — we have in the great system which
centres at the Vatican a fair copy, surviving down to the present
day, of the administrative organization of Constantine and Justinian.1
1 Harnack, History of Dogma (trans.), vol. i, p. 122.

ROMAN LAW — HISTORICAL SCIENCES 301

Apart from its lessons to the Church and Empire, the civil law sup-
plied to the rest of Europe that famous maxim quod principi pla-
cuit, etc., which was so unpopular in England. This, in combination
with Church doctrines, did much to fortify, if not to produce, the
system of absolute monarchy which generally prevailed on the
Continent till the French Revolution, and which is even now not
entirely dead.

When we come to consider political theory as expressed in litera-
ture prior to the Reformation, it is certain that all writers on the
subject owed much to Roman law. Aristotle, the Bible, the Fathers,
and the texts of Roman jurists are the armories from which most
of their controversial weapons are drawn. The work done by the
medieval legists and canonists in developing political theory has
not been sufficiently studied.1 But they were still for the most
part too thoroughly possessed with the idea of a single world-empire to
be capable of speculating independently as to the origin and nature
of sovereignty or of the state. The best known political writings
of that period were merely briefs for or against the Pope or his rival.
Thus St. Thomas Aquinas argued that, since government was devised
to promote the highest good of man, and this consisted in the fruition
of God, the head of God's Church on earth should be the supreme
ruler. In his De Monarchia on the other hand, Dante maintained the
view that the Empire of his day was the legitimate successor of the
Roman Empire, and attacked the Pope's pretensions to supremacy.
He made a legal argument to show that the alleged Donation of
Constantine, if genuine, was invalid, and that Leo could not have had
the right to bestow the imperial office on Charles the Great. Dante
was convinced that the world had never been so well governed as
when it obeyed a single ruler.2

During the Renaissance, Bodin and Machiavelli, the founders of
the modern science of politics, were able to inquire, with far less
partisan bias, into the foundations and functions of the state. But
as they worked in the legal atmosphere of the time, which was one
of Roman law, they naturally arrived at theories of absolute mon-
archy, similar to that which we see depicted in the Corpus luris,
though they would both have agreed with Julianus that the ultimate
basis of law lies in the popular will.3 Though Bodin insisted that
Roman law was dead and possessed no general authority, his con-
ception of the family was purely Roman, and he was unable to
conceive of a king as subject to constitutional control.4 Machiavelli
was particularly enamoured of Roman examples in politics. He
admired the Roman Republic far more than the Empire, yet for

1 Maitland, Gierke's Political Theories, &c., p. 101. 2 Convito, iv, 5.

3 Qig. 1, 3, 32, 1.

4 Fournol, Bodin predecesseur de Montesquieu, p. 55.

302 HISTORY OF ROMAN LAW

practical purposes he advocated the absolute power of a prince. His
works had much influence on English political writers in the age of
Elizabeth and strengthened their arguments in favor of absolutism.1
The Digest was still recognized as a repository of valuable citations,
for John Knox made use of it in attacking the " regiment of women,"
and the civilian Gentile resorted to it when writing in support of
James I's royal prerogative. But after the early seventeenth cen-
tury its direct authority in political discussion seems to have de-
clined.

The conception of natural law which figures in the works of political
theorists both before and after the Renaissance, can trace its history
directly back to the texts of Roman law; but, as Mr. Bryce has
shown in one of his Studies,2 the precise scope and force of natural
law were so differently viewed by different writers that it would be
impossible here to summarize their opinions. It is now well known
that the theory of the law of nature, borrowed from the Roman
jurists by St. Isidore of Seville, passed from him into Gratian's
Decretum,3 and that by thus becoming embodied in the canon law
it was familiar to European thought even before the study of the
Roman texts was revived.

The most famous theory of modern politics, that of the Original
or Social Compact, did not become conspicuous till the end of the
sixteenth century and the beginning of the seventeenth, although
in a medieval form it had appeared as far back as the eleventh cen-
tury.4 Its introduction into modern thought is due to the German
Johannes Althusius, the Englishman Richard Hooker, and the
Dutchman Hugo Grotius. Their position, as stated by Hooker in the
Ecclesiastical Polity, was that there are two foundations of public
societies; first, natural inclination; secondly, "the order expressly
or secretly agreed upon touching the manner of their union in living
together." This view of the origin of the state was adopted in various
forms by Hobbes, Locke, and Blackstone, but its most famous ex-
ponent is Rousseau, who carried it to extremes undreamt of by its
first authors. Its significance for our present purpose is that it
clearly seems to have been suggested by those passages from the
Roman jurists which declare law to be communis rei publicae sponsio,
and which describe custom having the force of law as tacita civium
convention For if law could be regarded as the product of an agree-
ment between the citizens of a state, it needed but a short step to
find in a similar agreement the origin of the state itself.

There can thus be no doubt that, at least down to the period of the

1 Dyer, Machiavelli and the Modern State, pp. 58, 77; Einstein, Italian Re-
naissance in England.

2 Bryce, Studies, &c., pp. 593, 597.

8 Ibid. p. 594. Carlyle, History of Medieval Political Theory, p. 106.
4 Carlyle, op. cit. p. 62. 5 Dig. I, 3, 1, and 1, 3, 35.

ROMAN LAW — HISTORICAL SCIENCES 303

French Revolution, the history of politics, whether in theory or in
practice, could not possibly be understood without some knowledge
of the Roman law and its effects.

Ill

That Economics are closely connected with both Politics and
Law is strikingly illustrated by the fact that The Wealth of Nations
was an expansion by Adam Smith of one third of a course of lectures,
the other two thirds of which dealt, first, with Public Jurisprudence,
and secondly, with Domestic Law.1 Mr. Ruskin has expounded the
Political Economy of Art, but the Political Economy of Law is too
obvious to need pointing out. Roman law has, however, a special
value for the student of Economic History, because its records are
practically his only source of information for a most important
period. Professor Ramsay has explained the difficulty of investigat-
ing social and economic facts under the Empire. "Historians," he
says, "are so occupied with the great events, the satirists so busy
with the vices of upper-class society, the moralists with abstract
theorizing, the poets with Greek mythology, and with the mainten-
ance of their footing in the atria of the rich . . . that they have
neither time to write about the aims of imperial policy, nor eyes
to see them." "Here," he adds, "we must trust to our second class
of authorities, the inscriptions and the laws."

No reader of the Digest can fail to have been struck with its wonder-
ful collection of little vignettes — one might almost say snap-shots
— illustrating social conditions under the Empire. We catch vivid
glimpses there of capitalists, tenant-farmers, artisans, slaves, freed-
men, and even children. We see them driving up the Clivus Capitoli-
nus or playing ball, as well as buying or selling or making their wills.
It is a great storehouse of social data, and we may be thankful
that the tough casing of the law has preserved them. Moreover
we now enjoy the light which of late years has been shed on them by
arch*ologists and epigraphists. Facts as to taxation, administration,
imperial and municipal finance, the conduct of shipping and other
industries, may all be found in that mine which Mommsen and
Marquardt have so brilliantly exploited.8 But the value of the col-
lection to the economic historian may perhaps best be illustrated in
two instances, banking and the organization of labor.

The Digest is full of information about bankers and banking. It
has been pointed out that the Roman Empire, especially after the
time of Caracalla, suffered from lack of means for accumulating
capital, owing to the scarcity of bullion and the insufficiency of

1 Carman's edition of A. Smith's Lectures on Justice, Police, &c., 1896.

1 Ramsay, The Church and the Roman Empire, p. 184.

3 See especially Marquardt, Rom. Staatsverwaltung , vol. i, pp. 165-268.

304 HISTORY OF ROMAN LAW

banking facilities.1 While these conditions doubtless existed, and it is
certain that the credit system was crude and primitive compared
with that of the present day, yet we can see in the Digest that the
functions of the Roman argentarii must have considerably relieved
the strain on the metallic currency. This was partly recognized at the
time, for the banking business is expressly stated to be of public
utility; and since the recent excavation of the Basilica Aemilia in
the Forum, where the principal banking-offices were situated, and
the marble pavement of which is still strewn with remains of their
coins, we know that in Rome, at least, the state provided well for
their comfort. It is safe to infer, from the silence of the Digest,
that even its compilers in the sixth century had never heard of
negotiable instruments or of bills payable to bearer; yet the bankers
of the Empire did many things to facilitate commercial transactions.
They received money on deposit in the modern way, the sum de-
posited becoming a debt due to the depositor, and they made pay-
ments for his account on his written order. They could transact
for a client all sorts of sales, collections, investments, and other busi-
ness, make loans on his behalf, and issue drafts on correspondents
in other cities. When Cicero sent his son to Athens, he provided
him with means of drawing money when he got there, though we
cannot suppose that he gave him a bill of exchange. He probably
got from his banker an order on some Athenian bank, or else bought
a debt payable in Athens. Branch banks could be managed by agents
or by slaves, and we know that the banker might have his head
office in one province and carry on business in another.2 The best
evidence, perhaps, of the importance and variety of the banker's
functions appears in the elaborate legal rules dealing with the produc-
tion of his books and the statement of his accounts, and filling many
paragraphs in the Digest and Code.3

It is from these same sources, as well as from the Theodosian Code
and from a great array of inscriptions, that we derive our knowledge
of the Roman workingman's clubs and trade-unions. The inscriptions
have not only supplied many details not found in the books, but they
show to what an extent free labor flourished all over the Empire,
even in competition with slavery. Under the Republic trade asso-
ciations grew strong and had much influence in politics, for Cicero
constantly mentions them, and was advised by his friends to bid
for their vote. Indeed, their power became so great, during the
anarchical times of the later Republic' that they were twice sup-
pressed by the Senate and again by Julius Caesar and Augustus.
These last prohibitions did not, however, apply to associations that

1 Cunningham, Essay on Western Civilization, p. 183.

2 Dig. 2, 13, 4, 5. See Guillard, Les Banquiers a. Rome; Deloume, Les Manieurs
d'argent a Rome.

3 Dig. 2, 13; Cod. 2,1.

ROMAN LAW — HISTORICAL SCIENCES 305"

were old established or legally authorized. While we have not full
particulars as to the senatorial and imperial legislation, it seems
clear that besides Religious Clubs, Burial Societies, and Poor Men's
Benefit Clubs, the law recognized, or at least tolerated, a great many
workingmen's societies closely corresponding to the trade-unions of
the present day.1 Each trade seems to have had its own associa-
tion. There were separate unions of carpenters, masons and stone-
cutters, of fishermen, sailors, boatmen and mule-drivers, of carriage-
builders, carpet-weavers and cutlers, of butchers, poultry-dealers,
cooks, laundry men and tailors; in short, we find no less than one
hundred different trades in which associations appear to have
existed.2 There is no evidence of federation having been attempted
among similar unions in different cities, but the large unions had
local subdivisions. Thus the building carpenters of Rome had about
twelve hundred members divided into sixty decuriae. The unions
were organized on the principle of industrial democracy, and could
enact any by-laws not conflicting with the general law. Their reven-
ues were considerable, as evidenced by the way in which they spent
them and by the fact that their meeting-halls (scholae) were substan-
tial, even sumptuous, buildings. We cannot tell whether they ever
aimed at limitation of apprentices, trade monopoly, or the enforce-
ment of a minimum wage or of the "union shop," but there can be
no doubt that their object was then, as it is now, to strengthen the
position of the workingman and to enable him in various ways to
improve his condition. Thus a lawsuit was carried on by the Roman
laundrymen against the imperial fisc for the possession of a valuable
plot of land, and the laundrymen were victorious after eighteen
years of litigation.3 As to strikes we have few particulars, and
though we know they occurred, we cannot tell what were their
effects. If they tended to disturb the peace, they were no doubt
sternly suppressed by the Roman magistrates, as happened in one
strike of which an account has been preserved.4 But of all the
vicissitudes of the Roman unions the most fully described and the
most interesting is that socialistic system of state control depicted
in the Theodosian Code, under which they passed in the fourth
century. Under this system every artisan was compelled to enlist
in the union of his trade, and each union became virtually a branch
of the state's administrative machinery. For facts such as these the
economic historian is indebted partly to the archceologist, but chiefly
to the civil lawyer.

1 The most complete discussion of this subject is that of Waltzing, Etude hist,
sur les Corporations Professionnelles, Brussels, 1895.

2 See list in Waltzing, vol. n, p. 148.

3 Ibid. vol. I, p. 188.

4 Ibid. vol. i, p. 192.

306 HISTORY OF ROMAN LAW

IV

To any student of the early history of Roman law, its connection
with the history of Religion must be evident. We cannot tell exactly
what form of punishment is referred to in the words sacer esto of the
laws of the Kings and the Twelve Tables, but it must have been of
a religious character, and there can be little doubt that the earliest
sanction of contract was the displeasure of the gods. Sponsio, sacra-
mentum, iusiurandum all had a religious origin, and the last of these
remained to the very end religious in form. Even as late as the time
of Justinian, when there were so many different ways in which con-
tracts could be made, it is astonishing to see how much the oath
was still resorted to as a mode of making a binding promise. Its
original sanction doubtless was that the perjurer became exsecratus,
cut off from the sacred rites of his family, but by Justinian's time
the breach of an oath gave to the promisee an ordinary civil right of
action.1

Again it is well known that, just as the ethical ideals of the Stoic
philosophy affected the development of Roman law in the first, second
and third centuries, so the religious ideals of Christianity exerted
an even greater influence upon it from the fourth century to the
sixth. This meant on the whole an improvement of the law in the
direction of increased humanity and equality, except in the law of
persons. There we find, in the disabilities attached to Jews, pagans,
and heretics, differences based on religion making their appearance
for the first time in Roman law. On the other hand, by bettering the
condition of slaves and of women, by mitigating the patria potestas,
and by the gradual abolition of the rights of agnates which cul-
minated in the famous one hundred and eighteenth Novel of Jus-
tinian, the Christian leaven worked with salutary effect.2

Still more interesting, however, and more far-reaching was the
converse process, the modification wrought by the legal atmosphere
of Rome in the religious rites and doctrines of Christianity. So far
as I know, this subject has never yet received adequate treatment,
which is the more strange because Sir H. Maine long ago drew attention
to it in a famous passage.3 But the field is an immense one, and a few
points only can here be mentioned. As to ritual, it is scarcely neces-
sary to recall the fact that the solemn questions put to the man and
woman in the marriage service and to the sponsors in the baptismal
service, which still survive in the English Book of Common Prayer,
were framed in the contractual form peculiar to Roman law. Richard
Hooker, to whom the use for such a purpose of this Roman form
seemed quite natural and proper, explains to the English reader how

1 Dig. 13, 5, 25, 1.

2 Troplong, Influence du Christianisme sur le Droit Civil. Lea, Studies in
Church History. Osborn, Classical Heritage of the Middle Ages.

3 Ancient Law (llth ed.), p. 357.

ROMAN LAW — HISTORICAL SCIENCES 307

the Roman verbal contract was made, and quaintly adds: "Is it
toyish that the Church exacteth an irrevocable promise of obedience
by way of a solemn stipulation?"1

In the development of Christian doctrine there appears a tendency
similar to that which Matthew Arnold described in Literature and
Dogma. Legal phrases and conceptions- derived from Roman law,
which were at first used metaphorically or by way of illustration,
came by degrees to be used literally as dogmatic definitions. Thus
the relation of God to man, from being viewed as a moral one based
upon love and duty, came to be regarded in a strictly legal light.

It has often been pointed out that St. Paul, as befitted a Roman
citizen, was fond of using metaphors drawn from the law of the
Empire. As has been well said by a distinguished clergyman, "he
construed Christ in mixed terms of Hebrew sacrifice and Roman
law."2 St. Paul uses the ceremony of adoption, the Roman concep-
tion of heirship, the Roman form of guardianship, the sealing of the
praetorian will, in order to illustrate various aspects of God's dealings
with man.3 But he uses them as illustrations, not as clear-cut
definitions. So also, when he speaks of the death of Christ as a ran-
soming or redemption of man from sin, he does so by way of showing
in an eloquent figure of speech how man has been affected by Christ's
influence and example, rather than as defining a legal function
performed by Christ.

When we pass to the works of Augustine, Ambrose, Origen, Atha-
nasius, and other Fathers of the Church, we find the idea of Christ's
work for man beginning to harden into that of the performance by
Him of a legal service.4 This was regarded as one of two legal trans-
actions; either (1) as satisfactio, paying off the debt which man, an
insolvent debtor, was himself unable to pay, and canceling the
chirograph made by man; or (2) as redemptio, buying man back from
the slavery in which Satan held him. But for theological purposes
these two different aspects of the Atonement were treated as one and
the same.

Pelagius and St. Augustine in the fifth century had a famous
controversy over the effects of Christ's sacrifice, and so had Abelard
and St. Bernard seven centuries later. In both cases the orthodox
doctrine prevailed, that men could not become partakers of the
Kingdom of Heaven unless their debts were wiped out through the
satisfaction offered by Christ.5

St. Anselm of Canterbury, who had studied the civil law, and

1 Ecclesiastical Polity, 5th book, sect. 64.

2 McConnell, Christ, 'p. 54.

3 Ball, St. Paul and the Roman Law.

4 See extracts from the Fathers in Bibliotheca Sacra, vol. 36, p. 441.

5 Voss, Hist. Pelagian, lib. 7, 1, thesis 3, and his Responsio ad Judicium Ra-
venspergii, cap. 3.

308 HISTORY OF ROMAN LAW

who lived just at the time of the great legal revival, seems to have
been the first great Christian writer who elaborated the dogma that,
as part of a scheme ordained from all eternity whereby God's justice
should be satisfied and man's sin pardoned, God had become man
in order to satisfy by His death a debt which the human race had
heaped up, but could not pay. This strictly legal view was elaborated
by the Thomists and Scotists in their disputes over satisfactio super-
abundans and satisfactio gratuita, and at the Reformation it was
appropriated by the Reformers, who quite logically insisted upon
it as a strong argument against the Papal system of penance and
indulgences. Luther said that "by none other sacrifice or offering
could God's fierce anger be appeased but by the precious blood of
the Son of God "; and the poet of Puritanism has stated its doctrine
in the gloomy lines:

" Die he or justice must; unless for him
Some other able, and as willing, pay
The rigid satisfaction; death for death."

To what legal extremes this theory of atonement was carried at the
Reformation is nowhere better shown than in the Defence of the
Catholic Faith which Grotius wrote against Socinus.1 Socinus had
argued that where there was satisfaction of a debt there could be no
need for any remission of that debt by God. Grotius answered him
with citations from the Digest. He admitted that Socinus 's contention
would have been true if the legal service performed by Christ had
been acceptilatio, novatio, or delegatio. But inasmuch as that service
was in law quite a different transaction, and since the obligation
incurred by man had not been canceled by Christ, but merely sus-
pended through the working of satisfactio, Grotius argued that there
was still room for the exercise of God's mercy in completely doing
away with man's liability.2

It would be interesting to trace the whole history of this famous
dogma, perhaps the strongest though by no means the only instance
of legal influence on Christian religious thought; but in so short
a sketch details must needs be omitted. The doctrine figured con-
spicuously in the teaching of Wesley, whose constant cry was:
" Plead thou singly the blood of the Covenant, the ransom paid for
thy proud stubborn soul," and through him it has played a great
part in modern Protestantism. While it may be true, in the recent
words of an English clergyman, that "theories of atonement are now
either rejected or in process of being rejected,"3 St. Anselm's legal
doctrine still numbers many adherents.

1 Socinus, De Chris'o Servatore, pars 3, cap. 1-6.

2 Grotius, Def. Fidei Cath. cap. 6.

1 Canon Henson, Value of the Bible, p. 279.

ROMAN LAW — HISTORICAL SCIENCES 309

V

The history of Roman law is clearly connected with that of Lit-
erature, yet it can scarcely be shown that either has had much share
in actually moulding the other. It can of course be maintained that
the high development of Roman law and the fascination which it
exercised on the best Roman intellect during the zenith of the
Empire are mainly accountable for the differences between Greek
and Roman literature, particularly for the poverty of the latter in
philosophical writings. But except for that general effect the relation
between law and literature at Rome is on the whole one of inter-
penetration, rather than of direct action and reaction. We can
interpret each by the help of the other, but we cannot, at least in
secular literature, establish any filiation between them. The tech-
nical phrases used by Horace or Juvenal bring out the legal element
in literature, just as the polished style of Labeo or Gaius illustrates
the literary element in law. But Horace cannot be connected with
the controversies of the Sabinian and Proculian Schools, nor can we
trace Juvenal's remark, Res fisci est, ubicunque natat,1 to the inspir-
ation of any particular jurist. No literature can be fundamentally
understood without understanding the laws of the country that
produced it, and this is particularly true of Rome, because law was
her chief intellectual pursuit. On the other hand, the writings of
the Roman jurisconsults, being couched in a style of extraordinary
elegance and precision, are not only entitled to claim that literary
taste is requisite for their appreciation; they represent in them-
selves a distinct branch of literature, a branch in which they have
probably never been excelled.

The fact that law and literature can be interwoven is proved in
Aristophanes arid the Attic orators, as well as in many more modern
instances, but no better examples can be found than in Latin literature.
Several of Cicero's orations would be hopelessly puzzling if it were
not for our knowledge of Roman law, just as the Fasti of Ovid
would be full of difficulty unless we knew something about Roman
religion. The same may be said of many passages in the plays of
Terence and particularly of Plautus. Volumes have been written,
especially in recent years, to explain how the law serves to elucidate
those passages, and how they serve even to better purpose in elucidat-
ing the law. For just as the Fasti throw more light on Roman religion
and topography than we receive from the historians of Ovid's age,
so it is certain that we derive more knowledge of the early history
of Roman law from information incidentally conveyed by literary
men like Livy, Cicero, and Plautus than we do from facts intentionally
imparted by scholars like Varro. For any acquaintance with early
law Latin literature is indeed indispensable. And in later times, as

1 Sat. 4, 55.

310 HISTORY OF ROMAN LAW

we noted above, Roman law becomes in turn absolutely essential
for the proper understanding of religious literature.

VI

The intimate connection between the history of Roman law and
that of Language seems scarcely to need pointing out, when our
every-day speech is constantly and openly confessing its many
obligations to that law. This very word obligation, borrowed from
a " vocable of art " devised by the Roman jurists, is a word the his-'
tory of which is impossible to trace till we go back and discover
how they formed it and in what sense they used it. The same is true
of nouns such as person, privilege, prejudice, occupation, exception,
sequestration, confusion; of adjectives such as peremptory, manda-
tory, specific; and of verbs such as adopt, redeem, emancipate. All
these are derived from technical terms familiar to the Roman jurists,
yet their meaning has undergone such change in the course of ages
that their legal origin is quite forgotten. A long list of similar words
in our modern vocabularies could be made by simply working
through an English, French, or even -German dictionary. Some terms,
again, such as usufruct, plebiscite, manumission, servitude, have
passed from Roman into modern terminology without material
change in their original sense; while other nouns, such as solidarity,
have been taken, not from legal nouns, but from technical adjectives.

Not only must we seek in Roman law the parents of many of our
words; there are some also of which the genealogy can be traced
through many gradations of meaning even in the hands of Roman
lawyers. For instance, their word humanitas signifies in different
passages: (1) human nature, (2) sensibility, (3) kindness, (4) com-
passion; while pietas denotes in different legal texts: (1) sense of duty
based on family ties, (2) conscientiousness shown by an employee,
(3) the feeling expected from a Christian toward his church and its
members. Nor does this enumeration by any means exhaust all the
shades of meaning given by Roman lawyers to those two words.1

It should also be remembered that among the most important
contributions to the history of Roman law are the curious details
and the citations from ancient texts which have been preserved by
Roman students of the science of language, such as Varro and Festus.
They alone have saved from oblivion, as one may see fully set forth
in the pages of Bruns, much antiquarian lore invaluable to the legal
historian. Even the best Roman lawyers were also dabblers in philo-
logy, as we can see from the derivations of legal terms which Gaius
and others have handed down to us. Though their efforts in this
line savor of the famous derivation of Erie Canal from Eridanus,
they are valuable as showing their authors' point of view. Nor does
1 Krtiger, Z. der Sav. Stift. fur RG, vol. 19, 1888, p. 6.

ROMAN LAW — HISTORICAL SCIENCES 311

this comprehend all the services of the philologist to legal history.
For in comparative jurisprudence it has been shown, as for instance
by the present Regius Professor of Civil Law in the University of
Cambridge, that by tracing the etymology and analyzing the use
of words like fas, ius, lex, and their Greek and Teutonic equivalents,
much historic light can be thrown on the earliest conceptions of law
as unconsciously denned in language.1

Thus by investigating etymologies, by tracing obsolete or obscure
shades of meaning, and by the preservation of rare antiquities,
linguistic scholars both ancient and modern have greatly helped
the legal historian. The civil lawyer has on his part supplied to
the student of language an immense mass of material of well-
authenticated date and authorship, filled with terms from which
have directly descended many of the words now used not only by the
Latin but also by the Teutonic race,

VII

There are two main facts connecting the history of Law and that
of Art in ahy given place. The first is that times of great legal
activity or legal reform almost always coincide with periods of
flourishing art. This may doubtless be accounted for by the fact that
law and art are expressions of the same human intellect, and when
that intellect is roused to energetic action in one form, it usually is
so in others also. The second point is that architecture, sculpture,
and painting must inevitably treat in some measure of subjects
connected with the law of their country. Any one of those arts
may convey legal allusions, just as it may suggest religious or political
ideas, and in order to understand those allusions we have to know
something about law, politics, or religion, as the case may be. Both
points can be well illustrated from the history of Roman law.

In the first place, there can be no doubt that the most glorious
epoch in that history, beginning with the jurists of the Augustan
age and ending with those under the Antonines, Septimius Severus,
and Caracalla, was also the golden age of Roman architecture and
sculpture. For the art of the Augustan period it is enough to cite
that wonderful Ara Pads, whose fragments are scattered among
several European museums, and the remains of which are now being
unearthed under a Roman palace. And the second of those two great
centuries was, so far as we are able to judge, the period of culminating
splendor both in law and in art. Trajan and Hadrian, so great as
legislators, have each left us one of the magnificent monuments of
antiquity, a sculptured column in the one case, and a colossal tomb
in the other. The memory of Marcus Aurelius, in whose day Roman
society was so intensely civilized and modern, has been preserved
1 Clark, Practical Jurisprudence, part i, chaps. 1-6.

312 HISTORY OF ROMAN LAW

for us not only by the Code and Digest, but by famous Roman
works of art both in bronze and in marble. To Septimius Severus we
owe a splendid arch, to Caracalla the remains of still more splendid
public baths; and it should be remembered that Julia Domna, the
wife of the former and the mother of the latter emperor, brought
together in her brilliant salon, not only the best philosophers, orators,
scholars, poets, and artists that the world could then produce, but
also the greatest of Roman jurists, Paulus, Ulpian, and Papinian.1
By the time of Constantine we note a decline in artistic no less than
in legal achievement. Again, when legal activity revives under
Justinian the codifier and reformer, we have his superb and well-
preserved architecture at Ravenna and Constantinople to set beside
his even more enduring legal monuments. After him both art and
law fall into a kind of lethargy, until again, and surely not by accident,
the legal revival during the twelfth, thirteenth, and fourteenth
centuries takes place in the same wonderful period which produced
the early Italian artists. And once again a second renewal of interest
in the study of Roman law, with which the great Cujas is identified,
coincides with the revival of classic art in the Renaissance. There
seems, in short, to have been a sort of tidal movement in the European
mind, by which the history of art and that of law have equally been
affected.

When we come to consider the legal allusions in art, for the under-
standing of which a knowledge of legal history is requisite, we stand
on ground less easy to survey. For here we find nothing but isolated
details, each of which has to be separately examined. A knowledge
of legal history is sometimes useful in clearing up a question of
ancient architecture. Thus the basilica found in Domitian's palace
on the Palatine could not be appreciated unless we kneAv the Em-
peror's legal position as final court of appeal. Similarly, the churches
built in the catacombs could not be understood unless we knew that
the law forbade burial inside Rome, while it also protected all resting-
places of the dead, and that it thus quite unintentionally pointed out
the catacombs as excellent sanctuaries for a persecuted sect. Some-
times the history of Roman law may help us to understand sculpture.
In Bologna, Padua, and even Siena we find wonderful semi-regal
tombs erected to the memory of thirteenth or fourteenth century
jurists. They stand in a public place covered with splendid canopies
of stone, or they rest against the wall of a church, each decorated
with a marble bas-relief which represents the great scholar sitting,
book in hand, giving a lecture to his class of pupils. These beautiful
monuments would mean but little to us, unless we knew from legal
history how great was the fame in his own day of an Accursius or
a Bartolommeo di Saliceto, and how the revival of civil law in Italy
1 Rfrville, La Religion a Rome sous les Severes, p. 201.

ROMAN LAW — HISTORICAL SCIENCES 313

produced a long succession of such teachers, whose labors brought
not only renown but wealth to the cities where they taught.

For understanding the work of painters some knowledge of this
sort is even more needful. In the great Florentine chapter-house of
Santa Maria Novella, which Ruskin has so elaborately described,
there is a fresco depicting the seven divine sciences personified by
as many female figures. Beneath the figure which represents the
science of Civil Law sits the Emperor Justinian. She carries a sword
and a globe, while he holds in his hands the Institutes. No one could
appreciate the point of this personification unless he knew the
position of Roman law in medieval Italy and the reverence with
which Justinian was regarded, a reverence to which Dante in his
Paradiso has borne witness. Again in the Sala della Segnatura in the
Vatican, we find, among frescoes representing religious scenes, such
as that of Moses giving the Tables of the Law, a great fresco by
Pierino del Vaga which sets forth the delivery of the Code by Jus-
tinian to Tribonian. This is matched by another fresco which depicts
Pope Gregory handing down the Decretals. To understand these
subjects we must know something of the causes which led men to
regard the civil and canon laws as the very foundation-stones of
justice.

In other cases we find inscriptions to interpret. For instance, in the
Sala della Segnatura Raphael has written Rerum divinarum notitia
over the head of his Theology, and lus suum unicuique tribuens over
the head of his Justice, thus quoting direct!}7 from Ulpian and the
Institutes. Similarly Ambrogio Lorenzetti, in his great fresco of the
Sienese Council Chamber, places two angels labeled Distributiva
and Commutativa above his female figure personifying Justice, and
thus refers to St. Thomas Aquinas and Aristotle. Here we need
Roman Law to explain the one inscription and Philosophy to ex-
plain the other, just as for the great mosaic of the Lateran Triclinium
the history of Politics can alone furnish an adequate commentary.1

After this brief and most imperfect survey of the relations existing
between Roman law and other sciences we may perhaps ask our-
selves why it is that AVC find its remains and trace its influence in so
many different quarters. To this question a reply is furnished by
two historical facts.

First, the vitality of the Roman Empire was such that it lasted
actually for a thousand years in the East, and theoretically much
longer still in the West of Europe. Secondly, the law created by it,
being a purely intellectual product, was even more lasting than the
Empire itself; so that the barbarians, who destroyed the outward
and visible signs of the Roman power, were themselves subjugated
1 Bryce, Holy Roman Empire (8th ed.) p. 117.

314 HISTORY OF ROMAN LAW

by its inward and spiritual grace. Inasmuch, then, as Roman law
was the most durable material in that vast imperial edifice the
ruins of which so long overshadowed Europe, we can well understand
that its fragments should be incorporated into almost all the lesser
structures which have since been reared by the mind of Western
peoples.

PROBLEMS OF ROMAN LEGAL HISTORY

BY MUNROE SMITH

[Munroe Smith, J.U.D., Professor of Roman Law and Comparative Jurisprudence,
Columbia University, b. Brooklyn, N. Y., 1854. A.B. Amherst College, 1874;
Columbia University Law School, 1875-77; LL.B. ibid. 1877; Berlin, Leipzig,
and Gottingen Universities, 1877-80; J.U.D. Gottingen, 1880; Lecturer on
Roman Law, Columbia University, 1880-91; Adjunct Professor of History,
ibid. 1883-91; Lecturer on Roman Law, Georgetown University Law School,
1902-05; Fellow of New York Academy of Political Science, Member American
Historical Association, American Political Science Association, Societ6 de
Legislation Compare"e, Internationale vereinigung fur vergleichende Rechts-
wissenschaft. Author of Bismarck and German Unity, 1898; chief editor Polit-
ical Science Quarterly.}

To attempt to recapitulate, within the limits of a spoken address,
the unsolved problems of Roman legal history would be an absurdity.
Such an undertaking would make it necessary for us to follow the
development of the Roman law from the Twelve Tables to Justinian's
law-books in order to indicate what portions of this millennial move-
ment are still obscure. Even then the survey would be incomplete,
since the history of the Roman law neither begins with the Twelve
Tables nor ends with Justinian. It begins at that unknown date
when Rome began and it has not ended yet. To select a narrower
period and to single out what seem the more important problems
would be more feasible; but the mere enumeration of difficulties
would be neither interesting nor profitable.

The best excuse for a paper on the problems of any science is the
writer's conviction or hope that he may be able to make some con-
tribution toward their solution, if it be only by suggesting unworked
lines of investigation which appear to him to promise useful results.
It is my belief that for the most important period of Roman legal
history — the period in which the ancient Roman law, public and
private, reached its highest development, and which extended,
roughly speaking, from the middle of the third century B. c. to the
middle of the third century A. D. — there is a promising method of
investigation or line of approach which as yet has been scantly
utilized. The method which I advocate is that of comparison; and
the comparison which I suggest is with Anglo-American legal de-
velopment from the thirteenth century to the present day.

The older lines of investigation seem to be worked out. It is not
likely that new material of importance will be discovered; we can
hardly hope for a second find like the fourth book of the Institutes of
Gains; and all direct methods of interpreting the existing sources
have been so diligently and ably exploited by European jurists, from
Cujacius to Mommsen and Lenel, that every student of the Roman

316 HISTORY OF ROMAN LAW

law now has the instinctive feeling that a new interpretation is
probably a very doubtful interpretation.

The usefulness and the limitations of the comparative method of
studying legal history perhaps need more accurate definition than
they have yet received. The assumption on which comparative
jurisprudence is based is the essential identity of human nature
everywhere. The inference is that social developments among all
peoples would be identical if all had reached the same stage of de-
velopment and were living under identical conditions. In this last
qualification we have the first and most important limitation upon
the comparative method. Conditions are never identical: they are
at most broadly similar. Accordingly, the working hypothesis on
which comparative jurisprudence proceeds is that peoples in the
same general stage of social development are likely to approach
social problems from similar starting-points and to attempt their
solution on similar lines. The inference is that a fully known develop-
ment in one nation may help us to interpret a partly known develop-
ment in another nation. Proceeding with proper caution, we may
even fill gaps in the historical record of one system by examining the
intermediate links in a similar chain of development in another
system. Such reconstructions, it is needless to say, will seldom be
indisputable, but they will be more nearly correct than the products
of the historical imagination.

Another limitation upon the comparative method, as an agency
in historical reconstruction, is found in the fact that different legal
systems do not develop in absolute isolation. The history of human
law, as of all civilization, is largely a history of borrowings. I think,
however, that this limitation is fully appreciated by students, and
that there is at the present time little danger that it will be disre-
garded. The tendency of historical jurisprudence now, as in the past,
is rather to exaggerate than to overlook the borrowed elements in
each legal development. Because the Romans had certain institu-
tions which were not primitive and which resembled Greek institu-
tions, and because similar institutions existed at a still earlier date
in Egypt and in Babylon, there has been an over-readiness among
students to assume, without sufficient evidence, a series of imitations
and an unbroken chain of derivation. Reasoning of this sort has
attributed to Roman sources not a few English institutions which on
closer investigation appear to be independent products, as truly
English as they were truly Roman, or, to put it more accurately,
neither English nor Roman but human. Their similarity is due
to the similar working of the legal mind under analogous con-
ditions.

It must be granted, however, that the comparative method is to
be used with caution; that the movements compared should be

PROBLEMS OF ROMAN LEGAL HISTORY 317

intrinsically comparable; and that allowance should be made for
possible borrowings.

Given these limitations, it is not surprising that comparative
study of legal institutions for purely scientific purposes has thus far
been confined for the most part to the field of early law. There has
been greater safety here, because the conditions of social existence
are more uniform among barbarous peoples than among civilized
nations, and because such peoples are less likely to know and to
imitate foreign customs.

In this part of the field the application of the comparative method
to the problems of Roman legal history has already yielded valuable
results. The comparative study of early law in general has thrown
light into many corners which were hopelessly dark to the later Ro-
mans themselves. " Not for all things established by our ancestors,"
wrote Julian, "can a reason be assigned"; but for quite a number
of the things which the later Romans found inexplicable we are now
able to assign reasons that are not merely plausible but convincing.

To the later and more important stages of Roman legal develop-
ment — to the public law of the later Republic, and to the civil and
praetorian law of the later Republic and of the early Empire — the
comparative method has not been applied, or has been applied
sporadically only and with little result. The reason is very simple.
The jurists of Continental Europe have rightly felt that the other
and more modern legal systems with which they are acquainted are
not available for comparison. As regards public law, they have
been living under absolute monarchies or under constitutional
monarchies in which the crown is still a real force. They have had
no personal and vital acquaintance with republican government
conducted on a large scale and maintained for a long period — no
such experience as Englishmen have had in substance for two cen-
turies and Americans in form and in substance both for more than
a century. As far as popular participation in national government
has been introduced in the larger European states, it has been
borrowed from England and adapted to Continental conditions.
As regards private law, the Continental European jurists have had
personal and vital acquaintance with only two systems: the remnants
of the old Germanic law — a law arrested in its development in the
tenth century — and the law of the later Roman Empire, which
at the close of the Middle Ages they borrowed en bloc, and which
they have since been assimilating and modifying. The one Germanic
system which has had an unimpeded and continuous development, the
one modern system which has an independent history comparable
in its duration with that of the Roman law, is to them almost a
closed book. On the other hand, the English, who have the data for
comparison, have done little serious work in the field of Roman legal

318 HISTORY OF ROMAN LAW

history, and the best of that work has been done in the field of Roman
public law. In the field of private law they have relied on French and
German writers, not only for the historic facts, but for the inter-
pretation of those facts.

But, it will be asked, are the modern Anglo-American and the
ancient Roman legal systems fairly comparable quantities? Are
there such broad analogies in their general development as to war-
rant the hope that a minute study of the one will be serviceable in
interpreting the other? I grant the differences; they are sufficiently
evident; but I insist on fundamental although less obvious analogies.
The constitution of the Roman Republic was substantially an
unwritten law, as is the English Constitution. It consisted of pre-
cedents, that is, of adjustments reached in the political field at the
close of political conflicts. Of these adjustments only a part was
incorporated by the Romans or has been incorporated by the English
in declaratory statutes. In establishing their Republic, the Romans
retained their ancient kingship for ceremonial purposes, housing the
rex sacrorum in the old royal palace and parading him as figurehead
of the state church. The real powers of the kingship in church and
in state were intrusted to officials; and these in the Latin Repub-
lic were elected by political parties. The English have retained a
less shadowy kingship, but they have transferred the really import-
ant powers of the crown to a small body of officials who represent
the dominant party in an elective assembly. The Romans put
their ex-magistrates into their Senate, the English keep their ex-
ministers in their Privy Council. The American Constitution is
indeed a written one, but there has grown up beside it a body of
authoritative precedents. The American executive bears more re-
semblance on the whole than does the English premier to a Ro-
man consul. He is freer in his action than the consul in that he
has no colleague to control him. A shrewd Frenchman, M. Raoul
Frary, has remarked that England is a republic with an hereditary
president, while the United States is a monarchy with an elective
king. The common element and the fundamental element in all three
constitutions is the exercise of governmental power by men selected
by party organizations.

Great Britain, like Rome, has built up a world-empire; and like
Rome it has combined domestic liberty with external power by
limiting governmental authority at home and permitting it to act
freely abroad. The reserve powers of the British crown furnish
the constitutional historian with a modern instance of the imperium
militiae of the Roman consul. The viceroy or governor is the English
equivalent of the proconsul or propraetor; and colonial affairs are
controlled by the British Privy Council as provincial affairs were con-
trolled by the Roman Senate. As a matter of policy, Great Britain

PROBLEMS OF ROMAN LEGAL HISTORY 319

has conceded, as did Rome in the republican and early imperial
periods, a large measure of local self-government to its subjects
beyond the seas. In both empires we find the war power and the
control of diplomatic relations in the hands of the home government,
the ordinary administration decentralized and left in the hands of
local authorities.

The United States, after rounding out its continental domain, has
recently acquired possessions beyond the seas. In dealing with them
it is somewhat embarrassed by the absence from its written con-
stitution of indefinite and general governmental power — power
corresponding to the Roman imperium militiae or to the residuary
authority of the British crown. This difficulty was felt a century ago,
when the process of continental expansion was beginning; and each
successive exigency has been met, and is being met, by the develop-
ment in our unwritten constitution of the war powers of the Amer-
ican president. In the administration of its earlier continental
acquisitions, the United States, following the example of Rome
and of Great Britain, encouraged the development of local self-
government ; and it is following the same policy in its new insular .
dependencies.

In the expansion of Great Britain and of the United States, as in
the expansion of Rome, the fact of central interest is the upbuilding
of empire by a free people; and in the English and American empires
— if the insular dependencies of the United States are to be dignified
with so high-sounding a title as empire — the fundamental problem
is the same which confronted the statesmen of Republican Rome,
namely, the reconciliation of empire with liberty.

One of the devices of Roman public law for limiting governmental
power at home was an elaborate system of checks and balances.
The power of every official was limited in its practical exercise by
the independent and possibly opposing powers of other officials.
In the hierarchy of superior and inferior officials which constitutes
the administrative system of the modern European state, no such
checks as these exist; but they are familiar to the English public
lawyer, and they have been greatly multiplied in American con-
stitutional law. In the place of administrative control of the inferior
by the superior, which is so highly developed in modern European
law, the English and American law, like the Roman, has developed
control through the ordinary courts. When, for example, a Roman
aedile destroyed merchandise which obstructed the public highway,
the legitimacy of his action was tested at Rome, not by appeal to
the consul, but by an action to recover damages for illegal destruc-
tion of property, just as a similar exercise of police power would be
tested in Great Britain or in the United States.

It may finally be noted that contemporary political conditions in

320 HISTORY OF ROMAN LAW

the United States help us rightly to understand the dramatic final
century of the Roman Republic. When we cease to view that period
through the eyes of European scholars, we shall recognize that its
salient characteristic was the appearance on a magnificent scale of
those political personages whom we call "bosses"; and we shall dis-
cover that the Latin word for boss was princeps. Princeps, Momm-
sen tells us, was a word commonly used in the later Republic to
designate the most prominent citizens. The definition might be
more exact. The citizens who were designated as printipes — men
like Sulla and Pompey and Crassus and Julius Caesar — were
prominent before all things in political management. They were
the men who controlled the machinery of the senatorial and popular
parties. The members of the first triumvirate — a body which an
American politician would instinctively designate as "The Big
Three " - were described by Cicero as principes. In our federal
system of government, we have not developed any boss whose
authority reaches beyond the limits of a single state; we have no
national bosses; and if we had them, our constitutional and ad-
ministrative arrangements are such that even a national boss could
not readily put himself at the head of a large mercenary army in
New Mexico or in Alaska, and upset the government by marching
on Washington. These variations, however, do not affect the sub-
stantial identity in political science of our boss and the Roman
princeps; and this identification enables us to understand that the
official theory of Augustus and of his immediate successors — the
theory that the free commonwealth was still in existence — did not
seem to the Roman public to be a fiction. Augustus was not an
emperor in our sense of the word; he was simply the boss raised to
his highest terms; and that consuls and praetors and all the other
officers of government were elected on his nomination, and that the
Senate was filled with his henchmen — these were the familiar ac-
companiments of boss rule. From this point of view, we can fully
understand Pliny's remark, that the very men who were most averse
to recognizing anything like monarchy (dominatio) had no objection
to the authority of a boss (princeps).

The development of the Roman boss into an emperor was made
possible by his control of the army. For this development English
constitutional history affords no parallel, unless in the protectorate
of Cromwell; and here the evolution into monarchy remained in-
complete. To find any really parallel processes in modern constitu-
tional history we must turn to the Latin peoples.

In the field of private law, however, the movement in the early
Empire was substantially a continuation of that in the late Republic;
and during both periods the processes by which the Roman law, civil
and praetorian, was developed, were fundamentally the same as

PROBLEMS OF ROMAN LEGAL HISTORY 321

those by which Anglo-American law and equity have been developed.
This fundamental similarity is not generally appreciated, because the
mode in which the Roman law was developed is not commonly under-
stood. We read in every legal history that the Roman civil law was
cast into the form of a code, the famous Twelve Tables, about four
and a half centuries B. c., and that the further development of this
law was accomplished chiefly by interpretation of the Twelve Tables.
We read also that the interpretation which was accepted as author-
itative, and by which the law was developed, did not proceed from
judges, but until the third century B. c. from a college of priests,
and after that time from a small number of private citizens who
were known as juris prudentes. The English common law, on the other
hand, as we all know, has been built up by judicial decisions: it is
simply the permanent practice of the tribunals. At first glance it
does not seem as if these two processes were analogous. On closer
inspection, however, the differences are seen to be superficial. The
law of the Twelve Tables was not a code in the modern sense of the
word; it was simply a collection of the principal rules of early
Roman customary law. From the point of view of comparative juris-
prudence, it belongs to the same class as the continental German
leges and the Anglo-Saxon dooms of the early Middle Ages (fifth to
the ninth centuries). It has recently been asserted by a prominent
Italian historian that the Twelve Tables were probably a private
compilation, and that the story of their construction by the decemvirs
and of their submission to and acceptance by the Roman popular
assembly deserves no more credit than the legend of the slaying of
Virginia which forms a part of the narrative of the decemviral
activity. Still more recently this thesis has been defended with great
ingenuity by a distinguished French legal historian. I myself have
not been convinced by their arguments; I still cling to the belief that
the essential part of the Roman story is probably correct, and that the
Twelve Tables were probably accepted by a Roman assembly as
the German leges were accepted a thousand years later by German
tribal assemblies. For my present purpose, however, the answer
to this historical question is not material. In the later Republic the
compilation known as the Twelve Tables was officially regarded as
a lex; it was revered as a charter of popular rights and as the cradle
of the civil law; but it was interpreted with a| much freedom as if
it had been merely a private statement of the rules governing the
administration of justice in a far-away and semi-barbarous age. It
really exercised little more influence on the administration of justice
during the last century of the Roman Republic than the laws of
Alfred exercised upon the administration of justice in the reign of
Elizabeth. The compilation had been surrounded for generations by
a growing mass of interpretation, which had so modified and sup-

322 HISTORY OF ROMAN LAW

plemented its primitive and scanty provisions that for all practical
purposes the interpretation and not the lex was the law.

The first seeming distinction between the development of Roman
civil and English common law thus disappears. Each represents a
development from rude and simple custom into a highly refined and
complex jurisprudence by means of interpretation. There remains,
however, the apparent difference between the interpreters. What
was there in common between the jurists of republican Rome and
the king's judges in England? To answer this question we must
consider the position and activity of the Roman jurists. They
obviously were not judges in the ordinary sense, for they did not
hear pleadings or try cases. At the first glance, they rather resembled
our lawyers, for they gave advice to all who chose to consult them.
They helped their clients to avoid trouble by drafting contracts,
wills, and other instruments; and when trouble had arisen, they
gave opinions (responsa) on the legal points at issue. So far at
least their activities were those of practicing lawyers. But they
differed from all other practicing lawyers of whom we know anything
in two important respects. In the first place, they did not take
charge of cases in litigation, either as attorneys or as barristers. They
were willing neither to prepare cases for trial nor to argue cases
before the courts. Such matters were attended to by professional
orators like Cicero. Cicero was a lawyer in our sense, but at Rome
he was never regarded as a jurist. In the second place, while the
Roman jurists were always ready to furnish opinions, they neither
expected nor accepted pecuniary rewards. The rewards at which
they aimed were the gratitude of those whom they had served, the
confidence of the public, and eventual election to political office.
As practicing lawyers they were, accordingly, servants of the public
in general rather than servants of their special clients.

To appreciate how far the Roman jurists discharged the same
function as the English judges, we must note how controversies were
actually decided under each of these two great systems of law.
Controversies were actually decided at Rome, not by the magistrate
who heard the pleadings, but by indices, who were private citizens.
Similarly, controversies have actually been decided for the last seven
centuries in the Anglo-American administration of justice by juries,
also composed of private citizens. Neither the Roman indices nor the
English jurymen were supposed to know the law. As English jury-
men are instructed by the judges, so the Roman indices were in-
structed by the jurists. The instruction might be directly obtained
by a index if he chose to ask for it, but it usually came to him in the
form of an opinion obtained by one of the parties. It was of course
possible that both parties might have obtained opinions from different
jurists, and it was conceivable that the opinions might be conflicting.

PROBLEMS OF ROMAN LEGAL HISTORY 323

Conflicts, however, rarely occurred, because the republican jurists
in giving their opinions were not in the position of paid advocates
trying to make out a case for their clients; they were in the position
of unpaid and impartial servants of the public. Under these cir-
cumstances differences of opinion were no more numerous than those
which have always existed in the English and American courts.
The republican indices were not bound to follow the opinion of any
jurist; they had the powers of English criminal jurors, they were
judges of law and of fact alike. In both systems, however, it is
noteworthy that the decisions actually rendered by indices or by
jurymen were never cited as precedents. What was cited at Rome
was the response of a jurist, and what is cited in Anglo-American
law is the opinion of the court. Hobbes perceived the fundamental
analogy between the Roman jurists and the English judges when he
declared, in his Leviathan, that the king's judges were not properly
judges but jurisconsults.

The Roman law was thus developed, as the English law has been
developed, not by the decision of controversies, as is sometimes said,
but by the opinions expressed in connection with such decisions by
specially trained and expert servants of the public. The English judge
combines some of the powers of a Roman praetor with the authority
of a Roman jurist — he is half praetor and half iurisprudens; but his
influence upon the development of the law has not been praetorian,
but jurisprudential.

It should be noted, further, that single responsa did not make law
at Rome any more than instructions from judges to juries have made
law in England or in America. What were regarded at Rome as
authoritative precedents were the so-called "received opinions/' that
is, the opinions which were approved and followed by the juristic
class. In England and in America, similarly, it is not the prelim-
inary rulings or the final instructions of the trial judges, but the
opinions of the bench to which cases are carried on appeal, that
constitute precedents; and it is doubtful whether a decision of even
the highest court in a case of first impression really makes law. It
seems the better opinion that it is the acceptance of such a decision
by professional opinion generally and its reaffirmation by the court
in later cases which make it really authoritative.

The real difference between the Roman jurists and the English
judges is that the Roman jurists, like the law-speakers of our German
ancestors, were designated by natural selection. It is interesting to
note that, before the conversion of the Germans to Christianity, their
law-speakers were priests, just as the older Roman jurists were
pontifices. In the Frankish period the law-speakers began to be
artificially selected; the Frankish counts appointed advisers (rachi-
neburgi); and these advisers developed into the scabini of the

324 HISTORY OF ROMAN LAW

Middle Ages. In other words, the German law-speaker is the ancestor
of the European judge. At Rome, also, in the imperial period, arti-
ficial selection was substituted for natural selection. Certain jurists
received from the Emperor " the right of responding, "and the indices
were not bound to consider any opinions except those proceeding
from these certified or patented jurists. This change brought the
Roman jurists a step nearer to the Anglo-American judges. The
evolution was completed, as I shall presently indicate, in the second
century after Christ ; but before describing the processes by which law
was made in the Empire, we must consider and compare Roman
praetorian law and English equity, in order to see how far the pro-
cesses by which these systems were developed present real analogies.

Roman praetorian law and English equity are in so far analogous
as they both represent what the Romans called ius honorarium,
official law. In both cases the new law was produced by governmental
agencies which were not exclusively nor indeed primarily judicial -
agencies which set themselves above the previously existing law, and
which not merely supplemented it but overrode it.

There is a superficial difference between the way in which the
Roman praetors made law and the way in which the English chan-
cellors made it. The praetors used the quasi-legislative form of ordin-
ance or "edict"; the English chancellors developed new rules in
judicial fashion by decisions rendered in single cases. When, however,
we examine the edicts of the Roman praetors and consider how their
provisions were applied, the difference almost disappears. The praetor,
like the chancellor, was originally an administrative rather than
a judicial officer; but his duties were in the main judicial: it was his
chief business to arrange for the termination of private controversies.
The edict which each praetor set up at the beginning of his year of
office was not a series of commands but a programme. In it he pro-
vided certain remedies and indicated under what circumstances each
remedy would be given. This programme was carried out, as single
cases were presented, by means of formulas sent to the indices . The
formula was a command: if the -index found certain allegations of the
plaintiff to be true, and if he did not find certain other allegations of
the defendant to be true, he was commanded to render a certain
decision. The English chancellor decided cases as he saw fit. The
Roman praetor caused cases to be decided as he saw fit. A new rule
working itself out in chancery was first disclosed in the decision of the
special case which suggested it, and any modification of the new rule
was subsequently revealed in the same way. Any new rules which the
Roman praetor intended to enforce, and any modifications which he
intended to make in the rules laid down by his predecessors, were
announced in advance, at the beginning of his year of office. Funda-
mentally these two methods of creating law are identical, and they

PROBLEMS OF ROMAN LEGAL HISTORY 325

both resemble law-finding rather than law-making. The rules laid
down were suggested in both systems by actual controversies, and
they were amended in both systems as new controversies afforded
new points of view. In form the Roman process was more considerate
of private interests. The complaint of the English common lawyer,
that equity was administered according to the length of the chan-
cellor's foot, would have lost much of its force if the length of the foot
had been indicated in advance.

The similarities of the two movements are more striking than the
formal differences between them. At the outset neither the Roman
praetor nor the English chancellor was held to be capable of making
or finding law or of creating new rights. Each, however, could issue
orders, and each could enforce these orders in personam by fine and
imprisonment. Each was therefore able to impose new sanctions and
to create new remedies; and eventually, in both systems, it was
recognized that where there was a sanction there must be a legal rule
and where there was a remedy there must be a legal right. Strictly
speaking, the rules laid down in the edicts of the praetors and those
expressed or implied in English decisions in equity became law by
force of custom. It was by the iteration of the same rule in successive
praetorian edicts (edicta tralatitia) that the Roman official law was
built up. It was by the observance of precedents and the develop-
ment of a settled practice that English equity came to be a regular
part of the English law.

There was, however, one important historical difference between
the two movements. The development of the Roman praetorian law
not only made Roman law more equitable, but it introduced into that
law the commercial customs of the Mediterranean — customs which
apparently date back to the Babylonian Empire. A similar reception
of general commercial law took place in England, but here it came
later, after the development of equity, and chiefly through the action
of the common law courts. In both cases, however, as Goldschmidt
has pointed out, commercial law was not brought in as a distinct and
separate system, as in the modern continental European states, but
the general 1-aw was commercialized. The English law was commercial-
ized by decisions of the common law courts, largely rendered in the
eighteenth century, just as the Roman law had been commercialized
by praetorian edicts in the second and first centuries B. c.

In the Roman imperial period the processes of law-making became
more obviously similar to the processes by which law has been devel-
oped in modern times. Under the Empire law-finding gradually
became altogether governmental. The first step in this direction was
taken, as we have seen, when the jurists became representatives and
agents of the Emperors. The next step was the establishment of new
courts, civil and criminal, in which imperial officials heard the plead-

326 HISTORY OF ROMAN LAW

ings and the evidence and rendered the decisions (indicia extraor-
dinaria). The last step was to transform the surviving courts of the
older republican type — the praetorian courts — into purely govern-
mental courts. This change was accomplished by substituting for
independent citizen indices subaltern officers of the court itself, mere
referees. This last change brought the Roman courts into sub-
stantially the same form as the European continental courts of the
present day. To describe the change in English phraseology, not only
did the magistrates become judges, but jury trial was abolished.

In proportion as law-finding was governmentalized, it was also
centralized. From the judgments of the independent indices appeals
had never been permitted. From the decision of the imperial judges
appeals ran to the Emperor or to such higher judges as he might
designate. In the imperial council, or rather in that branch of the
council which came to be known as the auditory, the Roman Empire
obtained a supreme court of appellate jurisdiction.

In connection with these changes, all the more important offices of
a judicial character came to be filled by the patented jurists. During
the republican period and under the first emperors, the jurists might
occasionally act as indices and they frequently became magistrates;
but their control over law-finding, although practically complete, was
for the most part indirect. The great Roman jurists of the second and
third centuries of the Christian era were judges in the modern sense ;
and it was by their direct activity, that is, by their decisions on points
of law, and particularly by the decisions rendered in the imperial
auditory, that the law of the Empire was chiefly developed. Their
decisions were reported and digested in their own writings. To
describe the juristic literature of the early Empire as " legal theory "
is to misrepresent its character and its authority. It was " juris-
prudence " in the modern French sense, i. e. settled juridical practice.
If the eminent European scholars who have written the standard
histories of the Roman law had been familiar with the development
of Anglo-American law, they would readily have recognized the true
character of the legal literature of the Roman Empire.

In the early Empire, as in the Republic, direct legislation played
only a subordinate part in the development of the law. After the
middle of the third century, when the production of juristic literature
ceased, it is commonly assumed that all legal change was made by
direct imperial legislation. As late as the beginning of the fourth cen-
tury, however, the law was still developing largely by decisions. The
imperial rescripts which date from the latter part of the third and the
early part of the fourth centuries, and which constitute so important
a part of Justinian's Codex, are case-law, that is, they are decisions
reached by the imperial supreme court; and for the most part these
rescripts are fully up to the level of the previous century. It was

327

not until the fourth century that the Emperors began to declare that
rescripts issued in single cases were not to be regarded as establishing
general rules. Then, indeed, legislation became almost the sole factor
of legal development. This change, however, was not the result of
a progressive evolution; it was a symptom of degeneration. Judicial
decisions ceased to be regarded because jurisprudence had sunk to so
low an eb"b that the decisions were not worth regarding. The older
case-law, however, stood in undiminished honor and authority. Much
of it was saved in Justinian's Digest, some of it in his Codex. Only
in these casuistic portions of Justinian's compilation were there seeds
of life; and from the close of the eleventh to the close of the nine-
teenth century these seeds have yielded rich and renewed harvests.

The subject assigned me, with which I have been taking certain
liberties, is not European legal history nor legal history in general, nor
comparative jurisprudence, but Roman legal history; and for this
reason I have thus far confined myself to indicating how largely the
study of English legal history may be expected to help us to a deeper
and truer comprehension of Roman legal history. I trust, in closing,
that I may be permitted to take a further liberty with my theme,
and to indicate that a careful study of Roman legal history will be of
great service to the Englishman or American who desires to compre-
hend his own legal history. I lay little stress on the point that we may
thus recognize what has been borrowed; I desire chiefly to insist
upon the point that we may thus better appreciate the true character
of English legal history as an independent development. Furnished
with a knowledge of the Roman law and of its development, the
English investigator will more accurately gauge by comparison the
excellencies and the defects of the English law. He may not find, as is
commonly claimed, that the Roman law is more scientific, — a claim
which I take to mean that its broader generalizations are more cor-
rect,— but he will certainly find that the Roman law is more artistic.
The sense of relation, of proportion, of harmony, which the Greeks
possessed and which they utilized in shaping matter into forms of
beauty, the Romans possessed also, but the material in which they
wrought was the whole social life of man. There was profound truth
in the saying of the Roman jurist that law was the " Ars boni et
aequi."

The comparative student will find also that while the English law
has developed in certain directions further than the Roman, the
Roman law in certain other respects had attained, at the close of the
republican period, a development which seems to go beyond ours.
This is true, for instance, in the whole field of commercial dealings.
The great regard paid in all commercial transactions to good faith
and the instincts of an honest tradesman, and in particular the
abandonment by the Romans, two thousand years ago, of the primi-

328 HISTORY OF ROMAN LAW

tive and dishonest doctrine of caveat emptor, — a doctrine which the
English law still unaccountably retains, — point out lines along
which, I believe, our own law is bound to develop.

Best of all, the comparative student will learn to distinguish
between that which is peculiar and therefore accidental in both
systems and that which is common to both and therefore presumably
universal. It has long been the hope of some of the greatest modern
jurists, both in English-speaking countries and in Europe, that by
strictly inductive study it may be possible to discover a real instead
of an imaginary natural law. The corresponding hope of the legal
historian, that it will in time be possible to formulate the great laws
that govern legal development, is not, I believe, an idle dream; and
I am sure that the minute comparative study of Roman and Anglo-
American legal developments will carry us further toward such a goal
than any other possible comparison.

.ccountably

parativc studtnr \vill }«ani '<<
IH n!iar and tli
r-oramorvto both aiid . ,b!y

•!i'; hope of j-'Ortlf- »;»•:,(. Mi.

-speaking countri'-s nr.t '. that by

it may be possible to cii- ;tl ii;at«ad

i lav. The corresponding hop* of ?h«- Iv^ai
tiine V)e possible u> formula'.* ;•

j'H' Tit, is not, I bHievp, an i<l: 'Ui.l

fo '•oia{>arative etud^ of iiom&n and A!if?lu-

neni? \viil earrv u> further toward sucb a ^u:. !

ARGUMENT 1\ THE COURT OF APPEALS

U>tn(l-{>ainlf>d Photogravure from the Painting by P. Salzedo

It is a most difficult thing to invest with startling interest a picture of a
court proceeding, but Mr. Sal/edo has exhibited his talent in a most effective
way by taking as the subject for one of his greatest ell'orts, a court-room
scene in England. The incident is an address by Counsel before a full bench of
judges, in which the portrayal is so perfect that it has called forth ejaculations
of admiration from every one who has examined the original.

SECTION B — HISTORY OF COMMON LAW

SECTION B — HISTORY OF COMMON LAW

(Hall 11, September 21, 10 a. m.)

CHAIRMAN: PROFESSOR JOHN D. LAWSON, University of Missouri.

SPEAKERS: HONORABLE SIMEON E. BALDWIN, Judge of the Supreme Court of

Errors, New Haven, Conn.

PROFESSOR JOHN H. WIGMORE, Northwestern University.
SECRETARY: PROFESSOR C. H. HUBERICH, University of Texas.

THE HISTORY OF THE COMMON LAW

BY SIMEON EBEN BALDWIN

[Simeon Eben Baldwin, Associate Justice of the Supreme Court of Errors of Con-
necticut; Professor of Constitutional and Private International Law, Yale
University, b. New Haven, Connecticut, February 5, 1840. A.B. Yale, 1861;
A.M. ibid. 1864; student at Yale and Harvard Law Schools; LL.D. Harvard,
1891; member of various state commissions; President American Bar Associa-
tion, 1890; President of Association of American Law Schools, 1902; member of
National Institute of Arts and Letters, American Association for the Advance-
ment of Science; President of International Law Association of London, 1899-
1901; corresponding member of the Massachusetts Historical Society, The
Colonial Society of Massachusetts, American Historical Association, American
Political Science Association ; President of the Connecticut Society of the Archae-
ological Institute of America, 1902. Author of Modern Political Institutions ;
American Railroad Law; Digest of Common Law Reports ; The American Judi-
ciary. Co-author of Two Centuries' Growth of American Law; and other noted
works and papers on law.]

IN mapping out the field of science for the purposes of this Con-
gress, it has been thought that it could best be presented for our
consideration in seven great divisions. There is that of Rule, which
deals with universals; that of History, which records the story of
mankind in recent time; that of Physics, which looks to our material
environment; that of the Mind, which makes little of environment;
that of Utility, which makes the most of it; that of Social Regulation,
which applies law to society; and that of Culture, which creates
character.

Nominative science can tell us of the philosophy of law. Physical
science can show how law succeeded savagery, and to what extent
it has been moulded by climatic and geographical conditions. Mental
science discloses the subject of law and is our guide in methods of
judicial procedure. Utilitarian and regulative science apply it to
its proper objects in a proper way. Cultural science rests upon it and
presupposes it.

In considering the history of law, it has been deemed convenient
to confine the discussions of this department of the Congress to the
consideration of the two kinds of law which have had the greatest

332 HISTORY OF COMMON LAW

influence on the modern world, and a comparison of the various legal
systems which have been their fruit.

Whatever preceded the Roman law may, for the purposes of trac-
ing the development of legal institutions, not only in Europe and
America, but now to a large extent in Asia, be regarded as merged
in it. The unwritten law took on written form as a finality so far
as government could accomplish it, under Justinian. But soon there
came, or began to be more manifest what had long been growing up
under the institutions of a decaying empire, or beyond their reach,
the upgrowth of other unwritten rules which at last, in every Euro-
pean community, large or small, took shape as its common law.

Why was it that the Roman law was never put in formal order
until Rome had ceased to be the mistress of the world ?

Why was it that later ages achieved more with the ruder instru-
ments of what seemed disorder and was diversity?

Is it not that law, when distinguished from morals and considered
as a social rule, is personal or local rather than universal in its essential
attributes?

How much of it is there of which it can truly be said with Cicero1
that it is not. one law at Athens, another at Rome, but one, un-
changing, and eternal?

The history of religion shows us that the early ministers of
religion have sought to give to law a sacred character, and make it
the word of God. In one sense we may still affirm this. In another
we cannot.

Its substratum everywhere must be the three rules, honeste vivere;
alterum non laedere; suum cuique tribuere* These bear the stamp of
divinity. They are questioned by no one, who thinks clearly and
fairly; no one at least since the Christian era came in.

It has been well said, in describing the origin of the English com-
mon law, "that the laborer shall receive his hire; that contracts
shall be obligatory, and the rights of property in all its relations
respected; that personal security and reputation shall be protected
from both malice and negligence; that the family relations shall not
be disturbed, nor equal justice refused to any man — are not propo-
sitions that depend for their support upon the customs of our ances-
tors any more than upon the precepts of the Pandects. They would
be first principles in our law, whatever custom to the contrary might
ever have prevailed anywhere. Indeed, no custom upon any sub-
ject, however well established, will be tolerated by a court of justice
if found to contravene moral justice, or natural right, or those prin-
ciples of the common law that are thence derived." 8

1 De Republica, n, 22, 33. 2 Digest, i, 1, De Justitia, et Jure, 10.

* E. J. Phelps, Orations and Essays, 103. Cf. Bradford Corporation v. Ferrard,
Law Reports, 2 Chancery Div. 655, 661.

HISTORY OF COMMON LAW 333

To courts under a government less free than England these words
might not apply. Custom and authority may, at many points, stand
up against a Naturrecht and maintain their ground. But these
points everywhere become fewer, as civilization advances. The
"general conscience of civilized men," to quote from an American
scholar who has done much from the scientific side to put our juris-
prudence on a solid footing, "or, in other words, positive morality,
ought to be, and, in fact, ultimately and in the long run is, the
paramount predominating political force in the civilized world,
and ... it is this that makes civilization possible." 1

The applications of these principles of moral justice and natural
right by legal rules must, however, vary from land to land and age to
age. One family, one tribe, one village community, one folk-mote,
one medieval city, will follow one line of action, and another another.

Here, as a tribe grows into a people and some sort of judicial
establishment is set up, a certain mode of procedure is adopted,
leading to a certain doctrine of substantive law; and there the
choice of another mode for the same class of controversies may
end in establishing a different right.

The causes of human action indicated by history, when fully
ascertained, are seldom those that would have been reasoned out
by philosophers to whom that history was unknown.

Law is the voice of order: human law of order in organized society.
But who utters the voice? How often does it speak? How are its
words recorded? Do they order the doings of to-day or of to-mor-
row ? Are they, once uttered, beyond recall? And if to be recalled,
what power shall do it?

The history of science calls for an answer to these questions, -
calls for it, and gives it.

The people of a race, or of a land, are in the foundation of things its
only lawgiver. At first they speak by silence. The relations with
each other which they find it convenient to maintain, defined only
by the usage of daily life; slowly though surely changing with their
growth or their decay; — these in their settled order each genera-
tion in each land, without caring to inquire whether they come
from a political sovereign, receives as its unchallenged birthright,
its royal inheritance: these make it and keep it a nation.

I speak of substantive law. The people make the rules for their own
behavior. They are content that courts, when courts arise, should
regulate theirs.

This law is for long ages but a matter of oral tradition. The priests
may declare it. The priests may come to have their sacred books in
which it may be or may be said to be enrolled. But they are not for
the people to look into. It is not until education passes from the

1 George H. Smith, A Critical History of Modern English Jurisprudence, 75.

334 HISTORY OF COMMON LAW

priests, everywhere its first possessors, to become the possession of
the community, that law can or need take written form.

As the Northern tribes that destroyed the Roman Empire, when
they learned letters from those whom they conquered, set up their
codes by the side of the Theodosian and the Justinian, so with every
people a time comes when unwritten law takes written form. It is an
evil time if it comes too quickly. It is an evil change if it is pressed
too far.

The force of law is the reverence of the people. Man is born to
reverence for his elders and for the elder time. He wastes his patri-
mony if he does not cherish with this sentiment the laws and institu-
tions which have come to him by descent. He may some day build
better. But nothing will be better which does not rest, in part, and in
no small part, on the old foundations.

A common law is obeyed by the mass of the people instinctively
and unquestioningly. They may challenge the right of a monarch or
a legislative assembly to impose new rules upon them. They may
endeavor to elude their force, or even resist them. But as Maine
has observed, "the actual constraint which is required to secure
conformity with usage is inconceivably small." 1 We follow usage
in law, as we do in dress, without asking for any other reason than
the practice of our neighbors.

This may be called mere prejudice, but popular prejudices are
often the best ally of justice. England has grown great and lasted
long because she trusts them so much. As Burke has put it in speak-
ing for his countrymen: "We cherish them because they are pre-
judices; and the longer they have lasted, and the more generally they
have prevailed, the more we cherish them. We are afraid to put
men to live and trade each on his own private stock of reason; because
we suspect that this stock in each man is small, and that the individ-
uals would do better to avail themselves of the general bank and
capital of nations and of ages." 2

Japan has wisely bowed to this universal rule in modeling her con-
stitutional government. It had been the basis of the empire that it
should be governed by a line of emperors unbroken for ages eternal.
They made no such pretense, as the Romans did, that the people
were the ultimate source of authority, but had committed it all to
the emperor by some royal law.8 They received their constitution
in 1889 as his free though irrevocable gift. Its essential character
was, by his will, expressed once for all to be immutable, but minor
modifications he could suggest from time to time to the Imperial
Diet.4

1 Early History of Institutions, 392.

2 Reflections on the Revolution in France, Burke's Works, Bohn's ed. n, 359.
8 Dig. I, 4, De Constitutionibus Principium, 1.

4 Constitution of Japan, arts, i, rv, v, vi, LXXHI.

HISTORY OF COMMON LAW 335

Customary law, even though it may come to be embodied in a
code, has no quality of permanence until it has become the law of
the land. That of the Jews has shown that if once attached to a
land, it may survive a separation from it. But the customs and codes
of the dark ages, binding only a part of the persons occupying the
soil, were in their nature temporary and evanescent, fit only for the
migratory hordes to which they appertained.

Each particular land must have its own peculiar law, made by and
for its own peculiar people, and when it takes on written shape it
must reflect the genius of this people, or it will quickly perish from
the earth. In the words of one of the leaders of the American Bar,
"the work of declaring or making law, whether committed to the
hands of a judge, a legislature, or a codifier, is substantially the
same. It is the task of applying the national standard or ideal of
justice to human affairs." *

The denial of this was one of the great defects of Bentham's
philosophy of legislation. He belonged to a race which had little
faith in large generalizations as to what is for the good of organized
society, and was content to settle each question as it might arise,
crossing no bridges until it came to them. He did not share in the
prevailing convictions of his own countrymen. Of those of Americans
he knew still less. Yet he was insensible to the folly of his formal
offer to the President of the United States to draw up a complete
code of laws for the United States and also for the several states,
including, as he wrote, " a succedaneum to the mass of foreign law,
the yoke of which in the wordless as well as boundless and shape-
less shape of common, alias unwritten law, remains still about your
necks." 2

A country may or may not find it expedient to ordain or to ask
for a written constitution of political government. Social conditions
may render it inexpedient. Long usage may supply its place.

But so far as concerns government in the daily affairs of private
life and the administration of justice between man and man in their
relations to each other, a written code will everywhere, in time, sup-
plant the common law on certain, and these the greatest, subjects,
as the first evidence to which to appeal in any controversy as to the
rule of conduct which the state may have prescribed. This will not be
because the code has replaced the common law. It will be because
it has expressed the common law. Its proper work is to arrange
rather than to change, and where there have been local differences,
to choose between them and take the ground approved by the
majority of the people. To do more than this, in any matter of sub-
stance, is to do too much. It is to disregard the inevitable rule that

1 James C. Carter, The Proposed Codification of our Common Law, 40.

2 Bentham, Papers relative to Codification, etc., 1.

336 HISTORY OF COMMON LAW

sustained progress can come only by the slow, lingering, hesitating
course of evolution.

" Non turn denique incipit lex esse, quum scripta est, sed turn quum
orta est." These words of Cicero,1 used with reference to what of
law is in its nature divine, are not less applicable to a national
common law. To codify it is not to create it. To codify it is not or
ought not to be to give up the aid to an understanding of its mean-
ing furnished by judicial decisions of former times. California
was the first American state to adopt a civil code, but her courts, in
working under it, have always resorted freely to the preceding law
out of which it grew. It was indeed urged by her foremost jurist,
a supporter of codification, that they should go farther and as-
sume as a kind of legal fiction that the preceding law covered every
case that could arise, and that the code was designed to make no
changes in it which were not manifest on the face of the new pro-
visions.2

The Romans based their philosophy of law on a false foundation.
They assumed a golden age in the far past when all nations were
governed by the same great rules. Their jus gentium was of all myths
the most misleading.

To view the normal place of law as the common and identical
possession of every people, and hope for world-uniformity when a
golden age of pristine innocence shall return, is to misconceive the
essential nature of things. All progress is away from uniformity. If
history has taught us anything, it is, to use the terms of Spencer,
that there is "an ever increasing heterogeneity in the governmental
appliances of all nations"; 1 that all "organic progress consists in a
change from the homogeneous to the heterogeneous"; and that this
"is so, because each change is followed by many changes." 3

Not only, the world has learned, "is all progress from the homo-
geneous to the heterogeneous; but at the same time it is from the
indefinite to the definite." 4

So will theuncollected and unclassified wisdom of the people, which
we see gradually take on the shape of their common law, at another
stage of their history pass from the unwritten into the written, and
finally crystallize into formal codes. But they will be national codes
and nothing more. No two peoples can see things from the same
viewpoint. Nor can any two generations of the same people see
things from the same viewpoint.

Constitutions, if drawn as constitutions should be, may be, in
theory at least, immutable. That of the United States, so difficult
has been made the process of amendment, and so happily brief is it in

1 De Legibus, n, 4, 10.

2 James C. Carter, The Provinces of the Written and the Unwritten Law, 24.

3 Illustrations of Universal Progress, Appleton's ed., 3, 15, 57.

4 Ibid. 396.

HISTORY OF COMMON LAW 337

terms, has never been changed and will never be changed except by
reason of some real emergency.

But codes of private law must draw the elements of growth or of
decay from the life of the people whom they serve. It has been said
that the difference between the Roman and the modern idea of the
basis and fundamental nature of law is that between fixity and move-
ment, — between the law as necessary, and the law as always subject
to revision.1 No doubt the Romans did think it a social necessity that
there should be some form of institutional authority, the expressed
will of which was the final rule of social action. But it is difficult to
maintain that they accorded any special fixity to its expression. As
it came from the people it could be changed by the people. Long
usage if extending over " plurimos annos" added new laws, "velut
tacita civium conventio." 2 It gave, and it took away. Even legislat-
ive statutes were frankly declared to be subject to tacit abrogation
by sinking into desuetude.3

No attempt to transmute the common law of a people into code
form can be worthily made which fails to discriminate between what
of its provisions are in their nature permanent and general, and what
of them were the product of temporary and local circumstances.
Those of the latter kind may have been preserved in force through
centuries, and nevertheless they may be essentially unjust and of the
nature of class legislation in opposition to the public welfare.

Customary law, therefore, cannot be reduced to a written form
which shall have the elements of perpetuity unless those who under-
take the task have the true interests of the people at heart. They
must be able so far to dissociate themselves from the influence of
present conditions as to look at things from a far standpoint. They
must be uncontrolled by motives of a selfish character, personal to
themselves. I do not speak of those who put results in words or are
the ones whose names may authenticate charters or codes. Magna
Charta was not the work of the king who gave it. It would not have
formed the enduring corner-stone of English and American liberty
had the barons who wrung it from him exacted only what benefited
themselves.

Had France, before the days of 1789, made full codes for those of
her provinces which were subject to unwritten law, she would have
perpetuated so much that ought never to have existed, and shown so
plainly to all the burdens unfairly thrown upon a part, that the
Revolution would have come all too soon.

The term commune jus was used at the close of the fourth century
of our era as if it were a familiar one to denote, apparently, rules and

1 A. H. Lloyd, in Am.. Hist. Review, ix, 775.

2 Dig. i, 3, De Legibus, Senatusque Consultis et Lonqa Consuetudine, 35.

3 Ibid. 32, § 1. Aulus Gellius, Noctes Atticae, xn, 13.

338 HISTORY OF COMMON LAW

laws which were common to all the inhabitants of a country, irre-
spective of their particular nationality.1 Subsequently the canonists
employed it, and also lex communis, to denote those rules of the
church universal which were generally in force, as distinguished
from special privileges given by popes, or local rules and customs
of a particular church or ecclesiastical establishment.2

During the Dark Ages the term lex communis is found in the Frank-
ish codes. The first instance of which I am aware dates back to about
the beginning of the ninth century.

Charlemagne had made laws, as king of both Franks and Lombards,
most of which bound his subjects of all nationalities.3 Pepin, not long
afterwards, in his statutes as King of Italy, after providing on certain
subjects different rules for Romans and Lombards, declared that
" De ceteris vero causis communi lege vivant, quam Dominus Karolus,
excellentissimus Rex Francorum atque Langobardorum in edictum ad-
junxit." * The term was used in the same sense by one of the older
English writers, who referring to the unification of the laws of Eng-
land by Edward the Confessor, in the eleventh century, to replace the
different laws of the Angles, Danes, and Mercians, says: "Ex tribus
his legib'us S. Edwardus tertius (ante conquestum) unam legem com-
munam edidit." 5

While, therefore, the thought which is expressed in the modern
mind by "common law" is that of universality, and territoriality,
as the law of the land,8 originally it was rather that of the general
law of the church universal, or of a personal law common to several
peoples subject to the same sovereign.

What force attaches to such a common law of the land?

Rome, in the later stages of her institutional development, made
this depend largely on whether it had acquired some kind of govern-
mental sanction. When, said Ulpian, one relies on a custom of a city
or a province, the first thing to be done is to ask if it has ever been
confirmed by some judgment in a contested lawsuit.7 Romans loved
form and formal expression. A judgment gave this, although not as
fully as an act of legislation.

France, from an early period, required legislative approval. Her
common law, it may be said, as respects the French provinces subject
to the droit non ecrit, differed radically from that of England in two
points. It was not fully recognized by the courts until it had been

1 Cod. Theodos., n, I, De Jurisdictione et ubi quis Conveniri Debeat, 10; xiv,
v, de Haereticis, 23.

Pollock & Maitland, History of the Law of the English People, i, 115, 176.

Some were confined to the Lombards. See Heinneccius, Corpus Juris Ger-
manici, 1153, 1166.

Ibid. 1188.

Spellman, Glossary, Lex.

Hale, History of the Common Law, chap. 3, p. 55.

Dig. i. 3, De Legibus, Senatusque Considtis et Longa Consuetudine, 34.

HISTORY OF COMMON LAW 339

reduced to writing and officially promulgated by the government,
and it was not subject to extension by analogy through mere judicial
construction.1

If there was a point as to which custom had provided no rule, but
the Roman law did, the judges, from the time when the Corpus Juris
Civilis first appeared, could resort to it, but only because it was a high
form of written reason.2

After the adoption of the Code Napoleon they were given a freer
hand. In framing the decrees by which it was to be promulgated, the
Council of State considered this question at length. It was urged that,
no civil code could provide for every conjunction of circumstances
and that the ancient local laws should remain in force as to matters
not otherwise expressly regulated.

No, replied M. Bigot-Preameneu. This would perpetuate the con-
fusion which we seek to end. We should have judgments of the Court
of Cassation affirming one rule, in a case coming from a province
formerly under the droit ecrit, and a contrary rule in a case coming
from a province formerly under the droit non ecrit. The Roman law
will always and everywhere have the authority of written reason, but
its use will be all the greater if we can resort to its equitable maxims
without being hampered by every subtlety and error which may have
attached itself to them.

These views prevailed and the Council agreed that while an infrac-
tion of the previous law should not necessarily constitute a ground
of legal error, judges might, if they thought proper, take the prin-
ciples of that law as a guide in the determination of causes.3

The name common law (droit commuri) in France, it may be ob-
served, has a somewhat different signification from that which
attaches to it in most countries. It is used as importing the law, what-
ever may be its character, common to a whole people or a land, as
distinguished from a law of partial application, and also the law
recognized by all peoples in all lands — the jus gentium of the
Romans.4

Austin, to maintain his theory that law is a mere act of force
proceeding from the sovereignty of the state, expressive of its will,
and to be obeyed because of its superior power, has found it necessary
to assert that custom, however ancient, never becomes law until the
judges, acting for the government, in the decision of some case,
have declared it to be such.5

As has been seen, there is some Roman authority for this position,

1 Merlin, Repertoire de Jurisprudence, Autoritcs, n, Coutume, u.

2 Merlin, Repertoire de Jurisprudence, Autorites, n, Coutume, in; Montesquieu,
De Vesprit des Lois, liv. xxviu, chap. xii.

3 Merlin, Ripertoire de Jurisprudence, Raison ccrite.

4 Merlin, R ' pertoire de Jurisprudence, Droit; Ortolan, Diplomatic de la Mer,
4th ed., 455, 456.

5 Lectures on Jurisprudence, i, 104; n, 537, 558, 581.

340 HISTORY OF COMMON LAW

though quite as much against it. It is, however, not easy to under
stand how Austin's general views have been received with so much
favor by English jurists. He refuses to see that the soul of law is not
force, but right. He roundly asserts that "in truth, law is itself the
standard of justice," though admitting that it is a standard subject
to correction by some higher standard, if there be such, set up by the
sovereign elsewhere.1

Law in human society is made for men. It is made for beings having
— considered as a mass — certain general notions of moral justice.
These notions are the unwritten constitutions, no positive law
violating which can long endure.

The same thing is true of custom and of judicial decisions support-
ing custom. If they are contrary to moral justice, the day will come
when they will be abrogated, if neither by legislation nor by disuse,
then by the courts themselves.

That customs may have received judicial sanction is but uncertain
evidence that they deserved it. Bentham, not wholly without cause,
said of the English common law that it based men's dearest interests
"on some random decision, or string of frequently contradictory
decisions, pronounced in this or that barbarous age. almost always
without any intelligible reason, under the impulse of some private and
sinister interest, perceptible or not perceptible, without thought or
possibility of thought, of any such circumstances or exigencies, as
those of the people, by whom the country here in question is inhab-
ited at the present time: pronounced by men, who, if disposition and
inclination depend in any degree on private interest, were as far from
being willing, as from being, in respect of intelligence, able, to render
their decisions conformable to the interests, even of the people by
whose disputes those decisions were called for, and whose situation
alone it was possible that, in the framing of those decisions, they
should have in view: — even of the people of those several past ages,
— not to speak of those of the present age, or of ages yet to come." 2
If antiquated morality and antiquated law do not disappear
together, one does not long survive the other. As Sir Frederick
Pollock has remarked, " Legal justice aims at realizing moral justice
within its range, and its strength largely consists in the general feeling
that this is so. Were the legal formulation of right permanently
estranged from the moral judgment of good citizens, the state would
be divided against itself." 3

No people can adhere to a common law which is not in the habit
of bowing to judicial precedent. And on the other hand, no people
can adhere to a code without putting it above the reach of inter-
pretation by precedent. Interpreted it often must be, but the courts

1 Lectures on Jurisprudence, I, 223.

2 Papers on Codification, 14, 31. 3 First Book of Jurisprudence, 31.

HISTORY OF COMMON LAW 341

must be free in each case as it arises to interpret it each for itself. A
distinguished lawyer of wide experience in a line of practice requiring
considerable familiarity with the laws of France, at a public hearing
in 1881, before a legislative committee in New York, said of the
Code Napoleon, that he would undertake, if the meaning of anj-
important sections of it were questioned, to furnish decisions on both
sides, and one as authoritative as another, since the rulings of the
Court of Cassation bound no inferior tribunal.

As Sir Henry Maine has pointed out, with his accustomed precision
of statement, one of the material differences between the legal systems
of England and America and those of other countries is that the
English common law is content with no conclusions from imaginary
facts.1 It demands to know what has been adjudged to be the law on
established facts. Anything short of this is an illustration, not a rule.

A legislative fiat rests on an imaginary state of things. A judicial
precedent rests on an actual state of things.

The actual state of things in any controversy between man and
man may so far differ from any state of things previously known that
no rule of law can be found which exactly applies to it. In such case,
the courts make use of the old rules as far as they can. This gives
a twist, perhaps, to the old rules, which thereafter are bent in a new
direction. To quote from the author cited, " Almost everybody can
observe that, when new circumstances arise, we use our old ideas to
bring them home to us; it is only afterwards, and sometimes long
afterwards, that our ideas are found to have changed. An English
court of justice is in great part an engine for working out this process.
New combinations of circumstances are constantly arising, but in the
first instance they are exclusively interpreted according to old
legal ideas. A little later lawyers admit that the old ideas are not
quite what they were before the new circumstances arose." 2

This change, such as it is, will naturally be in the direction of con-
formity to the national standards of justice and civil policy existing
at the time of the decision. The judge cannot shut his eyes to the his
tory and spirit of the day and time in which and for which he speaks.

The history of the Anglo-American common law is very far from
being a mere history of judicial precedent. It is rather a history of
public custom. No collection of precedents could ever be answerable
to the wants of a civilized community. The only collection to satisfy
them must be one of the principles of justice and incidents of history
from which those precedents were derived. It was justly said, in
1836, in its report to the legislature of Massachusetts by the very
able commission which had been appointed to consider the subject
of codification, that "of the innumerable questions, which arise in

1 Early History of Institutions, 47.

2 Ibid. 229. 3 See Holmes, The Common Law, 35.

342 HISTORY OF COMMON LAW

any one age, and admit of forensic controversy and doubt, probably
not one in a hundred, perhaps it would be more correct to say not
one in a thousand, ever comes before a court of justice to be there
finally settled by adjudication."

If a disputed question of private right is submitted to counsel to
be determined by the rules of common law (and I mean the common
law supplemented, as it always is and must be in a civilized people,
by the rules of equity), he considers first whether there is any one
of them which obviously and directly applies to it. If not, he asks
if there be not one which by analogy governs. If there be none such,
he looks to the fundamental principles of natural justice, and there
he cannot fail, or if he does it is because he fails in his selection. The
principles are established and they are decisive. Ubi jus, ibi remedium.

The common law of a people will develop on two lines, that of
their relation to the state, and that of their relation to each other.

The former naturally comes first. In its infancy a nation gropes
after large things only. It thinks, when it begins to think, in poetry.
It is ready to idealize whatever is the representative of sovereign
power. Then, if it finds his hand too heavy, it seeks for charters and
guaranties. These, for a people that is strong and feels its power, are
the conditions of its support. They proceed from what already has
begun to be a custom, and new customs are built upon their founda-
tions. It is simply adherence to law and to the man who personifies it.

The history of civil liberty is the first and best part of the history
of common law. But it is a short chapter.

Liberty soon asks for itself recognition in some written document
to which man can appeal in time of public stress and conflict.

On the other hand, no written document, under any conditions
of human society yet developed, can adequately provide for every
future conflict of private interests.

There is a field for the professed law-makers, be they king or repre-
sentative assembly, and there is a field for the unprofessed law-
makers, the people.

Legislative power in early days seems to have been mainly exerted
to serve the purpose of authentication. It was not looked to for
innovation, but for preservation.1 The legislative hall was a record-
ing office.

And it must still be regarded as the great function of a legislature
to regulate the dealings of the state with individuals and with other
states. When it passes beyond this and seeks to regulate details
of conduct between man and man, it enters upon dangerous ground.
It is making law for those who can generally make it better, have
generally made it better, for themselves.

Legislation as to succession to the estates of the dead is justified
1 See Maine, Early History of Institutions, 26.

HISTORY OF COMMON LAW 343

because they belong of right to nobody. When the hand that gath-
ered or preserved fell lifeless, it was for the state to send what no
longer was in the rightful grasp of any where it would.

Judicial procedure also is a matter proper for legislation. It is the
means by which the power of the state is exerted to preserve the
order of the state and the rights of its inhabitants.

But these rights, unless they rest on something better than statutes,
are on no assured foundation. Rights are inviolate. Statutes may
be passed to-day and repealed to-morrow.

Rights also, founded on a common law, contain a principle of
growth. They may increase, though, so far as they are founded on the
principle of equality of opportunity, they can never be permanently
diminished.

To define them in statutory words is to circumscribe them. It tends
to prolong inequalities of condition. The freer, therefore, a people
may be, the longer they will be apt to cling to unwritten law.

There is, however, one tendency of modern times which occasion-
ally exerts great force in an opposite direction. It is that towards the
aggregation of nationalities, to the strength that comes from union.
In the course of such great movements the maintenance and de-
velopment of a national common law may be checked by codification
proceeding from reasons of political policy. The Gesetzbuch of Fred-
erick the Great was an early example of this. The German Imperial
Civil Code of 1900 is in large part due to the same cause. It helps
to unify a new empire. Those who framed it, however, did not under-
rate the inevitable reluctance of the particular states to yield more
than could justly be claimed as necessary. The " law of introduction "
is so full of exceptions in their favor that more almost seems to be
reserved than is taken away.1

None of the early codes or collections of common law are codes in
the modern sense.

When the first beginnings are made toward stating it in an author-
itative shape, it is put forward as a mere bundle of propositions,
reached apparently by no scientific process, and arranged certainly
in ro scientific way. It will be full as to some points; meagre or
silent as to the rest. So far as it has arrangement or order, it may
be that of bare chronology. To learn what it is, we must look to the
history of the people, and trace its halting and devious steps from
this level to that, now ascending and now perhaps sinking to a point
from which it can never rise. These things once known, we can
begin to construct a philosophy to state their ultimate results. As
in everything else, to quote the words of Froude, " we must have the
real thing, before we can have a science of a thing."

» See Sec. 1, Art. 3, and Sec. 3.

2 Thomas Carlyle, Life in London, n, 126.

344 HISTORY OF COMMON LAW

And yet what is more scientific than the theory and practice of
the law of evolution? In that this has been followed, the history of
the common law shows that its advance has been scientific. It has
been thoroughly unscientific in this, that it has never been system-
atically arranged and set in order. Governments and peoples have
not stopped to analyze their common law. They have practiced it
rather than studied it.

Science has, strictly speaking, nothing to do with productive
application. It inquires for the sake of knowledge. Science teaches
man to know: art teaches him to act. Art leans on science; but
science is independent of art.

Our business in this Congress of Arts and Science is, I take it, to
look at a lawyer's art so far only as it gathers strength and form
from science, and finds its guide in jurisprudence.

But while jurisprudence is independent of the art of legal practice,
there are other arts of which she is not independent, and from which
she derives nourishment and support.

History is a tale that is told. It is an art to tell it well. Science
may supply the master-keys to unlock its secret places, but what she
discovers is fruitless unless so stated and illustrated as to catch the
ear and strike the mind.

Law precedes letters, but the history of literature as well as of lan-
guage must be far advanced before that of law can be really begun.

One does not rise from the study of the first book of the Pandects,
which takes up the origin of Roman law, with the feeling that any
full and comprehensive treatment of the subject has been given.
The main facts are there, but they are cold and lifeless. This is not
simply because the Pandects are an array of disjecta membra, into
which no one human being has breathed the breath of life — of
his life. It is because the Roman jurists had not learned the art
of historical composition as applied to explaining the development of
legal conceptions. There was no Grotius, no Savigny, no Maine, to
detect the minor forces of jurisprudence and marshal them in line.

The literary style and spirit of men like these is hardly less import-
ant than their knowledge of the subjects of which they treat. It is
the artist only who can portray with that sense of proportion and
symmetry so essential to one who would set any system of things
before other men in a way to be felt and remembered.

The historian of the common law of any land must be artist and
lawyer, both.

A lawyer only can differentiate the legal from the social currents
in the life of a nation. A scholarly antiquary — a Bishop Stubbs —
may be more competent to explore the sources, and set out materials
for the work. But the task of discriminating and rearranging can only
be done satisfactorily by one who is by long practice familiar with

HISTORY OF COMMON LAW 345

the law of his own land in his own day. He knows best how to choose
between authorities and reason backwards from new to old. As
Lord Bacon has put it: " Exempla, quae ad leges spectant non placet
ab historicis peti, sed ab actis publicis et traditionibus diligentioribus.
Versatur enim infelicitas quaedam inter historicos vel optimos, ut leg-
ibus et actis judicialibus non satis immorentur." 1

The history of the common law is continuously connected, by the
necessities of judicial procedure and through the interpretation of
statutes and contracts, with that of the physical sciences.

Rights are worthless unless there are courts to protect them.
Courts proceed by rule. One rule of common use is that judges take
notice, without proof, of whatever so belongs to universal know-
ledge that it may fairly be assumed to be familiar to all. This doc-
trine, styled by English law " judicial notice," puts at the service
of courts of common law, without proof, all that human science has
established beyond a question. It does not, indeed, ask how —
through what scientific processes — results have been attained.
It accepts them on faith. But it uses them in a scientific way, for
scientific purposes.

The Supreme Court of the United States was called upon some
years ago to determine whether a patent for a certain invention
could be sustained. It was for a method of preserving meat in a
receptacle inclosed by a refrigerating chamber. Was this a new de-
vice? If not, the patent had been erroneously granted. The judges,
without proof, decided that it was simply an application to a new
purpose of the principle of the common ice-cream freezer.2

A statute contains a term of art or is based on a scientific theory.
It is then for the courts to interpret and apply these on the principles
of the common law.

A few years since an American legislature enacted that a certain
public officer should inspect all peach-orchards, and if he found any
trees affected by the disease known as the " yellows " should destroy
them. Was this or was it not to give to one man arbitrary authority
over another's property? It was, unless the science of agriculture
had established the danger of infection from trees seized by that
disease, and the history of agricultural science thus became the
handmaid of the law.3

So contract rights expand with the expansion of physical science.

An owner of a colliery in England in the seventeenth century
acquired a grant of a right of way to haul his coal across the land of
another to the highway. Two centuries later came the invention of
the steam railway. He built one, and the courts supported his right

1 De Augmenfis Scientiarum, vm, in, Aphorismus, xxix.

2 Brown v. Piper, 91 U. S. Reports, 37.

3 State v. Main, 69 Connecticut Reports, 123, 136.

346 HISTORY OF COMMON LAW

to use the privilege, granted so long before, in this new way. General
words were to be interpreted in view of what, for the time being, in any
age, under then existing scientific conditions and possibilities, was
reasonably necessary to give them full effect.1

It is probable that in following the course of national common law
too much stress has been laid in the past on climatic conditions.
Montesquieu, for example, attributes to the moderate temperature
of Japan what was in his time the severity of its criminal law.2 A
simpler reason may be found in the military character impressed
upon it by feudal institutions, and in the prevailing want of educa-
tion there in the eighteenth century.

The growth of a common law has been well illustrated by judicial
extensions of the rules of evidence.

That of England shut out testimony not given under oath by one
who believed in the authority of the Bible. But when Englishmen
gained power in India and abused it, English judges allowed the
natives who might ask for redress at law to verify their story by
touching the foot of a Gentoo priest.3

That of England, again, shut out what the courts called hearsay.
If a fact was to be proved, let the man who saw or heard be pro-
duced, and not some one to whom he had told it, or some paper on
which he had written it down. A suit was brought in an American
court against the endorser of a note. It was vital to prove that a
demand for payment had been made upon the maker. As evidence of
this an entry by a notary public in his books was offered. The notary
was dead. Were he alive, it was certain that his testimony would
have been indispensable. Did his death give a new force to the
entry which he had made? The courts admitted the evidence, and
the ancient rule that none could be admitted that was not the best
of which the nature of the thing was capable was thus so modified
in practice as to amount to this: that if the best evidence which
the party can command is offered, it should be received, if it be in
a fair degree probative in its natural effect.4

Codification of anything more than certain parts of the common
law has been looked upon with general disfavor by Englishmen and
Americans.

They fear that more would be lost than gained. In the United
States it is felt that codification would be closely followed by pro-
positions of amendments and additions, and that their legislatures
too often act hastily and without deliberate consideration.

Americans have also still stronger reasons, personal to themselves.

1 Dand v. Kingscote, 6 Meeson and Welsby's Reports, 197.

2 De V Esprit des Lois, liv. xiv, chap. xv.

3 Omychund v. Barker, Willes Reports, 550.

4 Nicholls v. Webb, 8 Wheaton's Reports, 326; Thayer, Preliminary Treatise on
Evidence at the Common Law, 507; Plumb v. Curtis, 66 Conn. 154, 166.

HISTORY OF COMMON LAW 347

An unwritten common law now exists in most of the states, which is
substantially the same. For any of them to codify it is to invite the
establishment of local differences. A common law is of the highest
political importance to those who have a common country.

But more than this, it goes naturally with a rigid constitution of
political government. Law clothes a people like a garment, and as
they wax or wane in power or wealth and diversity of interests, so
must it accommodate itself in some measure to their changing form.
A written constitution may be expanded by construction, but only
within narrow limits and under unusual stress of circumstance. The
law which is administered under it must therefore be the more
readily capable of extension to the varying conditions of the times.
This under a common law is attained with ease; under a code with
difficulty and delay. Under a common law it comes from the people
and the courts who are always at work. Under a code, primarily
from a legislature, slow moving if it does its office well, and seldom
in session: from the people not at all; from the courts with a timid
and hesitating hand.

Looking more broadly at the relations of a common law to political
organization, no treatment of the subject under consideration would
be adequate which did not look beyond the circumstances and
necessities of any one nation on the earth to those of all.

England and America recognize public international law as a part
of their common law. The constitution of the United States refers
to it as a form of law of acknowledged authority.2 So far as their
courts recognize any principles of private international law, these also
become a part of their common law.

While it may have been less explicitly announced in the constitu-
tional or judicial documents of other countries, the world is coming
to the same position; and where no statute lays down a different
rule, the people can rely on the protection which the law of nations
and the comity of nations extend to all whose acts are called in
question in a court of justice.

There is, then, besides the common law for regulating the dealings
of individuals, or between individuals and the state, a law for regu-
lating the dealings of nations and of one nation with the citizens of
another. Here, indeed, we come back in principle to the jus gentium
of the Romans, in so far as it professes to speak what all nations
admit to be just and true — all nations, for we no longer have a
Christendom on one side, and only barbarians on the other.

As the common law of and for a particular people is made by that
people from day to day as a natural growth of social life, so the

1 See paper on the " Part taken by Courts of Justice in the Development of
International Law," Report of Nineteenth Conference of the International Law
Association, 35; Yale Law Journal, x, 1; American Law Review, xxxv, 214.

- Art. i, sec. 8; In re Martin, Law Reports, Appeal Cases, 1900 (Probate), 211.

348 HISTORY OF COMMON LAW

international law of all peoples is made by all peoples from day to
day as a natural outgrowth of international relations in human
society.

There must be something of a governmental character behind a
law, to give it form and stamp it with authority. It may have
authority from mere popular acceptance, but this stamp is needed
to give assurance that the people have accepted it. In every civilized
nation there is some form of judicial establishment to fulfill this
office. It does not make law. It does not, at least, own that it makes
it. But it declares what is law and what is not.

The last year of the last century crowned its achievements by
providing such a judicial establishment for all nations. That common
law of all, that jus gentium, which is also a jus inter gentes, has now
a spokesman, and a record office.

Elsewhere in the series of Congresses of which this Exposition
has been made the occasion, the institution of The Hague Tribunal,
and the series of treaties providing for the reference to it of many
of the minor controversies between nations, which have since been
negotiated, will have fitting mention. . It is enough here to call at-
tention to it as the last, best outgrowth of human society at large,
in its progress in the arts of life — the. true arts of true living.

It looks to nothing less than the gradual formation of a common
law on one subject of common concern for all nations, — a world-
law.1

The government of the Netherlands has also, of resent years, been
doing a great work, which must have broad results, toward ordering
the disposition before the ordinary tribunals of private controversies
arising out of a conflict between the laws of one country and those
of another.

I have spoken of the history of every nation as the key to the
nature and meaning of its law.

The field of comparative law is a wilderness to one who does not
study it in the light of the history of the different nations. That
history forbids us to hope for ultimate uniformity. It encourages us
to hope for ultimate agreement on rules by which a conflict of laws
operating on personal and private rights may be in most cases
avoided. This will be simply by the determination of which of
several rules shall govern under certain circumstances.

The recent conferences on this subject at The Hague, beginning
with that of 1893 and ending with that of 1904, have approached

1 The work of this court will be effectively supplemented by the princely
foundation for the Nobel Institute for the Study of International Law, in Norway.
This was formally opened at Christiania on February 12, 1904, and consists of
fifteen jurists forming a consultative tribunal, ready to give advice in matters
of international relation.

HISTORY OF COMMON LAW 349

this task in the right way. They have sought to lay down one rule of
action for all Europe only so far as this, — that when controversies
depend for their determination on whether the law of this or of that
country shall be applied, the decision as to the applicable law shall
be made according to a certain and definite principle of selection.
The laws all remain different. They must remain different. It is only
the choice between them in each case for which the conventions
make provision.

It is not too much to hope that they will receive, besides the
ratifications of all the governments which have participated in the
conferences, the adhesion of others, in other continents.

The private law as well as the public law of the world will thus,
by the good offices of one of the lesser powers, rise toward a position
which, once the dream of poets, may before this century closes be in
great part achieved.1

1 See the description of the work of The Hague Conferences for the advance-
ment of Private International Law, in the Official Report of the Universal Congress
of Lawyers and Jurists, held at the St. Louis Exposition, September 28-30, 1904
(pp. 117-177; 332-378).

THE PROBLEMS OF TO-DAY FOR THE HISTORY OF THE

COMMON LAW

BY JOHN HENRY WIGMORE

[John Henry Wigmore, Professor in the Law School of the Northwestern Univer-
sity, Chicago, and Dean of the Law Faculty, b. March 4, 1863, San Francisco,
California. A.B. 1883; LL.B. 1887; A.M. 1887; Professor of Anglo-American
Law in Fukuzawa University, Tokyo, Japan, 1889-92; Professor in North-
western University, 1893; member of Asiatic Society of Japan, American Bar
Association, American Political Science Association. Author of Australian
Ballot System; Notes on Land Tenure and Local Institutions in Old Japan;
Treatise on Evidence; etc.]

A chief object in the study of history is to learn the lessons which
it may teach for the future. That is a sufficient excuse for consider-
ing the present subject from the practical point of view. " What
has been done about it?" is an inquiry which will here serve to lead
to the further one, "What is to be done about it?" In the light of
an official interpretation vouchsafed by one of the Vice-Presiderits
of this Congress, the inquiries relevant to the problems of to-day for
the History of the Common Law may be phrased as follows:

I. What are the chief historical facts or influences still left unknown
or obscure in our law and the efforts anywhere being made for the eluci-
dation of them by research?

II. What are the methods by which further investigation of our legal
history can be encouraged, and its hitherto attained results be made
broadly known and influential in the legal profession?

III. What are its chief lessons and warnings for the future tendencies
of our legal history?

I. Vangerow said in his Pandecten, speaking of the early history
of procedure in Roman law: "All books written on this subject
before the year 1820 are useless"; because in that year appeared the
first edition of the text of Gaius's Institutes, newly discovered to the
world in 1816 by Niebuhr. In the same way, it might almost be
said, of the historical development of English private law, that all
books written before 1881 may be ignored; because in that year
begins the triple lustrum marked by Mr. Justice Holmes 's The Common
Law, Sir James Stephen's History of the Criminal Law, the Selden
Society's initial publications, Professor Ames's essays on the History
of Civil Actions, and Sir Frederick Pollock's and Professor Maitland's
treatise on the history of English law before the time of Edward I.
Up to that period, to be sure, much had already been done to clear
the way. The surrounding regions had been thoroughly opened;
that of constitutional history, by Stubbs, Gneist, and many others;

THE PROBLEMS OF TO-DAY 351

that of economic landholding conditions, by Seebohm and others;
that of commercial conditions, by Ashley, Cunningham, Gross, and
others. For private law, too, the work of Palgrave, Bigelow, Young,
and a few others had revealed to us that the older lines of Coke,
Blackstone, Spence, Reeves, Finlayson, and Crabbe would have to
be entirely discarded for the earlier part of the law. But Mr. Justice
Holmes 's stimulating book on the Common Law now arrived and
pointed out in detail the field of necessary research for later times;
in fact, it was probably this book which really created whatever now
exists at large in the older generation at the bar of taste and appre-
ciation for the study of the history of our law. Sir James Stephen's
work, shortly ensuing, most philosophical, comprehensive, and
entertaining, was destined to stand future testing at probably all
important points. When to these were added the publications of
Ames, Pollock and Maitland, there were then achieved, for the first
time, certain final results on a large scale; and it became possible
to study continuously the history of the main doctrines of sub-
stantive law and procedure from the beginning to present times.
The researches of Thayer, Liebermann, Jenks, Salmond, Scrutton,
and other recent workers in special fields and the later publications
of the Selden Society and its editors, and of other English societies,
merely increase the emphasis of the period's importance.

What has been gained, then, in the last fifteen years, by way of
tangible results? And what remains to be especially worked upon?
Here it is convenient to map out the subject in three regions; (A) the
external history of English law, (B) the internal history, and (C) its
transatlantic or American history; and it will be found that in these
three regions the acquisitions of knowledge have been^ in that order,
much, less, and least, respectively.

(A) What may be called the external history includes the relation
and influence of (1) Germanic law, (2) Roman law, (3) Canon law,
and (4) Continental mercantile and maritime law.

(1) The Germanic law influenced the English law through two
channels, just as the Missouri and the Mississippi unite to form one
stream which thereafter takes the latter name. The Germanic law
of the Continent was directly transferred by the Saxons, Jutes, and
other immigrants of 400-800 A. D.; with this, in 1000-1200 A. D.
united the law of the Norman invaders. The precise content of both
of these elements, together with the resulting fusion, and the share of
the contribution of each, may be said to be now for the most part
known and described. For Germanic law in the large sense, the
work of Brunner, Heusler, v. Amira, Gierke, Bethmann-Hollweg,
Stobbe, Schroeder, and some writers in special fields, has made clear
all that we need; except that Brunner's history has not gone beyond

352 HISTORY OF COMMON LAW

the 900 's (though this does not directly concern our own history).
For Norman law, the work of Esmein, Flach, Brissaud, Viollet,
Beaune, Tardif , and Glasson, with a few others, makes possible the
most necessary comparisons. The connections may be observed by
tracing the topics, one by one, in those writers and in Pollock and
Maitland's history. What is lacking is merely a detailed analysis, to
be made from this special point of view.

(2) The Roman law influence was never much more than indirect.
That is, there was never a deliberate receptio or adoption (as in
Germany from Italian jurists in the 1400's-1500's, or in Japan from
the French and German codes, in the 1800's, or in the Rhine provinces
from the French code in the 1800's). The revival of the continental
study of Roman law was then as yet too recent; and there were
other reasons. What happened was a certain large inspiration of form
and method, through the minds of the clerical judges and advisers,
administering the customary law during the 1100's and 1200's.
Thereafter, the only direct adoption consisted in the casual intrusion
of scraps of rules or analogies or phrases, here and there, into the
already definite and homogeneous body of English law. This much is
established by the researches of Pollock and Maitland and Scrutton.
A few details only remain to be explored.

(3) The canon law was a much more large and likely element of
mixture. It could and did come in by two avenues, (a) In the first
place, the knowledge and practice of the king's clerical justiciars and
advisers from 1100 to 1300 affected the form and method of English
law. The crude customary English law was thus (in the words of
Pollock and Maitland) rationalized by the canon law. A little, but
not much, was directly borrowed. This part of the influence is known
with some fullness. (&) In the next place, there continued for several
centuries after the definite constitution of the courts (4) King's
Bench, Exchequer, Common Pleas, Courts Baron, and the like (in
which the customary law was distinctively English) , several import-
ant courts in which either the substantive law, or the procedure, or
both, or a part of either, was professedly based on the canon law;
the courts of the Church, of Chancery, of Requests, of the Star
Chamber, and of the Admiralty represented almost a majority of
English courts, not only in number, but also in quantity and im-
portance of judicial business. By the 1500's and early 1600's there
was a keen rivalry, of which the ultimate issue really hung for a time
in the balance. Professor Maitland's essay on the " Renaissance of
English Law " has made it clear how narrow was the escape of the
common law. Although the canon law system did lose the upper
hand, and the courts which it dominated were one by one abolished
or amalgamated, still its methods and its substance were in large
part preserved in the field of law where they had developed in these

THE PROBLEMS OF TO-DAY 353

courts. Thus in the law of marriage, wills, chancery in general,
admiralty in general, and elsewhere, portions of the substantive law
and most of the procedural rules are owed to the canon law; and
modern statutes have even imitated a good deal of this in the ordinary
law. Most of the facts of their history are already known in detail,
under the different bodies of law. What remains now for the his-
torian is a comprehensive collation of these varied effects. This will
require the broadest survey of both systems, and he who will under-
take it has not yet disclosed himself.

To the foregoing influence of the Roman and canon law must be
added the casual insertion of a theory or a phrase, here and there, in
the common law courts, by a few of the well-read judges of earlier
times, like Lord Holt, Lord Mansfield, and in modern times, Lord
Bo wen, Sir George Jessel, Chief Justice Kent, Mr. Justice Story,
and Mr. Justice Holmes, who have occasionally invoked some analogy
learned by them from the other systems. In this way the law of
bailments, of fictitious assumpsit (or quasi-contract), of conflict
of laws, of partnership, and perhaps other subjects, has received a
few important marks. The systematic collation of these, also, has
still to be accomplished by the historian.

(4) The Continental mercantile and maritime law contributed a
great deal. That of the admiralty is fairly separable, and it may be
said that with the Selden Society's publication of Mr. Marsden's edi-
tion of Select Pleas of the Admiralty and the special modern treatises,,
little remains unknown of the history of the law as a body. Its
principal doctrines have still to be fully traced in detail. But the
general mercantile law, omitting sales, land-carriers, and agency
(which are almost purely indigenous topics), and including com-
mercial paper, partnership, insurance, corporations, and general
maritime law (with bills of lading and factors), is inextricably bound
up with the history across the channel, and its detailed story remains
one of the greatest and most interesting tasks of the future, (a) Of
these topics, the history of corporation law is perhaps the most
complicated, because, besides its economic aspects, it involves three
distinct elements, the ecclesiastical corporation (more or less de-
pendent on imported conceptions), the land-owning, franchise-own-
ing, and quasi-political boroughs and other communities, and the
commercial and industrial guilds and later joint-stock companies; the
last two groups have a long indigenous history, but the analogies on
the Continent are so important that their comparison is an inevitable
duty. Availing himself of Pollock and Maitland's survey of the
beginnings of this history, and of Professor Williston's and others'
essays in the later period, the legal historian has still to trace the
connected story of development in all aspects. (6) For commercial
paper, insurance, and maritime commercial law. almost everything

354 HISTORY OF COMMON LAW

(apart from two or three scattered essays) has yet to be done, that
is, for the story before the 1700's. The whole scene shifts across the
channel. Even there the curtain is but half raised. Brunner has
illuminated part of the history of commercial paper. Goldschmidt's
great history, cut short by his untimely death, did not get much
beyond the Mediterranean history down to the 1400's. The Hansa
and Flemish development seems not to be yet fully explored. The
three centuries in England before Lord Holt (1400-1690), when all
the Continental mercantile methods were being learned by English
traders, form undoubtedly the most fascinating and obscure part of
the untold story. To illustrate its possibilities: In 1609 a statute
of James I forbade the use of merchants' account-books in evidence,
except as between themselves, after one year and for items of over
forty shillings. This statute does not explain itself. Perhaps it looks
like a blow at the Dutch and Hansa merchants, who were intruding
alien customs in London. Yet Italian history shows numerous
identical statutes during the generation just preceding and following.
Was this part of a general movement? Was there a borrowing? The
largest sort of a survey is needed for the historian in this field, and
his search must range from Venice to Wisby and Oleron, as well as
from the court of Pie Powder to Lord Holt's dealings with promissory
notes.

(B) The internal history of the law (so far as it has not been noticed
in what was above said) may be likened in its present state to an
unfinished house, whose foundations have been completely laid and
whose frame and beams are erected. The roof is yet lacking and all
the filling in of the walls and plaster and flooring. Its plan and shape
and divisions can be plainly understood; but it cannot yet be in-
habited, and many kinds of workmen must yet labor upon it. These
foundations are those of Professor Maitland and Sir Frederick Pollock
in their history. This frame and these cross-beams are chiefly the
essays of Professor Ames. It may be said that down to the 1300's
practically the whole history of our law is established; and that from
the 1300's to the 1800's the history of the main doctrines of private
law which have remained obscure or misunderstood (excepting com-
mercial law) have been supplied. But the painstaking completion of
scores of important details during these five hundred years remains
to be done. It would be impossible here to enumerate the precise
parts. Merely as examples of some of those that have been supplied
may be named Mr. Scrutton's history of copyright; Professor Beale's
history of a bailee's liability; Mr. Veeder's history of libel and slander;
and Professor Gray's and Mr. Digby's work in real property. As
examples of those that have not been supplied may be taken the
history of mortgage law, x the history of personal suretyship, the history
1 This gap is now being filled by Mr. Hazeltine's essays.

THE PROBLEMS OF TO-DAY 355

of auxiliary legal remedies, and of legal process in general, the history
of mercantile law above mentioned (chiefly commercial paper, mari-
time law, and corporations), the history of conflict of laws, of in-
solvency laws, of public officers' liability, and of some doctrines of
equity.

(C) The transatlantic or American history of our law falls naturally
into four parts: (1) the colonial history, (2) the later judicial devel-
opment of the substantive common law as modified by statute in
a few parts, (3) the statutory forms of procedure, and (4) the adop-
tion of bodies of Spanish law in the Southwest.

(1) The colonial law remains as yet a rich and untilled field. The
doctors of philosophy have sufficiently diagnosed almost all of the
political and economic conditions which surrounded it, and the editors
have edited many portions of the archives; but the professedly legal
historian of the private law has not yet arisen. We know that much
law was brought directly over; the Massachusetts Colony sent for
Coke's Reports, so that it should not be forgotten. We also know
that some colonies discountenanced professional lawyers, so that
much inherited law was discarded or mutilated. We know, too, that
several of the many sound reforms which the Cromwellian Common-
wealth had planned, but the restoration of Charles had defeated,
were carried out in some of the colonies, — for example, the com-
pulsory registration of conveyances of land. But the systematic
exhumation of the private law as a whole, so far as it appears on the
records, has not been attempted, even for a single colony. Nor would
it be, in any part, of merely dead historic interest. Chief Justice
Kent decided a great many cases from his English reading, not from
local traditions or records; and after the English reports began to
multiply rapidly, from 1790 to 1810, they were chiefly relied on
even here. But the interesting thing is often seen, when an American
rule is found to differ from an English one, that it differs because it
had already been different in the tradition before 1800. All this
body of prior tradition remains to be systematically expounded.

(2) The development of substantive law since 1800 is to be found
usually described with sufficiency in the treatises on the special
topics of the law. In the law of real property, of marriage, and of
other subjects, there have been numerous important variations. But
these local historical features are not so significant for the general
understanding of our present law as the prior history of English law
itself, and the time has hardly yet come when a comprehensive survey
is either feasible or necessary. It is only to be noticed that the
writers of treatises do not usually handle their subject as much in the
historical spirit as it now deserves.

(3) The development of procedural changes has been widespread.
For the code system, so-called, its history has been described by

356 HISTORY OF COMMON LAW

Professor Hepburn and others. But in the older states, such as
Massachusetts and Connecticut, which still do not use the name of
code, much history has been made which deserves to be chronicled,
but as yet has not been systematically described in its causes and
circumstances. Such a history must begin with Bentham at one
extreme and with the American judicial organization at the other,
and will have much ground to cover.

(4) The land system of the United States Government titles has
affected all the Southern, Central, and Western states in general, and
the Spanish system in particular has affected those of California,
Texas, Missouri, Arkansas, New Mexico, and Arizona. The historical
aspects of this, which are interesting, have still to be depicted.

II. Our second inquiry is: What are the methods by which the
further investigation of our history can be encouraged, and its hitherto
attained results be made broadly known and influential in the legal
profession ? Our inquiry may be stated in two questions : (A) How
can we get more history written? and (B) How can we make known
what is written?

(A) The first question is a necessary one for us to face for two chief
reasons: One is that our bar as a whole does not demand historical
books, and therefore there are few investigators and fewer books.
The other reason is that our universities in the United States do
not in general exist (as those of the European Continent do) for the
main purpose of providing learned men with a comfortable living
while engaged in research; they are, primarily, teaching, not inves-
tigating bodies. Consequently the pursuit of historical research
tends to receive less than its relative share of activity. It is our
duty to canvass and to encourage all feasible means of increasing
this activity. What practical means are there?

(1) First of all, those who have vindicated their right to possess
this field should be urged and stimulated to continue its fruitful
tillage; and not to abandon it for other fields tempting to their
versatile sympathies. The greatest loss which English legal history,
in the strict sense, has ever suffered is marked by Professor Maitland's
excursus into the economic region of Domesday Book and the
minutiae of the primitive English land system, and by Professor
Ames's varied trips into the modern realms of commercial paper,
admiralty, and partnership. This Congress here assembled should
issue to those scholars a peremptory writ of Ne exeat regno Angliae
juris historiae. Let us appeal to them in the most urgent tones to
continue the cultivation of those peculiar fields whose fruits no one
else, in default of them, is either competent or likely to gather for
a generation or more to come.1

1 The motive, it may be supposed, for these great scholars' temporary abandon-
ment of the field of later medieval and early modern history is the scantiness of

THE PROBLEMS OF TO-DAY 357

(2) Let a committee of mature scholars map out a list of the pre-
cise topics now most demanding further research, and let the younger
scholars in our university faculties be thus supplied with intelli-
gent lines for their ambitions to pursue during the coming generation.

(3) Let the universities found a journal or series of proceedings
or studies in which historical essays, long or short, can be insured
a publication.

(4) Let the universities unitedly offer an annual or biennial prize
of a substantial sum for historical essays, perhaps requiring the
amount to be spent in study abroad.

(5) Finally, but most important of all, let the materials for his-
torical research be more amply provided. (1) As for materials
already printed, this means that there ought to be at least five
libraries, in different centres of this country, whose equipment in
English materials reasonably approaches in fullness that of the
Harvard Law School. It may not be longer possible to obtain in
multiplicate all of its sources, and in any case not without some years'
of search. Nevertheless, the fact ought to be faced that in order to
promote a healthy diffusion of historical activity, adequate means
should exist in at least five widely separated places. This would
require from $10,000 to $25,000 each to supplement the collections
now existing at some points. (2) As for the materials not yet printed,
the cause demands a decided expansion and acceleration of work.
These materials, roughly divided, are (a) the Rolls and other judicial
documents and early treatises now being gradually reprinted by the
English Record Commissioners and the Camden, Surtees, Pipe Roll,
and Selden Societies; (6) the Year Books; (c) the American colonial
records. As to the first of these groups the various efforts now being
made may be trusted to mature as rapidly as is feasible. As to the
second of these groups, the Year Books, something more can be and
ought to be done to speed the reediting.1 Since it is largely a question
of funds, the United States ought to contribute a share to this task of
common benefit. As a beginning, an assessment should be requested
from every university in the Association of American Law Schools, in
the amount of $100 each for every 200 students in its school; this
assessment to be pledged biennially or triennially. As for the third
group, colonial records (in which, indeed, much has already been done
by Massachusetts, Rhode Island, and New Hampshire), the State
Bar Associations of the Atlantic states should undertake to secure
the printing by a state commission of the distinctively legal material.

the materials at present accessible for studies in that epoch. Work done now
could hardly be expected to stand, after a generation. This dearth of materials
(to be noticed later) can be remedied in time; but the reasons are all the stronger
for hastening that fortunate day.

1 At this moment, the arrest of progress seems to be due chiefly to the difficulty
of finding persons who combine in equal and adequate degree the skill of a palaeo-
grapher and the training of a lawyer.

358 HISTORY OF COMMON LAW

With such expedients we shall have done something to secure
a firm and lasting growth for historical research.

(B) But the second part of our question is perhaps more pressing,
certainly more puzzling to answer: How can we make the Bench
and Bar to know, to possess, and to utilize what is already written?
True culture, says Matthew Arnold, is inspired not only by the
scientific passion, but by the passion of doing good. "Culture is
considered, not merely as the endeavor to see and learn this, but
the endeavor, also, to make it prevail." How, then, can we make the
acquired truths of history prevail?

It is plain to us all that our profession in this country radically
lacks taste, and interest, and common attainments, in the history
of our law. It is absorbed in the practice. "Not to know wrhat has
been transacted in former times," says Cicero, "is to continue
always a child. If no use is made of the labors of past ages, the
world must remain always in the infancy of knowledge." Of what
ultimate use is our historical research if its results remain practically
unknown and unused by the profession itself in the interpretation
and administration of the present law? It is depressing, it is irritating
to observe how scant is the consideration, how dense the ignorance,
shown by the practical administrators of the law when its history
becomes material in their work. The crude pronouncements of a
hundred years ago seem still to suffice. There might almost as well
have been, for them, no history written during the past two or three
generations. The astonishing obstinacy of this narrow professional
habit may be illustrated by a single but entirely typical instance.
Ex uno disce omnes. If there is one topic which is the pride and the
commonplace of our law, it is jury trial; if there is one topic more
than another which is known to have a history, it is jury trial; if
there is one question more than another in which history can con-
tribute to the settlement of modern practical questions, it is whether
in trial by jury, as handed down from of old, the number twelve is
essential; and, finally, if there is one tribunal more than another
which has by common attribution the highest legal attainments and
the least excuse for lacking them, it is the Supreme Court of the
United States. In the year 1897, then, in discussing this question
historically (in Thompson v. Utah),1 the opinion of the Supreme
Court of the United States of America declares that the well-known
clause of Magna Charta pledging a trial by judgment of the free-
man's peers signified trial by jury.2 Now in 1895, two years before,
the epoch-making history of Pollock & Maitland had appeared in

1 170 U. S. 343, 349; 18 Sup. 620.

2 " When Magna Charta declared that no freeman should be deprived of life,
etc., ' but by the judgment of his peers by the law of the land,' it referred to
a trial by twelve jurors."

THE PROBLEMS OF TO-DAY 359

the face of all men; in 1891, six years before, the history of jury
trial had been reexamined in the Harvard Law Review, by Professor
Thayer, one of the two greatest authorities on constitutional law
then living, outside of the Federal Supreme Court itself; and in
1875, twenty-two years before, had appeared in an American edition
Mr. Forsyth's History of Trial by Jury. In all three of these it had
been plainly pointed out that the Magna Charta clause did not sig-
nify jury trial, but precisely the opposite; namely the Barons were
opposed to jury trial.1 Yet, with all these authorities staring from
the library shelves, the " most exalted tribunal in the world " harks
back to Blackstone's crude authority of one hundred and thirty
years before; and perpetuates indelibly upon the records of our law
a gross error of fact upon one of the most simple, most marked,
most important, and best known points in our history. We need not
aspire, perhaps, to the fortunate condition of some of the European
courts, where (as at Basel in Switzerland) the Chief Justice is the
author of one of the three greatest histories of Germanic law, or
(as at Paris) the author of the leading history in his own language
of the procedure of the Holy Inquisition. But it is surely a simple
and defensible ambition that the judges of our highest court should
read somebody else's book of legal history enough to keep up with
the common and established facts of our past. It is held, as a rule
of our law, that judicial notice will be taken of ancient books of
history; and it would seem that our judges will take notice of no
other kind of books! Truly it ought not to be said of our courts,
as Rabelais' Pantagruel conceded to the learned doctors of the law,
that as for " knowledge of antiquities and history, they were truly
laden with them, — as a toad is with feathers! "

If we ask what is to be done, then, for the propagation of the
general knowledge of what is already established by our historical
scholars, we may take in turn the three parts of our legal profession,
(1) the Bench, (2) the Bar, (3) the students of law.

(1) As for the Bench, we may as well concede that it is vain to
hope by any measures to add this acquirement where it is lacking.
"Old mastiffs," Pantagruel called them; and it is a truism that you
cannot teach an old dog new tricks. Rudolph von Ihering, the
witty historian of Roman law, lamenting the imperviousness of the
German Bar to an interest in that history, declared that the right
man would some day be born who would serve up history as appe-
tizingly as a French cook could disguise a piece of sole-leather with
one of those inimitable sauces. Pending that genius's arrival, his
prescription was a good cigar, a comfortable stuffed chair, and the

1 Pollock & Maitland, 151; Thayer, 56, 65; Forsyth, 91 (" It is a common but
erroneous opinion that the judicium parium, or trial by one's peers, had reference
to the jury ").

360 HISTORY OF COMMON LAW

feet on the mantelpiece ad lib., as the best aid to the exercise of the
historical imagination. If a box of Havanas, by Ihering's prescrip-
tion, could be furnished to judges with every copy of Pollock and
Maitland, perhaps we might expect something. For most judges,
such artificial stimulus must be provided.

Fortunately, there are always exceptions. Where the instinct of
culture, that is, of a worthy and high-souled curiosity is seated
beneath the judical ermine, there will be found a judicial regard for
the history of our law, — as in Doe of New Hampshire, Gray of
Massachusetts, Mitchell of Minnesota, Daly of New York, Cooley
of Michigan (to name some of those who have passed away), and
among, those still active, to name only two or three prominent ones,
Holmes of Massachusetts and of the Federal Court, Dillon, now
retired, McClain of Iowa, and Baldwin of Connecticut.

(2) So, also, for the practitioners at the Bar, it is too late to do
anything directly except for those who still realize that knowledge
is unending and who continue to be students of the law.

(3) The great practical question therefore becomes, What can we
do to teach the knowledge of history to students of law, and that
chiefly, of course, in our schools of law?

(1) In the first place, the materials now existing in the English
language must be collected from scattered corners and brought to-
gether in a series of accessible volumes. It is practically impossible
to set a class of students at work on the material in its present form,
because for the purposes of a large body of students multiplicate
entire sets of the periodicals or copies of rare pamphlets would be
required. For example, an acquaintance with Professor Ames's
indispensable researches into the history of the civil actions cannot
be completely exacted of an entire class of students, simply because
a school cannot ordinarily possess a sufficient number of the entire
sets of the Review in which alone they are now accessible. The best
practical service that can at this moment be rendered to the study
of legal history would be the work of a committee doing two things:
(a) the compilation of a bibliography of all articles in periodicals,
all pamphlets, and all special chapters in general treatises, dealing
with the history of any part of our law; (6) the selection, from this
bibliography, of the most useful articles, pamphlets, and chapters,
for reprinting in a series of ten or twelve volumes, to be used by
instructors as reference materials in all subjects and for all grades
of students; the volumes to be subscribed for by universities and
other libraries to an extent sufficient to guarantee publication.

(2) In the second place, this same committee, or another one, must
provide for the gradual translation and publication of three or four
of the greatest Continental works of legal history on the period which
shows the foundations of our own history. The history of English

THE PROBLEMS OF TO-DAY 361

law, on both sides of the channel, is undoubtedly, as Mr. Freeman
used to emphasize, for European history in general, "from its first
glimmerings to our own day, one unbroken drama." We must
sedulously propagate this view of it. " I am ashamed," said Emerson,
"to see what a- shallow village tale our so-called history is." We
must do all we can, for the aspiring and worthy student, to remove
from our history that quality of a village tale which the technicalities
of professional practice tend to emphasize. It is useless to argue,
in opposition, that the student fit for these things will always have
the French and German languages at his command, and that therefore
a translation is unnecessary. The fact remains that a large propor-
tion of them have not, and that the exorbitant demands of other parts
of their legal education usually prevent them from undertaking
these languages merely for the sake of legal history. Besides, the
study of that history to-day needs special encouragement; we ought
to remove all the actual obstacles, even if we think that they ought
not to have been obstacles. The translations ought to include at
least Brunner and Heusler on Germanic law, Esmein on French
criminal procedure, Brissaud on French civil law (when the work is
finished), Fertile on Italian legal history, and Goldschmidt on the
history of commercial law. It is lamentable to think of those works
being locked up from the mature students of this generation. The
committee's task wrould be in four parts : (a) to fix upon the works to
be translated and to secure the authors' consent; (6) to discover
among the younger men those whose accomplishments and tastes
would fit them for the labor of translation; (c) to secure from the
universities and other libraries a sufficient number of subscriptions
to induce a publisher to undertake the series; (d) to adopt a uniform
vocabulary for the translation of certain common technical words,
and to keep a general supervision over the process of the translation.1
(3) In the third place, the study of legal history should be made
compulsory in law schools. The great fact of experience under the
elective system in law schools is that with the multiplication and
expansion of topics the subjects of history and jurisprudence are
crowded out of the usual voluntary selection. The temptation of
the practical, as it looms up directly ahead in the profession, is too
great for the student. As between particular advanced topics of
law — such as mortgages, commercial paper, and the like — no one
of these seems to deserve greater claims than any other; it is rather
a question of discipline undergone than of information acquired.
But against any one or all of these, legal history does have a claim.
Since the student ignores that claim, it should be vindicated in his
behalf and regardless of his choice. History, says Montaigne, is

1 Since the above was written, the Association of American Law Schools, in
August, 1905, has appointed a committee to consider these needs.

362 HISTORY OF COMMON LAW

everybody's subject. Over and above the history of the individual
doctrines studied in the several courses, there ought to be a course of
general reading. Our mistake hitherto seems to have been in sup-
posing that this must indispensably involve a course of lectures; and
few of us have cared to assume the cathedra of legal history. But
the essential thing is merely that the student should gain the broad-
ened view by a course of reading. "Reading maketh a full man."
This part of the education can be sufficiently tested by an examin-
ation. This course of historical reading should include something
interesting in the biographies and traditions of bench and bar.
The Duke of Marlborough said that he learned all the history he ever
knew out of Shakespeare's historical plays; certainly our modern
legal history can best be studied in the careers of Hardwicke, Mans-
field, Eldon, Erskine, Denman, Brougham, Campbell, Webster, and
Choate. The course, moreover, should not be seriously attempted
until the second and third years. John Morley has preached to us the
natural method of learning history backward. "I want to know,"
he says, " what men did in the thirteenth century, not out of anti-
quarian curiosity, but because the thirteenth century is at the root of
what men think and do in the nineteenth. It is the present that we
seek to understand and to explain." Until the student has come into
the possession of some of the technicalities of trover and ejectment,
and has read some of the opinions of Mansfield and Eldon, it is use-
less to expect him to take a living interest in the details of history.
Such a course can be constructed on something like the following
lines: First Year: Selected chapters of Blackstone's Commentaries
(for acquiring the orthodox traditions); R. K. Wilson's History
of Modern English Law. Second Year: (a) Pollock & Maitland's
History of English Law, volume 1; and (6) Campbell's Lives of the
Chancellors, beginning with Lord Hardwicke. Extra and optional
course, to count for additional credit under the elective system:
(a) Pollock & Maitland's History of the English Law, volume 2, or
selected essays by Ames and others; (6) any three of the following:
Campbell's Lives of the Chancellors, from Sir Thomas More to Lord
Hardwicke; Campbell's Lives of the Chief Justices, from Lord Holt;
Campbell's Autobiography; Twiss's Life of Lord Eldon; Arnould's
Life of Lord Denman; Brown's Life of Rufus Choate. Third Year
(here branching from legal history to broadening subjects of juris-
prudence) : A course of reading (of one or two volumes) in specified
books on anyone of the following subjects: General jurisprudence.
Roman law, international law, Germanic legal history. Some-
thing of this sort must surely be done if the newer generation are
to be expected to know and to use the* results achieved by the
older scholars.

THE PROBLEMS OF TO-DAY 363

III. Our third and last general inquiry is: What are the chief
lessons and warnings for the future tendencies of our legal history?
This does not signify an inquiry into the changes which are likely to
be suffered or ought to be made in particular doctrines or rules.
That is a question of legislative policy. The question is this : Having
in view the mode of development of our law in the past, are the
general conditions which have surrounded that development likely
to remain, and, if not, in what respect? Will the persons and their
methods remain the same, so that we may expect the mould and
form to remain? It is seen, for example, that when English law was
transferred to American soil all the distinctive mechanics of develop-
ment continued. The legislator and the judge, the treatise and the
report, the bench and the bar, took practically the same part as
before. Only the distinction between constitution and statute
was novel, and the abolition of distinction between counsel and
attorney. Except, therefore, in the constitutional field, it has
resulted that we may to-day discuss contemporary American law in
practically the same terms in which Lord Holt and Sir Edward Coke
discussed it. Does the future have any promises or omens for us?
Two features seem clearly marked.

(1) An omen is certainly visible in the inordinate multiplication
of printed reports of cases. The threat to the future of our law is
veritably appalling. We are likely to be overwhelmed by them. The
danger is that in trying to remedy the evil, when it bursts upon us,
we shall take some sudden and ill-judged measure of defense. Per-
haps, like Justinian or Napoleon, we shall commit the futile error of
forbidding all rulings of courts to be cited as precedents. Perhaps,
like the stag fleeing from his pursuers and blindly thrusting his head
into the bush, we shall decline to print a portion of the opinions which
we write (as some courts now do) and then feign not to see the private
editions which the lawyers are nevertheless using. But in any case
we must not abandon the publication of opinions. Abolish reports,
said Edmund Burke, arid you abolish the law of England. The essential
thing is not this or that remedy, but the clear conscious vision of the
momentous danger that is approaching. It will swamp our law; it
will turn it into a formless mass. The mere bulk will be such as to
transform our whole professional life and legal methods, in some
fashion which is as yet unforeseen, but is certain to be undesirable.
The most feasible and effective remedy is for the judges to refrain
from writing opinions of any sort except in that small proportion
of cases which seem to require them.

(2) The second feature of the outlook is a promise of encouragement,
in that the vogue of wholesale codification has been stopped. This
has been plain for a decade or more past. With so little of our legal
history fully disentangled, and with communities of such diverse

364 HISTORY OF COMMON LAW

interests to be served by the national law, the time for codification
of the entire mass of law ought to be far in the future. But the codi-
fication of what is known and settled, gradually proceeding piecemeal
through the mass, is a different, a feasible, and a desirable thing.
This is the turn now being taken. Through the efforts of the American
Bar Association and the State Commissions on Uniformity of Legisla-
tion, a signal beginning has been made, and the progress is likely to
be as rapid as could be expected.

Except in these two important respects, the history of our law in
the future seems destined to develop by the same methods, during
the next one hundred years, at any rate, as during the past three
centuries.

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