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B 1,193,305
 L
1817

ARTES SCIENTIA
VERITAS
LIBRARY IGAN
CHTHE
OF
I V E R SITY OF MI
UN
+

TUEBOR

RSPENINSULAM AMENAM
IRCUMSPICE
ANCIENT LAW
ANCIENT LAW

ITS CONNECTION WITH THE EARLY HISTORY

OF SOCIETY AND ITS RELATION

TO MODERN IDEAS

BY SIR HENRY SUMNER MAINE

K.C.S.I., LL.D. , F.R.S.

FOREIGN ASSOCIATE MEMBER OF THE INSTITUTE OF FRANCE

CHEAP EDITION

LONDON

JOHN MURRAY, ALBEMARLE STREET, W.

1905
Grad, R. R. 4

150
M225
25
• M2
5
190

PRINTED AND BOUND BY

HAZELL, WATSON AND VINEY, LD.,
LONDON AND AYLESBURY.
 X ,ad RK C
14-12-51

Hist.-Engl.
Harding
15.2-34
28877
add.cop .

PREFACE

ΤΟ

THE TENTH EDITION

THE theory of legal development propounded in

this volume has been generally accepted ; but it

has been thought that, in his Fifth Chapter on

" Primitive Society and Ancient Law," the Author

has not done sufficient justice to investigations

which appear to show the existence of states of

society still more rudimentary than that vividly

described in the Homeric lines quoted at page 110 ,

and ordinarily known as the Patriarchal State .

"" accounts
The Author at page 106 has mentioned

by contemporary observers of civilisations less

advanced than their own," as capable of affording

peculiarly good evidence concerning the rudiments

of society ; and, in fact , since his work was first

published, in 1861 , the observation of savage or

extremely barbarous races has brought to light

forms of social organisation extremely unlike that

to which he has referred the beginnings of law,
vi PREFACE TO THE TENTH EDITION

and possibly in some cases of greater antiquity.

The subject is, properly speaking, beyond the

scope of the present work, but he has given his

opinion upon the results of these more recent

inquiries in a paper on " Theories of Primitive

Society," published in a volume on Early Law

and Custom " (Murray, 1883 ).

H. S. M.

LONDON : November 1884.

 PREFACE

ΤΟ

THE FIFTH EDITION

WHILE further reflection and research have not

led the Author of this work to alter his views on

most of the matters of which it treats, he has

convinced himself that the opinions expressed

in the First Chapter on the difficult and still

obscure subject of the origin of Customary Law
require correction and modification . He has at-

tempted to supply a part of the necessary correc-

tions and modifications in a volume called " Village
Communities in the East and West " (London :

Murray, 1871 ).

H. S. M.

LONDON: December 1873.

vii
Grad , R. R. 4

150
M
$ 25
25
• M2
5
190

PRINTED AND BOUND BY

HAZELL, WATSON AND VINEY, LD.,
LONDON AND AYLESBURY.
 HindRKC
17-12-31
His.
t-Engl.
Harding
5-2-34
28871
add.cop .

PREFACE

ΤΟ

THE TENTH EDITION

THE theory of legal development propounded in

this volume has been generally accepted ; but it

has been thought that , in his Fifth Chapter on

" Primitive Society and Ancient Law, " the Author

has not done sufficient justice to investigations

which appear to show the existence of states of

society still more rudimentary than that vividly

described in the Homeric lines quoted at page 110 ,

and ordinarily known as the Patriarchal State.

The Author at page 106 has mentioned " accounts

by contemporary observers of civilisations less

advanced than their own ," as capable of affording

peculiarly good evidence concerning the rudiments

of society ; and, in fact , since his work was first

published , in 1861 , the observation of savage or

extremely barbarous races has brought to light

forms of social organisation extremely unlike that

to which he has referred the beginnings of law,

vi PREFACE TO THE TENTH EDITION

and possibly in some cases of greater antiquity .

The subject is, properly speaking, beyond the

scope of the present work, but he has given his

opinion upon the results of these more recent

inquiries in a paper on " Theories of Primitive

Society," published in a volume on " Early Law

and Custom " (Murray, 1883 ) .

H. S. M.

LONDON : November 1884.

 PREFACE

ΤΟ

THE FIFTH EDITION

WHILE further reflection and research have not

led the Author of this work to alter his views on

most of the matters of which it treats, he has

convinced himself that the opinions expressed

in the First Chapter on the difficult and still

obscure subject of the origin of Customary Law

require correction and modification . He has at-

tempted to supply a part of the necessary correc-

tions and modifications in a volume called " Village

Communities in the East and West " (London :

Murray, 1871).
H. S. M.

LONDON: December 1873.

vli
 PREFACE

ΤΟ

THE THIRD EDITION

THE Second and Third Editions of this work have

been substantially reprints of the First . Some

few errors have, however, been corrected .

It is necessary to remind the reader that the

First Edition was published in 1861. The course

of events since that period in Russia and in

Northern America has taken away much of its

application to existing facts from the language

employed by the writer on the subject of serfage

in Russia , of the Russian village- communities ,

and of negro- slavery in the United States . It

may perhaps be interesting to the reader to

observe the bearing of the changes which have

taken place on the argument of that part of the

work .

H. S. M.

CALCUTTA : November 1865.

viil
 PREFACE

ΤΟ

THE FIRST EDITION

THE chief object of the following pages is to

indicate some of the earliest ideas of mankind, as

they are reflected in Ancient Law, and to point

out the relation of those ideas to modern thought .

Much of the inquiry attempted could not have

been prosecuted with the slightest hope of a useful

result if there had not existed a body of law, like

that of the Romans , bearing in its earlier portions

the traces of the most remote antiquity and

supplying from its later rules the staple of the

civil institutions by which modern society is even

now controlled. The necessity of taking the

Roman law as a typical system, has compelled
the Author to draw from it what may appear a
disproportionate number of his illustrations ; but

it has not been his intention to write a treatise

on Roman jurisprudence, and he has as much

as possible avoided all discussions which might
ix
 PREFACE

ΤΟ

THE THIRD EDITION

THE Second and Third Editions of this work have

been substantially reprints of the First . Some

few errors have, however, been corrected .

It is necessary to remind the reader that the

First Edition was published in 1861. The course

of events since that period in Russia and in

Northern America has taken away much of its

application to existing facts from the language

employed by the writer on the subject of serfage

in Russia, of the Russian village-communities ,

and of negro- slavery in the United States . It

may perhaps be interesting to the reader to

observe the bearing of the changes which have

taken place on the argument of that part of the

work.

H. S. M.

CALCUTTA : November 1865.

viil
 PREFACE

ΤΟ

THE FIRST EDITION

THE chief object of the following pages is to

indicate some of the earliest ideas of mankind , as

they are reflected in Ancient Law, and to point

out the relation of those ideas to modern thought .

Much of the inquiry attempted could not have

been prosecuted with the slightest hope of a useful

result if there had not existed a body of law, like

that of the Romans , bearing in its earlier portions

the traces of the most remote antiquity and

supplying from its later rules the staple of the

civil institutions by which modern society is even

now controlled . The necessity of taking the

Roman law as a typical system, has compelled

the Author to draw from it what may appear a

disproportionate number of his illustrations ; but

it has not been his intention to write a treatise

on Roman jurisprudence , and he has as much

as possible avoided all discussions which might

ix
X PREFACE TO THE FIRST EDITION

give that appearance to his work. The space

allotted in the Third and Fourth Chapters to

certain philosophical theories of the Roman

Jurisconsults , has been appropriated to them for

two reasons . In the first place , those theories

appear to the Author to have had a much wider

and more permanent influence on the thought

and action of the world than is usually supposed .

Secondly, they are believed to be the ultimate

source of most of the views which have been

prevalent, till quite recently , on the subjects

treated of in this volume. It was impossible for

the Author to proceed far with his undertaking,

without stating his opinion on the origin , meaning,

and value of those speculations .

H. S. M.

LONDON : January 1861.

 CONTENTS

CHAPTER
PAGE
I. ANCIENT CODES
I
II. LEGAL FICTIONS •
19
III. LAW OF NATURE AND EQUITY
39
IV. THE MODERN HISTORY OF THE LAW OF NATURE
64
V. PRIMITIVE SOCIETY AND ANCIENT LAW
100
VI . THE EARLY HISTORY OF TESTAMENTARY SUC-

CESSION •
152
VII. ANCIENT AND MODERN IDEAS RESPECTING WILLS

AND SUCCESSIONS ·
191
VIII. THE EARLY HISTORY OF PROPERTY
217
IX . THE EARLY HISTORY OF CONTRACT
. 270
X. THE EARLY HISTORY OF DELICT AND Crime
• 326
INDEX
• 355
H

x1
 ANCIENT LAW

CHAPTER I

ANCIENT CODES

THE most celebrated system of jurisprudence

known to the world begins , as it ends , with a

Code . From the commencement to the close

of its history, the expositors of Roman Law

consistently employed language which implied
that the body of their system rested on the Twelve
Decemviral Tables, and therefore on a basis of
written law. Except in one particular , no in-
stitutions anterior to the Twelve Tables were
recognised at Rome . The theoretical descent
of Roman ju ri sprudence from a code , the theo-
retical ascription of English law to immemorial
unwritten tradition , were the chief reasons why

the development of their system differed from

the development of ours . Neither theory corre-
sponded exactly with the facts, but each produced
consequences of the utmost importance .

I need hardly say that the publication of the

Twelve Tables is not the earliest point at which

we can take up the history of law. The ancient

Roman code be longs to a class of which almost

I
2 ANCIENT CODES [CHAP. I

every civilised nation in the world can show a

sample, and which, so far as the Roman and
Hellenic worlds were concerned , were largely
diffused over them at epochs not widely distant
from one another. They appeared under ex-
ceedingly similar circumstances , and were pro-
duced, to our knowledge, by very similar causes .
Unquestionably, many jural phenomena lie behind
these codes and preceded them in point of time.
Not a few documentary records exist which pro-
fess to give us information concerning the early
phenomena of law ; but, until philology has
effected a complete analysis of the Sanskrit litera-
ture, our best sources of knowledge are undoubt-
edly the Greek Homeric poems, considered of
course not as a history of actual occurrences ,
but as a description , not wholly idealised , of a
state of society known to the writer. However
the fancy of the poet may have exaggerated
certain features of the heroic age, the prowess
of warriors and the potency of gods, there is no
reason to believe that it has tampered with
moral or metaphysical conceptions which were
not yet the subjects of conscious observation ;
and in this respect the Homeric literature is far
more trustworthy than those relatively later
documents which pretend to give an account of
times similarly early, but which were compiled
under philosophical or theological influences . If
by any means we can determine the early forms
of jural conceptions, they will be invaluable to
us. These rudimentary ideas are to the jurist

what the primary crusts of the earth are to the

geologist. They contain, potentially, all the forms
 CHAP. I RUDIMENTARY JURAL IDEAS
3
in which law has subsequently exhibited itself.
The haste or the prejudice which has generally
refused them all but the most superficial examina-
tion, must bear the blame of the unsatisfactory
condition in which we find the science of juris-
prudence . The inquiries of the jurist are in
truth prosecuted much as inquiry in physics

and physiology was prosecuted before observation

had taken the place of assumption . Theories ,
plausible and comprehensive , but absolutely un-
verified, such as the Law of Nature or the Social
Compact, enjoy a universal preference over sober
research into the primitive history of society
and law ; and they obscure the truth not only
by div ert ing attention from the only quarter
in which it can be found , but by that most real
and most important influence which , when once
entertained and believed in , they are enabled
to exercise on the later stages of jurisprudence .
The earliest notions connected with the con-
ception, now so fully developed , of a law or rule
of life , are those contained in the Homeric words
" Themis " and " Themistes ." 66
Themis," it is
well known, appears in the later Greek pantheon
as the Goddess of Justice, but this is a modern
and much developed idea , and it is in a very
different sense that Themis is described in the
Iliad as the assessor of Zeus . It is now clearly

seen by all trustworthy observers of the primitive

condition of mankind that , in the infancy of

the race, men could only account for sustained

or periodically recurring action by supposing a
personal agent . Thus, the wind blowing was a
person and of course a divine person ; the sun
4 ANCIENT CODES [CHAP. 1

rising, culminating, and setting was a person and

a divine person ; the earth yielding her increase
was a person and divine . As , then , in the physical
world, so in the moral . When a king decided
a dispute by a sentence , the judgment was assumed
to be the result of direct inspiration . The divine
agent, suggesting judicial awards to kings or to
gods, the greatest of kings, was Themis . The

peculiarity of the conception is brought out by

the use of the plural. Themistes, Themises , the
plural of Themis, are the awards themselves ,
divinely dictated to the judge . Kings are spoken
of as if they had a store of " Themistes " ready
to hand for use ; but it must be distinctly under-
stood that they are not laws, but judgments ,
or, to take the exact Teutonic equivalent ,
66 ""
" dooms ." Zeus, or the human king on earth ,'

says Mr. Grote, in his History of Greece , is

not a law-maker, but a judge . " He is provided

with Themistes, but , consistently with the belief
in their emanation from above , they cannot be
supposed to be connected by any thread of prin-
ciple ; they are separate, isolated judgments .
Even in the Homeric poems we can see that
these ideas are transient . Parities of circumstance
were probably commoner in the simple mechanism
of ancient society than they are now, and in the
succession of similar cases awards are likely to
follow and resemble each other. Here we have
the germ or rudiment of a custom , a conception
posterior tothat of Themistes or judgments .
However strongly we, with our modern associa-
tions, may be inclined to lay down à priori that
the notion of a Custom must precede that of a
CHAP. I] THEMISTES 5

judicial sentence, and that a judgment must

affirm a custom or punish its breach, it seems
quite certain that the historical order of the
ideas is that in which I have placed them.
The
Homeric word for a custom in the embryo is
sometimes " Themis " in the singular- more often
" Dike, " the meaning of which visibly fluctuates
between a " judgment " and a custom " or
""
usage ." Nóμos, a Law, so great and famous
a term in the political vocabulary of the later
Greek society, does not occur in Homer.
This notion of a divine agency, suggesting
the Themistes , and itself impersonated in Themis ,
must be kept apart from other primitive beliefs
with which a superficial inquirer might confound
it. The conception of the Deity dictating an
entire code or body of law, as in the case of
the Hindoo laws of Manu , seems to belong to a
range of ideas more recent and more advanced.
" Themis " and " Themistes " are much less

remotely linked with that persuasion which clung

so long and so tenaciously to the human mind,
of a divine influence underlying and supporting
every relation of life , every social institution .
In early law, and amid the rudiments of political
thought, symptoms of this belief meet us on all
sides. A supernatural presidency is supposed
to consecrate and keep together all the cardinal
institutions of those times, the State, the Race,
and the Family. Men, grouped together in the
different relations which those institutions imply,
are bound to celebrate periodically common rites.
and to offer common sacrifices ; and every now
and then the same duty is even more significantly
6 ANCIENT CODES [CHAP. 1

recognised in the purifications and expiations

which they perform , and which appear intended
to deprecate punishment for involuntary or
neglectful disrespect . Everybody acquainted
with ordinary classical literature will remember
the sacra gentilicia, which exercised so important
an influence on the early Roman law of adoption
and of wills . And to this hour the Hindoo
Customary Law, in which some of the most curious
features of primitive society are stereotyped,
makes almost all the rights of persons and all the
rules of succession hinge on the due solemnisation
of fixed ceremonies at the dead man's funeral ,
that is , at every point where a breach occurs in
the continuity of the family.
Before we quit this stage of jurisprudence , a
caution may be usefully given to the English
student . Bentham , in his " Fragment on Govern-
ment," and Austin , in his " Province of Juris-
prudence Determined," resolve every law into
a command of the lawgiver, an obligation imposed
thereby on the citizen , and a sanction threatened
in the event of disobedience ; and it is further
predicated of the command, which is the first
element in a law, that it must prescribe , not a
single act, but a series or number of acts of the
same class or kind . The results of this separation
of ingredients tally exactly with the facts of
mature jurisprudence ; and , by a little straining
of language, they may be made to correspond
in form with all law, of all kinds , at all epochs .
It is not, however, asserted that the notion of
law entertained by the generality is even now
quite in conformity with this dissection ; and
CHAP. 1] BENTHAM'S ANALYSIS
7

it is curious that, the farther we penetrate into

the primitive history of thought , the farther we
find ourselves from a conception of law which at
all resembles a compound of the elements which
Bentham determined . It is certain that, in the
infancy of mankind, no sort of legislature , nor
even a distinct author of law, is contemplated
or conceived of. Law has scarcely reached the
footing of custom ; it is rather a habit . It is ,
to use a French phrase, “ in the air." The only
authoritative statement of right and wrong is a

judicial sentence after the facts, not one pre-

supposing a law which has been violated , but
one which is breathed for the first time by a
higher power into the judge's mind at the moment
of adjudication . It is of course extremely difficult
for us to realise a view so far removed from us
in point both of time and of association, but it
will become more credible when we dwell more

at length on the constitution of ancient society ,

in which every man , living during the greater
part of his life under the patriarchal despotism,
was practically controlled in all his actions by
a regimen not of law but of caprice . I may add
that an Englishman should be better able than
a foreigner to appreciate the historical fact that
the "Themistes " preceded any conception of
law, because, amid the many inconsistent theories
which prevail concerning the character of English
jurisprudence, the most popular , or at all events
the one which most affects practice , is certainly
a theory which assumes that adjudged cases and
precedents exist antecedently to rules, principles ,
and distinctions . The " Themistes " have too ,
8 ANCIENT CODES [CHAP. I

it should be remarked, the characteristic which,

in the view of Bentham and Austin , distinguishes
single or mere commands from laws. A true law

enjoins on all the citizens indifferently a number

of acts similar in class or kind ; and this is exactly
the feature of a law which has most deeply im-
pressed itself on the popular mind, causing the
term " law " to be applied to mere uniformities,
successions, and similitudes . A command pre-
scribes only a single act , and it is to commands ,
therefore, that " Themistes " are more akin than

to laws. They are simply adjudications on insu-

lated states of fact , and do not necessarily follow
each other in any orderly sequence .

The literature of the heroic age discloses to

us law in the germ under the " Themistes " and
a little more developed in the conception of
""
Dike ." The next stage which we reach in the
history of jurisprudence is strongly marked and
surrounded by the utmost interest . Mr. Grote , in
the second part and ninth chapter of his History,
has fully described the mode in which society
gradually clothed itself with a different character
from that delineated by Homer. Heroic kingship
depended partly on divinely given prerogative ,
and partly on the possession of supereminent
strength, courage, and wisdom. Gradually, as
the impression of the monarch's sacredness became
weakened, and feeble members occurred in the
series of hereditary kings, the royal power decayed ,
and at last gave way to the dominion of aris-
tocracies . If language so precise can be used of
the revolution , we might say that the office of
the king was usurped by that council of chiefs
CHA?. 1] ARISTOCRATIC PERIOD 9

which Homer repeatedly alludes to and depicts .

At all events from an epoch of kingly rule we
come everywhere in Europe to an era of oligarchies ;
and even where the name of the monarchical
functions does not absolutely disappear, the
authority of the king is reduced to a mere shadow.
He becomes a mere hereditary general, as in
Lacedæmon, a mere functionary, as the King
Archon at Athens, or a mere formal hierophant,
like the Rex Sacrificulus at Rome. In Greece ,
Italy, and Asia Minor, the dominant orders seem
to have universally consisted of a number of
families united by an assumed relationship in
blood, and, though they all appear at first to
have laid claim to a quasi- sacred character,
their strength does not seem to have resided in
their pretended sanctity . Unless they were pre-
maturely overthrown by the popular party , they
all ultimately approached very closely to what we
should now understand by a political aristocracy.

The changes which society underwent in the

communities of the further Asia occurred of
course at periods long anterior in point of time
to these revolutions of the Italian and Hellenic
worlds ; but their relative place in civilisation
appears to have been the same, and they seem
to have been exceedingly similar in general
character. There is some evidence that the races

which were subsequently united under the Persian

monarchy, and those which peopled the peninsula
of India, had all their heroic age and their era
of aristocracies ; but a military and a religious
oligarchy appear to have grown up separately,
nor was the authority of the king generally
ΙΟ ANCIENT CODES [CHAP. 1

superseded . Contrary , too , to the course of events

in the West, the religious element in the East
tended to get the better of the military and
political . Military and civil aristocracies dis-
appear, annihilated or crushed into insignificance
between the kings and the sacerdotal order ;
and the ultimate result at which we arrive is,
a monarch enjoying great power, but circum-
scribed by the privileges of a caste of priests .
With these differences , however, that in the East
aristocracies became religious , in the West civil
or political, the proposition that a historical
era of aristocracies succeeded a historical era of

heroic kings may be considered as true, if not of

all mankind, at all events of all branches of the
Indo-European family of nations.
The important point for the jurist is that
these aristocracies were universally the depositaries
and administrators of law. They seem to have
succeeded to the prerogatives of the king, with
the important difference , however, that they do
not appear to have pretended to direct inspiration
for each sentence . The connection of ideas which

caused the judgments of the patriarchal chieftain

to be attributed to superhuman dictation still
shows itself here and there in the claim of a

divine origin for the entire body of rules , or for

certain parts of it, but the progress of thought
no longer permits the solution of particular
disputes to be explained by supposing an extra-
human interposition . What the juristical oli-
garchy now claims is to monopolise the knowledge
of the laws, to have the exclusive possession of
the principles by which quarrels are decided .
CHAP. 1] CUSTOMARY LAW II

We have in fact arrived at the epoch of Custom-

ary Law. Customs or Observances now exist as
a substantive aggregate, and are assumed to be
precisely known to the aristocratic order or caste.
Our authorities leave us no doubt that the trust

lodged with the oligarchy was sometimes abused ,

but it certainly ought not to be regarded as a
mere usurpation or engine of tyranny . Before
the invention of writing, and during the infancy
of the art, an aristocracy invested with judicial
privileges formed the only expedient by which
accurate preservation of the customs of the race
or tribe could be at all approximated to . Their
genuineness was , so far as possible, insured by
confiding them to the recollection of a limited
portion of the community.
The epoch of Customary Law, and of its cus-
tody by a privileged order, is a very remarkable
one . The condition of jurisprudence which it
implies has left traces which may still be detected
in legal and popular phraseology . The law, thus
known exclusively to a privileged minority,
whether a caste, an aristocracy, a priestly tribe ,
or a sacerdotal college , is true unwritten law.
Except this, there is no such thing as unwritten
law in the world . English case-law is sometimes
spoken of as unwritten, and there are some
English theorists who assure us that if a code of
English jurisprudence were prepared we should
be turning unwritten law into written- a con-
version, as they insist , if not of doubtful policy,
at all events of the greatest seriousness . Now, it
is quite true that there was once a period at which
the English common law might reasonably have
12 ANCIENT CODES [CHAP. I

been termed unwritten . The elder English judges

did really pretend to knowledge of rules , principles ,
and distinctions which were not entirely revealed
to the bar and to the lay-public . Whether all the
law which they claimed to monopolise was really
unwritten, is exceedingly questionable ; but at all
events, on the assumption that there was once a
large mass of civil and criminal rules known
exclusively to the judges, it presently ceased
to be unwritten law. As soon as the Courts at
Westminster Hall began to base their judgments
on cases recorded , whether in the year-books or
elsewhere, the law which they administered became
written law. At the present moment a rule of
English law has first to be disentangled from the
recorded facts of adjudged printed precedents ,
then thrown into a form of words varying with
the taste, precision , and knowledge of the particu-
lar judge , and then applied to the circumstances
of the case for adjudication . But at no stage of
this process has it any characteristic which dis-
tinguishes it from written law. It is written
case-law, and only different from code-law because
it is written in a different way.
From the period of Customary Law we come
to another sharply defined epoch in the history
of jurisprudence . We arrive at the era of Codes ,
those ancient codes of which the Twelve Tables
of Rome were the most famous specimen . In
Greece, in Italy, on the Hellenised sea- board of
Western Asia, these codes all made their appear-
ance at periods much the same everywhere , not,
I mean, at periods identical in point of time, but
similar in point of the relative progress of each
CHAP. 1] ANCIENT CODES 13

community. Everywhere, in the countries I have

named, laws engraven on tablets and published
to the people take the place of usages deposited
with the recollection of a privileged oligarchy.
It must not for a moment be supposed that the
refined considerations now urged in favour of what
is called codification had any part or place in the
change I have described . The ancient codes were
doubtless originally suggested by the discovery
and diffusion of the art of writing . It is true that
the aristocracies seem to have abused their
monopoly of legal knowledge ; and at all events
their exclusive possession of the law was a formid-
able impediment to the success of those popular
movements which began to be universal in the
western world. But, though democratic senti-
ment may have added to their popularity, the
codes were certainly in the main a direct result
of the invention of writing . Inscribed tablets
were seen to be a better depository of law, and
a better security for its accurate preservation ,
than the memory of a number of persons however
strengthened by habitual exercise .
The Roman code belongs to the class of codes
I have been describing. Their value did not
consist in any approach to symmetrical classifi-
cation, or to terseness and clearness of expression ,
but in their publicity, and in the knowledge which F
they furnished to everybody, as to what he was
to do, and what not to do . It is, indeed, true
1
that the Twelve Tables of Rome do exhibit some

traces of systematic arrangement, but this is

probably explained by the tradition that the
framers of that body of law called in the assistance
14 ANCIENT CODES [ CHAP. 1

of Greeks who enjoyed the later Greek experience

in the art of law-making . The fragments of the
Attic Code of Solon show, however, that it had
but little order, and probably the laws of Draco
had even less. Quite enough too remains of these
collections , both in the East and in the West, to
show that they mingled up religious, civil , and
merely moral ordinances , without any regard to
differences in their essential character ; and this
is consistent with all we know of early thought
from other sources, the severance of law from
morality, and of religion from law, belonging
very distinctly to the later stages of mental
progress.
But, whatever to a modern eye are the singu-
larities of these codes, their importance to ancient
societies was unspeakable . The question—and it
was one which affected the whole future of each

community-was not so much whether there

should be a code at all , for the majority of ancient
societies seem to have obtained them sooner or

later, and, but for the great interruption in the

history of jurisprudence created by feudalism, it
is likely that all modern law would be distinctly
traceable to one or more of these fountain- heads.

But the point on which turned the history of

the race was, at what period , at what stage of
their social progress, they should have their
laws put into writing. In the Western world the
plebeian or popular element in each State suc-
cessfully assailed the oligarchical monopoly, and
a code was nearly universally obtained early in
the history of the Commonwealth . But, in the
East, as I have before mentioned , the ruling
CHAP. 1] LAWS OF MANU 15

aristocracies tended to become religious rather

than military or political, and gained , therefore ,
rather than lost in power ; while in
while in some
instances the physical conformation of Asiatic 1
countries had the effect of making individual
communities larger and more numerous than in
the West ; and it is a known social law that
the larger the space over which a particular
set of institutions is diffused , the greater is its
tenacity and vitality. From whatever cause, the
codes obtained by Eastern societies were obtained,
relatively, much later than by Western , and wore
a very different character. The religious oligar-
chies of Asia, either for their own guidance, or for
the relief of their memory, or for the instruction
of their disciples, seem in all cases to have ulti-
mately embodied their legal learning in a code ;
but the opportunity of increasing and consolidating
their influence was probably too tempting to be
resisted . Their complete monopoly of legal know-
ledge appears to have enabled them to put off
on the world collections, not so much of the rules
actually observed as of the rules which the priestly
order considered proper to be observed . The

Hindoo Code , called the Laws of Manu , which

is certainly a Brahmin compilation , undoubtedly
enshrines many genuine observances of the Hindoo
race, but the opinion of the best contemporary
orientalists is, that it does not, as a whole , repre-
sent a set of rules ever actually administered in
Hindostan . It is , in great part, an ideal picture
of that which , in the view of the Brahmins , ought
to be the law. It is consistent with human nature

and with the special motives of their authors,

16 ANCIENT CODES [CHAP. 1

that codes like that of Manu should pretend to

the highest antiquity and claim to have emanated
in their complete form from the Deity. Manu ,
according to Hindoo mythology, is an emanation
from the supreme God ; but the compilation
which bears his name, though its exact date is
not easily discovered, is , in point of the relative
progress of Hindoo jurisprudence, a recent pro-
duction .

Among the chief advantages which the Twelve

Tables and similar codes conferred on the societies
which obtained them, was the protection which
they afforded against the frauds of the privileged
oligarchy and also against the spontaneous deprava-
tion and debasement of the national institutions.
The Roman Code was merely an enunciation in
words of the existing customs of the Roman
people . Relatively to the progress of the Romans
in civilisation, it was a remarkably early code, and
it was published at a time when Roman society
had barely emerged from that intellectual con-
dition in which civil obligation and religious duty
are inevitably confounded . Now a barbarous
society practising a body of customs, is exposed
to some especial dangers which may be absolutely
fatal to its progress in civilisation . The usages
which a particular community is found to have
adopted in its infancy and in its primitive seats
are generally those which are on the whole best
suited to promote its physical and moral well-
being ; and, if they are retained in their integrity
until new social wants have taught new practices ,
the upward march of society is almost certain .
But unhappily there is a law of development which
CHAP. 1] THE HINDOO LAW 17

ever threatens to operate upon unwritten usage.

The customs are of course obeyed by multitudes
who are incapable of understanding the true
ground of their expediency , and who are therefore
left inevitably to invent superstitious reasons for
their permanence . A process then commences
which may be shortly described by saying that
usage which is reasonable generates usage which
is unreasonable. Analogy , the most valuable of
instruments in the maturity of jurisprudence, is
the most dangerous of snares in its infancy. Pro-
hibitions and ordinances, originally confined, for
good reasons, to a single description of acts, are
made to apply to all acts of the same class , because
a man menaced with the anger of the gods for
doing one thing, feels a natural terror in doing
any other thing which is remotely like it . After
one kind of food has been interdicted for sanitary
reasons, the prohibition is extended to all food

resembling it, though the resemblance occasionally

depends on analogies the most fanciful . So again,
a wise provision for insuring general cleanliness
dictates in time long routines of ceremonial
ablution ; and that division into classes which at
a particular crisis of social history is necessary
for the maintenance of the national existence

degenerates into the most disastrous and blighting

of all human institutions -Caste . The fate of the
Hindoo law is, in fact, the measure of the value of
the Roman Code . Ethnology shows us that the
Romans and the Hindoos sprang from the same
original stock, and there is indeed a striking re-
semblance between what appear to have been
their original customs . Even now, Hindoo juris-
2
18 ANCIENT CODES [CHAP. 1

prudence has a substratum of forethought and

sound judgment, but irrational imitation has
engrafted in it an immense apparatus of cruel
absurdities . From these corruptions the Romans
were protected by their code . It was compiled
while usage was still wholesome, and a hundred
years afterwards it might have been too late.
The Hindoo law has been to a great extent em-
bodied in writing, but , ancient as in one sense are
the compendia which still exist in Sanskrit, they
contain ample evidence that they were drawn up
after the mischief had been done . We are not of
course entitled to say that if the Twelve Tables
had not been published the Romans would have
been condemned to a civilisation as feeble and
perverted as that of the Hindoos, but thus much
at least is certain , that with their code they were
exempt from the very chance of so unhappy a
destiny .
 CHAPTER II

LEGAL FICTIONS

WHEN primitive law has once been embodied

in a Code, there is an end to what may be called
its spontaneous development. Henceforward the
changes effected in it, if effected at all, are effected
deliberately and from without . It is impossible
to suppose that the customs of any race or tribe
remained unaltered during the whole of the long
-in some instances the immense-interval be-

tween their declaration by a patriarchal monarch

and their publication in writing . It would be
unsafe too to affirm that no part of the alteration
was effected deliberately. But from the little

we know of the progress of law during this period ,

we are justified in assuming that set purpose
had the very smallest share in producing change.
Such innovations on the earliest usages as disclose
themselves appear to have been dictated by
feelings and modes of thought which, under our
present mental conditions, we are unable to

comprehend . A new era begins, however, with

the Codes. Wherever, after this epoch , we trace
the course of legal modification, we are able to
attribute it to the conscious desire of improve-
ment, or at all events of compassing objects other
than those which were aimed at in the primitive
times.
19
20 LEGAL FICTIONS [CHAP. II

It may seem at first sight that no general

propositions worth trusting can be elicited from
the history of legal systems subsequent to the
codes . The field is too vast. We cannot be
sure that we have included a sufficient number of

phenomena in our observations, or that we accu-

rately understand those which we have observed.
But the undertaking will be seen to be more
feasible , if we consider that after the epoch of
codes the distinction between stationary and pro-
gressive societies begins to make itself felt . It

is only with the progressive societies that we are

concerned, and nothing is more remarkable than
their extreme fewness . In spite of overwhelming
evidence, it is most difficult for a citizen of Western
Europe to bring thoroughly home to himself the
truth that the civilisation which surrounds him
is a rare exception in the history of the world.
The tone of thought common among us, all our
hopes , fears, and speculations , would be materially
affected, if we had vividly before us the relation
of the progressive races to the totality of human
life . It is indisputable that much the greatest
part of mankind has never shown a particle of
desire that its civil institutions should be improved
since the moment when external completeness
was first given to them by their embodiment
in some permanent record . One set of usages
has occasionally been violently overthrown and
superseded by another ; here and there a primitive
code, pretending to a supernatural origin, has
been greatly extended, and distorted into the
most surprising forms, by the perversity of
sacerdotal commentators ; but, except in a small
CHAP. II] PROGRESS ARRESTED 21

section of the world, there has been nothing like

the gradual amelioration of a legal system. There
has been material civilisation, but, instead of
the civilisation expanding the law, the law has
limited the civilisation . The study of races in
their primitive condition affords us some clue
to the point at which the development of certain
societies has stopped. We can see that Brah-
minical India has not passed beyond a stage
which occurs in the history of all the families
of mankind, the stage at which a rule of law is
not yet discriminated from a rule of religion.
The members of such a society consider that
the transgression of a religious ordinance should
be punished by civil penalties, and that the
violation of a civil duty exposes the delinquent
to divine correction . In China this point has
been passed, but progress seems to have been
there because the civil laws are co-
arrested,
extensive with all the ideas of which the race is
capable . The difference between the stationary
and progressive societies is , however, one of the
great secrets which inquiry has yet to penetrate .
Among partial explanations of it I venture to
place the considerations urged at the end of the
last chapter. It may further be remarked that
no one is likely to succeed in the investigation
who does not clearly realise that the stationary
condition of the human race is the rule , the pro-

gressive the exception . And another indispensable

condition of success is an accurate knowledge
of Roman law in all its principal stages . The
Roman jurisprudence has the longest known
history of any set of human institutions. The
22 LEGAL FICTIONS [CHAP. II

character of all the changes which it underwent

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

I confine myself in what follows to the pro-

gressive societies. With respect to them it may
be laid down that social necessities and social
opinion are always more or less in advance of

Law. We may come indefinitely near to the

closing of the gap between them, but it has a
perpetual tendency to reopen. Law is stable ;
the societies we are speaking of are progressive .
The greater or less happiness of a people depends
on the degree of promptitude with which the
gulf is narrowed .
A general proposition of some value may be
advanced with respect to the agencies by which
Law is brought into harmony with society.
These instrumentalities seem to me to be three

in number , Legal Fictions , Equity, and Legislation .

Their historical order is that in which I have

placed them. Sometimes two of them will be

seen operating together, and there are legal
systems which have escaped the influence of
one or other of them. But I know of no instance
in which the order of their appearance has been
changed or inverted . The early history of one
of them, Equity, is universally obscure, and
CHAP, II] FICTIONS 23

hence it may be thought by some that certain

isolated statutes , reformatory of the civil law,
are older than any equitable jurisdiction . My
own belief is that remedial Equity is everywhere
older than remedial Legislation ; but, should
this be not strictly true, it would only be necessary
to limit the proposition respecting their order
of sequence to the periods at which they exercised
a sustained and substantial influence in trans-
forming the original law.
I employ the word " fiction " in a sense con-
siderably wider than that in which English lawyers
are accustomed to use it, and with a meaning
much more extensive than that which belonged
to the Roman " fictiones." Fictio , in old Roman
law, is properly a term of pleading, and signifies
a false averment on the part of the plaintiff which
the defendant was not allowed to traverse ; such,

for example, as an averment that the plaintiff

was a Roman citizen, when in truth he was a
foreigner. The object of these " fictiones " was,
of course, to give jurisdiction, and they therefore
strongly resembled the allegations in the writs
of the English Queen's Bench and Exchequer,
by which those courts contrived to usurp the
jurisdiction of the Common Pleas :-the allegation
that the defendant was in custody of the king's
marshal, or that the plaintiff was the king's
debtor, and could not pay his debt by reason
of the defendant's default. But now I employ
the expression " Legal Fiction " to signify any
assumption which conceals, or affects to conceal ,
the fact that a rule of law has undergone altera-
tion, its letter remaining unchanged, its operation
24 LEGAL FICTIONS [CHAP. II

being modified . The words, therefore , include

the instances of fictions which I have cited from

the English and Roman law, but they embrace

much more, for I should speak both of the English
Case- law and of the Roman Responsa Prudentium
as resting on fictions . Both these examples will
be examined presently. The fact is in both cases
that the law has been wholly changed ; the
fiction is that it remains what it always was .
It is not difficult to understand why fictions in
all their forms are particularly congenial to the
infancy of society. They satisfy the desire for
improvement, which is not quite wanting, at
the same time that they do not offend the super-
stitious disrelish for change which is always
present . At a particular stage of social progress
they are invaluable expedients for overcoming
the rigidity of law, and, indeed, without one of
them, the Fiction of Adoption which permits
the family tie to be artificially created, it is
difficult to understand how society would ever
have escaped from its swaddling-clothes, and
taken its first steps towards civilisation . We
must, therefore , not suffer ourselves to be affected
by the ridicule which Bentham pours on legal
fictions wherever he meets them. To revile them

as merely fraudulent is to betray ignorance of

their peculiar office in the historical development
of law. But at the same time it would be equally
foolish to agree with those theorists who, dis-
cerning that fictions have had their uses , argue
that they ought to be stereotyped in our system .
There are several Fictions still exercising powerful
influence on English jurisprudence which could
CHAP. II] EQUITY 25

not be discarded without a severe shock to the

ideas, and considerable change in the language ,

of English practitioners ; but there can be no
doubt of the general truth that it is unworthy
of us to effect an admittedly beneficial object
by so rude a device as a legal fiction . I cannot
admit any anomaly to be innocent, which makes
the law either more difficult to understand or
harder to arrange in harmonious order. Now,
among other disadvantages, legal fictions are the
greatest of obstacles to symmetrical classification .
The rule of law remains sticking in the system ,
but it is a mere shell. It has been long ago
undermined, and a new rule hides itself under
its cover. Hence there is at once a difficulty in
knowing whether the rule which is actually
operative should be classed in its true or in its
apparent place, and minds of different casts will
differ as to the branch of the alternative which

ought to be selected . If the English law is ever

to assume an orderly distribution, it will be
necessary to prune away the legal fictions which,
in spite of some recent legislative improvements ,
are still abundant in it .
The next instrumentality by which the adapta-
tion of law to social wants is carried on I call

Equity, meaning by that word any body of rules

existing by the side of the original civil law,
founded on distinct principles and claiming in-
cidentally to supersede the civil law in virtue
of a superior sanctity inherent in those principles .
The Equity whether of the Roman Prætors or of
the English Chancellors, differs from the Fictions
which in each case preceded it, in that the inter-
26 LEGAL FICTIONS [CHAP. II

ference with law is open and avowed . On the

other hand, it differs from Legislation , the agent
of legal improvement which comes after it, in
that its claim to authority is grounded, not on
the prerogative of any external person or body,
not even on that of the magistrate who enunciates
it, but on the special nature of its principles, to
which it is alleged that all law ought to conform .
The very conception of a set of principles, invested
with a higher sacredness than those of the original
law and demanding application independently
of the consent of any external body, belongs to
a much more advanced stage of thought than
that to which legal fictions originally suggested
themselves .

Legislation, the enactments of a legislature

which, whether it take the form of an autocratic
prince or of a parliamentary assembly, is the
assumed organ of the entire society, is the last of
the ameliorating instrumentalities . It differs from
Legal Fictions just as Equity differs from them,
and it is also distinguished from Equity, as
deriving its authority from an external body or
person. Its obligatory force is independent of
its principles. The legislature, whatever be the
actual restraints imposed on it by public opinion ,
is in theory empowered to impose what obliga-
tions it pleases on the members of the community.
There is nothing to prevent its legislating in the
wantonness of caprice . Legislation may be dic-
tated by equity, if that last word be used to
indicate some standard of right and wrong to
which its enactments happen to be adjusted ;
but then these enactments are indebted for their
 LEGISLATION 27
CHAP. II]

binding force to the authority of the legislature

and not to that of the principles on which the
legislature acted ; and thus they differ from rules
of Equity , in the technical sense of the word ,
which pretend to a paramount sacredness entitling
them at once to the recognition of the courts even
without the concurrence of prince or parliamentary
assembly . It is the more necessary to note these
differences , because a student of Bentham would

be apt to confound Fictions , Equity , and Statute

Law under the single head of Legislation . They
all , he would say, involve law -making ; they
differ only in respect of the machinery by which
the new law is produced . That is perfectly true ,
and we must never forget it ; but it furnishes no
reason why we should deprive ourselves of so
convenient a term as Legislation in the special
sense . Legislation and Equity are disjoined in
the popular mind and in the minds of most
lawyers ; and it will never do to neglect the
distinction between them, however conventional ,
when important practical consequences follow
from it.
It would be easy to select from almost any
regularly developed body of rules examples of
legal fictions, which at once betray their true
character to the modern observer. In the two

instances which I proceed to cons der, the nature

of the expedient employed is not so readily de-
tected . The first authors of these fictions did not

perhaps intend to innovate , certainly did not wish

to be suspected of innovating . There are , more-
over, and always have been, persons who refuse
to see any fiction in the process , and conventional
28 LEGAL FICTIONS [CHAP. II

language bears out their refusal . No examples ,

therefore, can be better calculated to illustrate the
wide diffusion of legal fictions, and the efficiency
with which they perform their twofold office of
transforming a system of laws and of concealing
the transformation .

We in England are well accustomed to the ex-

tension, modification , and improvement of law by a
machinery which, in theory, is incapable of altering
one jot or one line of existing jurisprudence . The
process by which this virtual legislation is effected
is not so much insensible as unacknowledged .

With respect to that great portion of our legal

system which is enshrined in cases and recorded
in law reports , we habitually employ a double
language, and entertain , as it would appear, a
double and inconsistent set of ideas . When a
group of facts comes before an English Court for
adjudication, the whole course of the discussion

between the judge and the advocates assumes that

no question is , or can be, raised which will call for

the application of any principles but old ones , or

of any distinctions but such as have long since
been allowed . It is taken absolutely for granted
that there is somewhere a rule of known law which
will cover the facts of the dispute now litigated ,
and that, if such a rule be not discovered , it is
only that the necessary patience, knowledge , or
acumen is not forthcoming to detect it . Yet the
moment the judgment had been rendered and
reported, we slide unconsciously or unavowedly
into a new language and a new train of thought .
We now admit that the new decision has modified
the law. The rules applicable have , to use the
CHAP. II] AN OLDEN THEORY 29

very inaccurate expression sometimes employed,

become more elastic . In fact they have been
changed . A clear addition has been made to the
precedents, and the canon of law elicited by com-
paring the precedents is not the same with that
which would have been obtained if the series of
cases had been curtailed by a single example .
The fact that the old rule has been repealed , and
that a new one has replaced it, eludes us, because

we are not in the habit of throwing into precise

language the legal formulas which we derive from
the precedents , so that a change in their tenor is
not easily detected unless it is violent and glaring.
I shall not now pause to consider at length the
causes which have led English lawyers to acquiesce
in these curious anomalies. Probably it will be
found that originally it was the received doctrine
that somewhere , in nubibus or in gremio magis-
tratuum, there existed a complete , coherent , sym-
metrical body of English law, of an amplitude
sufficient to furnish principles which would apply
to any conceivable combination of circumstances .
The theory was at first much more thoroughly
believed in than it is now, and indeed it may have
had a better foundation . The judges of the
thirteenth century may have really had at their
command a mine of law unrevealed to the bar

and to the lay-public , for there is some reason for

suspecting that in secret they borrowed freely,
though not always wisely, from current compendia
of the Roman and Canon laws . But that store-

house was closed as soon as the points decided

at Westminster Hall became numerous enough
to supply a basis for a substantive system of
30 LEGAL FICTIONS [CHAP. II

jurisprudence ; and now for centuries English

practitioners have so expressed themselves as to
convey the paradoxical proposition that, except
by Equity and Statute law, nothing has been
added to the basis since it was first constituted .
We do not admit that our tribunals legislate ; we

imply that they have never legislated ; and yet

we maintain that the rules of the English common
law, with some assistance from the Court of

Chancery and from Parliament, are coextensive

with the complicated interests of modern society .
A body of law bearing a very close and very
instructive resemblance to our case-law in those

particulars which I have noticed , was known to

the Romans under the name of the Responsa
""
Prudentium , the answers of the learned in the
law." The form of these Responses varied a

good deal at different periods of the Roman

jurisprudence , but throughout its whole course
they consisted of explanatory glosses on authori-
tative written documents , and at first they were
exclusively collections of opinions interpretative
of the Twelve Tables. As with us, all legal
language adjusted itself to the assumption that
the text of the old Code remained unchanged .
There was the express rule . It overrode all
glosses and comments , and no one openly admitted
that any interpretation of it, however eminent
the interpreter, was safe from revision on appeal
to the venerable texts. Yet in point of fact,

Books of Responses bearing the names of leading

jurisconsults obtained an authority at least equal
to that of our reported cases, and constantly
modified, extended , limited, or practically over-
CHAP. 11] ANSWERS OF THE LEARNED 31

ruled the provisions of the Decemviral law. The

authors of the new jurisprudence during the whole
progress of its formation professed the most
sedulous respect for the letter of the Code . They
were merely explaining it , deciphering it , bringing
out its full meaning ; but then, in the result, by
piecing texts together, by adjusting the law to
states of fact which actually presented themselves
and by speculating on its possible application to
others which might occur, by introducing prin-
ciples of interpretation derived from the exegesis
of other written documents which fell under their

observation, they educed a vast variety of canons

which had never been dreamed of by the compilers
of the Twelve Tables and which were in truth
rarely or never to be found there. All these

treatises of the jurisconsults claimed respect on

the ground of their assumed conformity with the
Code, but their comparative authority depended
on the reputation of the particular jurisconsults
who gave them to the world . Any name of uni-
versally acknowledged greatness clothed a Book
of Responses with a binding force hardly less than
that which belonged to enactments of the legisla-
ture ; and such a book in its turn constituted a
new foundation on which a further body of

jurisprudence might rest . The responses of the

early lawyers were not however published , in the
modern sense, by their author. They were re-
corded and edited by his pupils, and were not
therefore in all probability arranged according to
any scheme of classification . The part of the

students in these publications must be carefully

noted, because the service they rendered to their
32 LEGAL FICTIONS [CHAP. 11

teacher seems to have been generally repaid by

his sedulous attention to the pupils' education .
The educational treatises called Institutes or
Commentaries, which are a later fruit of the duty
then recognised , are among the most remarkable
features of the Roman system . It was apparently
in these Institutional works , and not in the books
intended for trained lawyers , that the jurisconsults
gave to the public their classifications and their
proposals for modifying and improving the tech-
nical phraseology .
In comparing the Roman Responsa Prudentium
with their nearest English counterpart , it must
be carefully borne in mind that the authority by
which this part of the Roman jurisprudence was
expounded was not the bench, but the bar. The

decision of a Roman tribunal, though conclusive

in the particular case, had no ulterior authority
except such as was given by the professional
repute of the magistrate who happened to be
in office for the time . Properly speaking, there
was no institution at Rome during the republic
analogous to the English Bench, the Chambers
of Imperial Germany, or the Parliaments of
Monarchical France . There were magistrates in-
deed , invested with momentous judicial functions
in their several departments , but the tenure of
the magistracies was but for a single year, so that
they are much less aptly compared to a permanent
judicature than to a cycle of offices briskly circu-
lating among the leaders of the bar. Much might
be said on the origin of a condition of things
which looks to us like a startling anomaly, but
which was in fact much more congenial than our
CHAP. II] ANSWERS OF THE LEARNED 33

own system to the spirit of ancient societies ,

tending, as they always did, to split into distinct
orders which, however exclusive themselves , toler-
ated no professional hierarchy above them .
It is remarkable that this system did not
produce certain effects which might on the whole
have been expected from it . It did not, for
example, popularise the Roman law, -it did not,
as in some of the Greek republics , lessen the effort
of intellect required for the mastery of science,
although its diffusion and authoritative exposition
were opposed by no artificial barriers. On the
contrary, if it had not been for the operation
of a separate set of causes, there were strong
probabilities that the Roman jurisprudence would
have become as minute, technical, and difficult as
any system which has since prevailed . Again, a
consequence which might still more naturally have
been looked for , does not appear at any time to
have exhibited itself. The jurisconsults, until the
liberties of Rome were overthrown, formed a class
which was quite undefined and must have fluctu-
ated greatly in numbers ; nevertheless, there does
not seem to have existed a doubt as to the particu-
lar individuals whose opinion , in their generation ,
was conclusive on the cases submitted to them.

The vivid pictures of a leading jurisconsult's daily

practice which abound in Latin literature—the
clients from the country flocking to his ante-
chamber in the early morning, and the students
standing round with their note-books to record
the great lawyer's replies - are seldom or never
identified at any given period with more than one
or two conspicuous names . Owing too to the
3
34 LEGAL FICTIONS [CHAP. 11

direct contact of the client and the advocate, the

Roman people itself seems to have been always
alive to the rise and fall of professional reputation ,
and there is abundance of proof, more particularly
in the well- known oration of Cicero , " Pro Muræna ,"
that the reverence of the commons for forensic suc-
cess was apt to be excessive rather than deficient.
We cannot doubt that the peculiarities which
have been noted in the instrumentality by which
the development of the Roman law was first
effected, were the source of its characteristic
excellence, its early wealth in principles. The

growth and exuberance of principle was fostered ,

in part, by the competition among the expositors
of the law, an influence wholly unknown where
there exists a Bench, the depositaries intrusted
by king or commonwealth with the prerogative
of justice . But the chief agency, no doubt, was
the uncontrolled multiplication of cases for legal
decision. The state of facts which caused genuine
perplexity to a country client was not a whit
more entitled to form the basis of the juriscon-
sult's Response , or legal decision , than a set of
hypothetical circumstances propounded by an
ingenious pupil . All combinations of fact were
on precisely the same footing, whether they were
real or imaginary . It was nothing to the juris-
consult that his opinion was overruled for the
moment by the magistrate who adjudicated on
his client's case, unless that magistrate happened
to rank above him in legal knowledge or the
esteem of his profession . I do not , indeed , mean
it to be inferred that he would wholly omit to
consider his client's advantage, for the client was
CHAP. II] ANSWERS OF THE LEARNED 35

in earlier times the great lawyer's constituent and

at a later period his paymaster, but the main road
to the rewards of ambition lay through the good
opinion of his order, and it is obvious that under
such a system as I have been describing this was
much more likely to be secured by viewing each
case as an illustration of a great principle, or an
exemplification of a broad rule, than by merely
shaping it for an insulated forensic triumph. It
is evident that powerful influence must have been
exercised by the want of any distinct check on
the suggestion or invention of possible questions .
Where the data can be multiplied at pleasure, the
facilities for evolving a general rule are immensely
increased. As the law is administered among
ourselves, the judge cannot travel out of the sets
of facts exhibited before him or before his pre-
decessors. Accordingly each group of circum-
stances which is adjudicated upon receives, to
employ a Gallicism, a sort of consecration . It

acquires certain qualities which distinguish it

from every other case genuine or hypothetical .
But at Rome, as I have attempted to explain,
there was nothing resembling a Bench or Chamber
of judges ; and therefore no combination of facts
possessed any particular value more than another.
When a difficulty came for opinion before the
jurisconsult, there was nothing to prevent a person
endowed with a nice perception of analogy from
at once proceeding to adduce and consider an
entire class of supposed questions with which a
particular feature connected it. Whatever were

the practical advice given to the client, the

responsum treasured up in the note-books of
 L ONS
36 LEGA FICTI [CHAP . II

listening pupils would doubtless contemplate the

circumstances as governed by a great principle, or
included in a sweeping rule . Nothing like this
has ever been possible among ourselves , and it
should be acknowledged that in many criticisms
passed on the English law the manner in which
it has been enunciated seems to have been lost

sight of. The hesitation of our courts in declaring

principles may be much more reasonably attributed
to the comparative scantiness of our precedents ,
voluminous as they appear to him who is ac-
quainted with no other system , than to the temper
of our judges. It is true that in the wealth of
legal principle we are considerably poorer than
several modern European nations . But they, it
must be remembered , took the Roman jurispru-
dence for the foundation of their civil institutions .
They built the débris of the Roman law into their
walls ; but in the materials and workmanship of
the residue there is not much which distinguishes
it favourably from the structure erected by the
English judicature .
The period of Roman freedom was the period
during which the stamp of a distinctive character
was impressed on the Roman jurisprudence ; and
through all the earlier part of it , it was by the
Responses of the jurisconsults that the develop-
ment of the law was mainly carried on . But as

we approach the fall of the republic there are

signs that the Responses are assuming a form
which must have been fatal to their farther
expansion . They are becoming systematised and
reduced into compendia. Q. Mucius Scævola, the
Pontifex, is said to have published a manual of
CHAP. II] LATER JURISCONSULTS 37

the entire Civil Law, and there are traces in the

writings of Cicero of growing disrelish for the old
methods, as compared with the more active in-
struments of legal innovation . Other agencies had
in fact by this time been brought to bear on the
law. The Edict , or annual proclamation of the

Prætor, had risen into credit as the principal

engine of law reform, and L. Cornelius Sylla , by
causing to be enacted the great group of statutes
called the Leges Cornelia, had shown what rapid
and speedy improvements can be effected by
direct legislation . The final blow to the Responses
was dealt by Augustus, who limited to a few
leading jurisconsults the right of giving binding
opinions on cases submitted to them, a change
which, though it brings us nearer the ideas of
the modern world, must obviously have altered
fundamentally the characteristics of the legal pro-
fession and the nature of its influence on Roman

law. At a later period another school of juriscon-

sults arose, the great lights of jurisprudence for all
time. But Ulpian and Paulus, Gaius and Papinian ,
were not authors of Responses. Their works were
regular treatises on particular departments of the
law, more especially on the Prætor's Edict.
The Equity of the Romans and the Prætorian
Edict by which it was worked into their system ,
will be considered in the next chapter. Of the
Statute Law it is only necessary to say that it
was scanty during the republic, but became very
voluminous under the empire. In the youth and
infancy of a nation it is a rare thing for the legis-
lature to be called into action for the general
reform of private law. The cry of the people
38 LEGAL FICTIONS [CHAP . II

is not for change in the laws , which are usually

valued above their real worth, but solely for their
pure, complete , and easy administration ; and
recourse to the legislative body is generally directed
to the removal of some great abuse, or the decision
of some incurable quarrel between classes and
dynasties . There seems in the minds of the
Romans to have been some association between

the enactment of a large body of statutes and the

settlement of society after a great civil commotion .
Sylla signalised his reconstitution of the republic
by the Leges Cornelia ; Julius Cæsar contemplated
vast additions to the Statute Law ; Augustus
caused to be passed the all-important group of
Leges Juliæ ; and among later emperors the most
active promulgators of constitutions are princes
who, like Constantine , have the concerns of the
world to readjust . The true period of Roman
Statute Law does not begin till the establishment
of the empire. The enactments of the emperors ,
clothed at first in the pretence of popular sanction ,
but afterwards emanating undisguisedly from the
imperial prerogative , extend in increasing massive-
ness from the consolidation of Augustus's power

to the publication of the Code of Justinian . It

will be seen that even in the reign of the second
emperor a considerable approximation is made
to that condition of the law and that mode of
administering it with which we are all familiar.
A statute law and a limited board of expositors
have arisen into being ; a permanent court of
appeal and a collection of approved commentaries
will very shortly be added ; and thus we are
brought close on the ideas of our own day.
 CHAPTER III

LAW OF NATURE AND EQUITY

THE theory of a set of legal principles entitled by

their intrinsic superiority to supersede the older
law, very early obtained currency both in the
Roman State and in England . Such a body of
principles, existing in any system, has in the
foregoing chapters been denominated Equity, a
term which, as will presently be seen, was one
(though only one) of the designations by which
this agent of legal change was known to the Roman
jurisconsults. The jurisprudence of the Court
of Chancery, which bears the name of Equity in
England, could only be adequately discussed in a
separate treatise . It is extremely complex in its
texture , and derives its materials from several
heterogeneous sources. The early ecclesiastical
chancellors contributed to it , from the Canon Law,
many of the principles which lie deepest in its
structure. The Roman law, more fertile than
the Canon Law in rules applicable to secular
disputes, was not seldom resorted to by a later
generation of Chancery judges , amid whose re-
corded dicta we often find entire texts from the
Corpus Juris Civilis imbedded, with their terms
unaltered, though their origin is never acknow-
ledged . Still more recently, and particularly at
the middle and during the latter half of the
39
40 LAW OF NATURE AND EQUITY [CHAP. III

eighteenth century, the mixed systems of juris-

prudence and morals constructed by the publicists
of the Low Countries appear to have been much
studied by English lawyers, and from the chan-
cellorship of Lord Talbot to the commencement
of Lord Eldon's chancellorship these works had
considerable effect on the rulings of the Court
of Chancery. The system, which obtained its
ingredients from these various quarters, was
greatly controlled in its growth by the necessity
imposed on it of conforming itself to the analogies
of the common law, but it has always answered
the description of a body of comparatively novel
legal principles claiming to override the older

jurisprudence of the country on the strength of

an intrinsic ethical superiority.
The Equity of Rome was a much simpler
structure , and its development from its first
appearance can be much more easily traced.
Both its character and its history deserve attentive
examination . It is the root of several concep-
tions which have exercised profound influence on
human thought, and through human thought have
seriously affected the destinies of mankind.
The Romans described their legal system as
consisting of two ingredients . " All nations ,"

says the Institutional Treatise published under the

authority of the Emperor Justinian , who are
ruled by laws and customs, are governed partly
by their own particular laws , and partly by those
laws which are common to all mankind . The

law which a people enacts is called the Civil Law

of that people, but that which natural reason
appoints for all mankind is called the Law of
CHAP. III] EQUITY 4I

Nations, because all nations use it. "

The part of
the law " which natural reason appoints for all
mankind " was the element which the Edict of the

Prætor was supposed to have worked into Roman

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

The most superficial student of Roman history

must be struck by the extraordinary degree in
which the fortunes of the republic were affected by
the presence of foreigners, under different names,
on her soil. The causes of this immigration are
discernible enough at a later period, for we can
readily understand why men of all races should
flock to the mistress of the world ; but the same
phenomenon of a large population of foreigners
and denizens meets us in the very earliest records
of the Roman State . No doubt, the instability
of society in ancient Italy, composed as it was in
great measure of robber tribes , gave men consider-
able inducement to locate themselves in the

territory of any community strong enough to

protect itself and them from external attack, even
though protection should be purchased at the cost
of heavy taxation, political disfranchisement , and
much social humiliation . It is probable, however,
that this explanation is imperfect, and that it
could only be completed by taking into account
42 LAW OF NATURE AND EQUITY [CHAP. III

those active commercial relations which, though

they are little reflected in the military traditions
of the republic, Rome appears certainly to have
had with Carthage and with the interior of Italy
in pre-historic times. Whatever were the cir-
cumstances to which it was attributable, the
foreign element in the commonwealth determined
the whole course of its history, which , at all its
stages, is little more than a narrative of conflicts
between a stubborn nationality and an alien
population . Nothing like this has been seen in
modern times ; on the one hand, because modern
European communities have seldom or never
received any accession of foreign immigrants which
was large enough to make itself felt by the bulk
of the native citizens , and on the other, because
modern states, being held together by allegiance
to a king or political superior, absorb considerable
bodies of immigrant settlers with a quickness
unknown to the ancient world, where the original
citizens of a commonwealth always believed them-
selves to be united by kinship in blood, and re-
sented a claim to equality of privilege as a usurpa-

tion of their birthright . In the early Roman

republic the principle of the absolute exclusion of
foreigners pervaded the Civil Law no less than the
constitution . The alien or denizen could have no

share in any institution supposed to be coeval with

the State . He could not have the benefit of

Quiritarian law. He could not be a party to the

nexum which was at once the conveyance and the
contract of the primitive Romans . He could not
sue by the Sacramental Action , a mode of litigation
of which the origin mounts up to the very infancy
CHAP. III] LAW OF NATIONS 43

of civilisation . Still, neither the interest nor the

security of Rome permitted him to be quite
outlawed. All ancient communities ran the risk

of being overthrown by a very slight disturbance

of equilibrium , and the mere instinct of self-
preservation would force the Romans to devise
some method of adjusting the rights and duties
of foreigners, who might otherwise-and this was
a danger of real importance in the ancient world-
have decided their controversies by armed strife.
Moreover, at no period of Roman history was
foreign trade entirely neglected . It was therefore
probably half as a measure of police and half in
furtherance of commerce that jurisdiction was first
assumed in disputes to which the parties were
either foreigners or a native and a foreigner. The
assumption of such a jurisdiction brought with
it the immediate necessity of discovering some
principles on which the questions to be adjudicated
upon could be settled , and the principles applied
to this object by the Roman lawyers were emi-
nently characteristic of the time . They refused ,
as I have said before, to decide the new cases by
pure Roman Civil Law. They refused , no doubt
because it seemed to involve some kind of degrada-
tion, to apply the law of the particular State from
which the foreign litigant came . The expedient
to which they resorted was that of selecting the
rules of law common to Rome and to the different
Italian communities in which the immigrants were
born. In other words, they set themselves to form
a system answering to the primitive and literal
meaning of Jus Gentium, that is, Law common to
all Nations . Jus Gentium was, in fact, the sum
 44 LAW OF NATURE AND EQUITY [CHAP. III

of the common ingredients in the customs of the

old Italian tribes, for they were all the nations whom
the Romans had the means of observing, and who
sent successive swarms of immigrants to Roman
soil . Whenever a particular usage was seen to be
practised by a large number of separate races in
common, it was set down as part of the Law
common to all Nations , or Jus Gentium . Thus,
although the conveyance of property was certainly
accompanied by very different forms in the differ-
ent commonwealths surrounding Rome , the actual
transfer, tradition , or delivery of the article in-
tended to be conveyed was a part of the ceremonial
in all of them . It was, for instance , a part, though
a subordinate part, in the Mancipation or con-
veyance peculiar to Rome. Tradition , therefore,
being in all probability the only common ingredient
in the modes of conveyance which the jurisconsults
had the means of observing, was set down as an
institution Juris Gentium, or rule of the Law
common to all Nations . A vast number of other
observances were scrutinised with the same result.
Some common characteristic was discovered in all

of them , which had a common object, and this

characteristic was classed in the Jus Gentium .
The Jus Gentium was accordingly a collection of
rules and principles , determined by observation
to be common to the institutions which prevailed
among the various Italian tribes .

The circumstances of the origin of the Jus

Gentium are probably a sufficient safeguard
against the mistake of supposing that the Roman
lawyers had any special respect for it . It was the
fruit in part of their disdain for all foreign law, and
CHAP. III] LAW OF NATIONS 45

in part of their disinclination to give the foreigner

the advantage of their own indigenous Jus Civile .
It is true that we, at the present day, should
probably take a very different view of the Jus
Gentium, if we were performing the operation
which was effected by the Roman jurisconsults .
We should attach some vague superiority or pre-
cedence to the element which we had thus dis-
cerned underlying and pervading so great a variety
of usage . We should have a sort of respect for
rules and principles so universal. Perhaps we
should speak of the common ingredient as being
of the essence of the transaction into which it

entered, and should stigmatise the remaining

apparatus of ceremony, which varied in different
communities, as adventitious and accidental. Or
it may be, we should infer that the races which we
were comparing once obeyed a great system of
common institutions of which the Jus Gentium
was the reproduction , and that the complicated
usages of separate commonwealths were only
corruptions and depravations of the simpler
ordinances which had once regulated their primi-
tive state . But the results to which modern ideas
conduct the observer are, as nearly as possible ,

the reverse of those which were instinctively

brought home to the primitive Roman . What
we respect or admire , he disliked or regarded with
jealous dread . The parts of jurisprudence which
he looked upon with affection were exactly those
which a modern theorist leaves out of consideration
as accidental and transitory ; the solemn gestures
of the mancipation ; the nicely adjusted questions
and answers of the verbal contract ; the endless
46 LAW OF NATURE AND EQUITY [CHAP. III

formalities of pleading and procedure . The Jus

Gentium was merely a system forced on his
attention by a political necessity . He loved it
as little as he loved the foreigners from whose
institutions it was derived and for whose benefit

it was intended . A complete revolution in his

ideas was required before it could challenge his
respect, but so complete was it when it did occur,
that the true reason why our modern estimate of
the Jus Gentium differs from that which has just
been described, is that both modern jurisprudence
and modern philosophy have inherited the matured
views of the later jurisconsults on this subject .
There did come a time when, from an ignoble
appendage of the Jus Civile, the Jus Gentium
came to be considered a great though as yet
imperfectly developed model to which all law
ought as far as possible to conform. This crisis
arrived when the Greek theory of a Law of Nature
was applied to the practical Roman administration
of the Law common to all Nations.

The Jus Naturale , or Law of Nature , is simply

the Jus Gentium or Law of Nations seen in the
light of a peculiar theory. An unfortunate at-
tempt to discriminate them was made by the
jurisconsult Ulpian , with the propensity to dis-
tinguish characteristic of a lawyer, but the lan-
guage of Gaius , a much higher authority, and the
passage quoted before from the Institutes, leave
no room for doubt , that the expressions were
practically convertible . The difference between
them was entirely historical, and no distinction in
essence could ever be established between them.
It is almost unnecessary to add that the confusion
CHAP. III] NATURE 47

between Jus Gentium , or Law common to all

Nations, and international law is entirely modern .
The classical expression for international law is
Jus Feciale , or the law of negotiation and diplo-
macy. It is, however, unquestionable that indis-
tinct impressions as to the meaning of Jus Gentium
had considerable share in producing the modern
theory that the relations of independent states
are governed by the Law of Nature .
It becomes necessary to investigate the Greek
conceptions of Nature and her law. The word
púous which was rendered in the Latin natura
and our nature, denoted beyond all doubt originally
the material universe, but it was the material
universe contemplated under an aspect which—
such is our intellectual distance from those times
-it is not very easy to delineate in modern lan-
guage. Nature signified the physical world re-
garded as the result of some primordial element
or law. The oldest Greek philosophers had been
accustomed to explain the fabric of creation
as the manifestation of some single principle

which they variously asserted to be movement ,

fire, moisture, or generation . In its simplest
and most ancient sense, Nature is precisely the
physical universe looked upon in this way as
the manifestation of a principle . Afterwards , the
later Greek sects, returning to a path from which
the greatest intellects of Greece had meanwhile
strayed, added the moral to the physical world
in the conception of Nature. They extended
the term till it embraced not merely the visible
creation, but the thoughts, observances, and
aspirations of mankind. Still, as before, it was
 E TY
W T UR D UI P
48 LA OF NA AN EQ [CHA . III

not solely the moral phenomena of human society

which they understood by Nature, but these
phenomena considered as resolvable into some
general and simple laws.
Now, just as the oldest Greek theorists sup-
posed that the sports of chance had changed
the material universe from its simple primitive
form into its present heterogeneous condition,
so their intellectual descendants imagined that
but for untoward accident the human race would

have conformed itself to simpler rules of conduct

and a less tempestuous life . To live according to
nature came to be considered as the end for which
man was created , and which the best men were
bound to compass . To live according to nature
was to rise above the disorderly habits and gross
indulgences of the vulgar to higher laws of action
which nothing but self-denial and self-command
would enable the aspirant to observe. It is
notorious that this proposition-live according to
nature was the sum of the tenets of the famous

Stoic philosophy . Now on the subjugation of

Greece that philosophy made instantaneous pro-
gress in Roman society . It possessed natural
fascinations for the powerful class who , in theory
at least, adhered to the simple habits of the
ancient Italian race, and disdained to surrender
themselves to the innovations of foreign fashions .
Such persons began immediately to affect the
Stoic precepts of life according to nature-an
affectation all the more grateful, and, I may add,
all the more noble, from its contrast with the
unbounded profligacy which was being diffused
through the imperial city by the pillage of the
CHAP. III] THE STOICS 49

world and by the example of its most luxurious

races. In the front of the disciples of the new
Greek school, we might be sure, even if we did
not know it historically, that the Roman lawyers
figured. We have abundant proof that, there
being substantially but two professions in the
Roman republic, the military men were generally
identified with the party of movement, but the
lawyers were universally at the head of the party
of resistance.
The alliance of the lawyers with the Stoic
philosophers lasted through many centuries. Some
of the earliest names in the series of renowned
jurisconsults are associated with Stoicism , and
ultimately we have the golden age of Roman
jurisprudence fixed by general consent as the
era of the Antonine Cæsars, the most famous
disciples to whom that philosophy has given a
rule of life . The long diffusion of these doctrines
among the members of a particular profession
was sure to affect the art which they practised
and influenced . Several positions which we find
in the remains of the Roman jurisconsults are
scarcely intelligible, unless we use the Stoic tenets
as our key ; but at the same time it is a serious ,
though a very common, error to measure the
influence of Stoicism on Roman law by counting
up the number of legal rules which can be con-
fidently affiliated on Stoical dogmas. It has
often been observed that the strength of Stoicism
resided not in its canons of conduct, which were
often repulsive or ridiculous , but in the great
though vague principle which it inculcated of
resistance to passion . Just in the same way
4
50 LAW OF NATURE AND EQUITY [CHAP. III

the influence on jurisprudence of the Greek

theories, which had their most distinct expression
in Stoicism, consisted not in the number of
specific positions which they contributed to Roman
law, but in the single fundamental assumption
which they lent to it . After Nature had become
a household word in the mouths of the Romans ,
the belief gradually prevailed among the Roman
lawyers that the old Jus Gentium was in fact
the lost code of Nature, and that the Prætor in
framing an Edictal jurisprudence on the principles
of the Jus Gentium was gradually restoring a type
from which law had only departed to deteriorate .
The inference from this belief was immediate

that it was the Prætor's duty to supersede the

Civil Law as much as possible by the Edict,
to revive as far as might be the institutions by
which Nature had governed man in the primitive
state . Of course there were many impediments
to the amelioration of law by this agency. There
may have been prejudices to overcome even in
the legal profession itself, and Roman habits were
far too tenacious to give way at once to mere
philosophical theory. The indirect methods by
which the Edict combated certain technical
anomalies, show the caution which its authors
were compelled to observe, and down to the very
days of Justinian there was some part of the old
law which had obstinately resisted its influence .
But on the whole, the progress of the Romans
in legal improvement was astonishingly rapid as
soon as stimulus was applied to it by the theory
of Natural Law. The ideas of simplification and
generalisation had always been associated with
CHAP. III] EQUITY 51

the conception of Nature ; simplicity, symmetry,

and intelligibility came therefore to be regarded
as the characteristics of a good legal system, and
the taste for involved language, multiplied cere-
monials, and useless difficulties disappeared alto-
gether. The strong will and unusual opportunities
of Justinian were needed to bring the Roman
law to its existing shape, but the ground-plan of
the system had been sketched long before the
imperial reforms were effected .
What was the exact point of contact between
the old Jus Gentium and the Law of Nature ? I
think that they touch and blend through Equitas,
or Equity in its original sense ; and here we seem
to come to the first appearance in jurisprudence
of this famous term Equity. In examining an
expression which has so remote an origin and
so long a history as this, it is always safest to
penetrate, if possible , to the simple metaphor
or figure which at first shadowed forth the con-
ception. It has generally been supposed that
Equitas is the equivalent of the Greek ἰσότης,
i.e., the principle of equal or proportionate dis-
tribution . The equal division of numbers or
physical magnitudes is doubtless closely entwined
with our perceptions of justice ; there are few
associations which keep their ground in the mind
so stubbornly or are dismissed from it with such
difficulty by the deepest thinkers . Yet in tracing
the history of this association , it certainly does
not seem to have suggested itself to very early
thought, but is rather the offspring of a com-
paratively late philosophy. It is remarkable too
that the " equality " of laws on which the Greek
52 LAW OF NATURE AND EQUITY [CHAP. III

democracies prided themselves- that equality

which, in the beautiful drinking song of Callis-
tratus, Harmodius and Aristogiton are said to
have given to Athens- had little in common with
the " equity " of the Romans. The first was an
equal administration of civil laws among the
citizens , however limited the class of citizens

might be ; the last implied the applicability of

a law, which was not civil law, to a class which
did not necessarily consist of citizens . The first
excluded a despot ; the last included foreigners ,
and for some purposes slaves . On the whole,
I should be disposed to look in another direction
for the germ of the Roman " Equity." The
Latin word æquus " carries with it more dis-
tinctly than the Greek "toos" the sense of

levelling. Now its levelling tendency was exactly

the characteristic of the Jus Gentium , which
would be most striking to a primitive Roman.
The pure Quiritarian law recognised a multitude
of arbitrary distinctions between classes of men
and kinds of property : the Jus Gentium , generalised
from a comparison of various customs, neglected
the Quiritarian divisions. The old Roman law
established , for example, a fundamental difference
66
between Agnatic " and " Cognatic " relation-

ship, that is, between the Family considered as

based upon common subjection to patriarchal
authority and the Family considered (in con-
formity with modern ideas) as united through
the mere fact of a common descent . This dis-

tinction disappears in the " law common to all

nations," as also does the difference between the
archaic forms of property, Things " Mancipi
CHAP. III] EQUITY 53

and Things nec Mancipi ." The neglect of

demarcations and boundaries seems to me, there-
fore, the feature of the Jus Gentium which was
depicted in Æquitas . I imagine that the word
was at first a mere description of that constant
levelling or removal of irregularities which went on
wherever the prætorian system was applied to
the cases of foreign litigants . Probably no colour
of ethical meaning belonged at first to the ex-
pression ; nor is there any reason to believe
that the process which it indicated was otherwise
than extremely distasteful to the primitive Roman
mind .

On the other hand, the feature of the Jus

Gentium which was presented to the apprehension
of a Roman by the word Equity, was exactly the
first and most vividly realised characteristic of
the hypothetical state of nature . Nature implied 1
symmetrical order, first in the physical world,
and next in the moral, and the earliest notion
of order doubtless involved straight lines , even
surfaces, and measured distances. The same sort
of picture or figure would be unconsciously before
the mind's eye, whether it strove to form the
outlines of the supposed natural state, or whether
it took in at a glance the actual administration
of the " law common to all nations " ; and all
we know of primitive thought would lead us to
conclude that this ideal similarity would do
much to encourage the belief in an identity of
the two conceptions . But then, while the Jus
Gentium had little or no antecedent credit at
Rome, the theory of a Law of Nature came in
surrounded with all the prestige of philosophical
54 LAW OF NATURE AND EQUITY [CHAP. III

authority, and invested with the charms of

association with an elder and more blissful con-
dition of the race. It is easy to understand how

the difference in the point of view would affect

the dignity of the term which at once described
the operation of the old principles and the results
of the new theory . Even to modern ears it is
not at all the same thing to describe a process as
one of " levelling " and to call it the " correction
of anomalies ," though the metaphor is precisely
the same. Nor do I doubt that, when once

Equitas was understood to convey an allusion

to the Greek theory, associations which grew
out of the Greek notion of loórns began to cluster
round it. The language of Cicero renders it more
than likely that this was so , and it was the first
stage of a transmutation of the conception of
Equity, which almost every ethical system which
has appeared since those days has more or less
helped to carry on .
Something must be said of the formal instru-
mentality by which the principles and distinctions
associated, first with the Law common to all
nations , and afterwards with the Law of Nature,
were gradually incorporated with the Roman law.
At the crisis of primitive Roman history which is
marked by the expulsion of the Tarquins, a change
occurred which has its parallel in the early annals
of many ancient states, but which had little in

common with those passages of political affairs

which we now term revolutions . It may best be
described by saying that the monarchy was put
into commission .The powers heretofore accu-
mulated in the hands of a single person were
CHAP. III] THE PRÆTOR 55

parcelled out among a number of elective function-

aries, the very name of the kingly office being

retained and imposed on a personage known
subsequently as the Rex Sacrorum or Rex Sacri-
ficulus. As part of the change, the settled duties
of the supreme judicial office devolved on the
Prætor, at the time the first functionary in the
commonwealth , and together with these duties
was transferred the undefined supremacy over law
and legislation which always attached to ancient
sovereigns, and which is not obscurely related to
the patriarchal and heroic authority they had once
enjoyed . The circumstances of Rome gave great
importance to the more indefinite portion of the
functions thus transferred, as with the establish-
ment of the republic began that series of recurrent
trials which overtook the state, in the difficulty
of dealing with a multitude of persons who, not
coming within the technical description of in-
digenous Romans, were nevertheless permanently
located within Roman jurisdiction . Controversies
between such persons , or between such persons and
native-born citizens, would have remained without
the pale of the remedies provided by Roman law,
if the Prætor had not undertaken to decide them ,
and he must soon have addressed himself to the

more critical disputes which in the extension of

commerce arose between Roman subjects and
avowed foreigners . The great increase of such
cases in the Roman Courts about the period of the
first Punic War is marked by the appointment
of a special Prætor, known subsequently as the
Prætor Peregrinus, who gave them his undivided
attention . Meantime, one precaution of the
I
 RE Y
56 LAW OF NATU AND EQUIT [CHAP . III

Roman people against the revival of oppression ,

had consisted in obliging every magistrate whose
duties had any tendency to expand their sphere,
to publish, on commencing his year of office , an
Edict or proclamation in which he declared the
manner in which he intended to administer his
department. The Prætor fell under the rule with
other magistrates ; but as it was necessarily
impossible to construct each year a separate
system of principles , he seems to have regularly
republished his predecessor's Edict with such
additions and changes as the exigency of the
moment or his own views of the law compelled him
to introduce . The Prætor's proclamation, thus
lengthened by a new portion every year, obtained
the name of the Edictum Perpetuum , that is the
continuous or unbroken edict . The immense length
to which it extended , together perhaps with some
distaste for its necessarily disorderly texture,
caused the practice of increasing it to be stopped
in the year of Salvius Julianus , who occupied the
magistracy in the reign of the Emperor Hadrian.
The edict of that Prætor embraced therefore the

whole body of equity jurisprudence , which it

probably disposed in new and symmetrical order,
and the perpetual edict is therefore often cited in
Roman law merely as the Edict of Julianus.
Perhaps the first inquiry which occurs to an
Englishman who considers the peculiar mechanism
of the Edict is, what were the limitations by which
these extensive powers of the Prætor were re-
strained ? How was authority so little definite
to be reconciled with a settled condition of society
and of law ? The answer can only be supplied by
CHAP. III] RESTRAINTS OF THE PRÆTOR 57

careful observation of the conditions under which

our own English law is administered . The Prætor,

it should be recollected , was a jurisconsult himself,
or a person entirely in the hands of advisers who

were jurisconsults , and it is probable that every

Roman lawyer waited impatiently for the time
when he should fill or control the great judicial
magistracy. In the interval, his tastes, feelings ,
prejudices , and degree of enlightenment were
inevitably those of his own order, and the qualifi-
cations which he ultimately brought to office were
those which he had acquired in the practice and
study of his profession . An English Chancellor
goes through precisely the same training, and
carries to the woolsack the same qualifications . It
is certain when he assumes office that he will have ,
to some extent , modified the law before he leaves
it ; but until he has quitted his seat, and the series
of his decisions in the Law Reports has been
completed, we cannot discover how far he has
elucidated or added to the principles which his
predecessors bequeathed to him. The influence

of the Prætor on Roman jurisprudence differed

only in respect of the period at which its amount
was ascertained. As was before stated , he was in
office but for a year, and his decisions rendered
during his year, though of course irreversible as
regarded the litigants, were of no ulterior value.
The most natural moment for declaring the changes
he proposed to effect, occurred therefore at his
entrance on the prætorship ; and hence , when
commencing his duties, he did openly and
avowedly that which in the end his English
representative does insensibly and sometimes
 URE AND EQUITY ¡CHAP . III
58 LAW OF NAT

unconsciously. The checks on his apparent liberty

are precisely those imposed on an English judge.
Theoretically there seems to be hardly any limit
to the powers of either of them, but practically the
Roman Prætor, no less than the English Chan-
cellor, was kept within the narrowest bounds by
the prepossessions imbibed from early training,
and by the strong restraints of professional opinion,
restraints of which the stringency can only be
appreciated by those who have personally experi-
enced them. It may be added that the lines
within which movement is permitted, and beyond
which there is to be no travelling, were chalked
with as much distinctness in the one case as in the

other. In England the judge follows the analogies

of reported decisions on insulated groups of facts .
At Rome, as the intervention of the Prætor was at
first dictated by simple concern for the safety of
the state, it is likely that in the earliest times it was
proportioned to the difficulty which it attempted
to get rid of. Afterwards, when the taste for
principle had been diffused by the Responses, he
no doubt used the Edict as the means of giving a
wider application to those fundamental principles
which he and the other practising jurisconsults,
his contemporaries, believed themselves to have
detected underlying the law. Latterly he acted
wholly under the influence of Greek philosophical
theories, which at once tempted him to advance
and confined him to a particular course of progress .
The nature of the measures attributed to

Salvius Julianus has been much disputed . What-

ever they were , their effects on the Edict are
sufficiently plain. It ceased to be extended by
CHAP. III] ROMAN EQUITY 59

annual additions, and henceforward the equity

jurisprudence of Rome was developed by the
labours of a succession of great jurisconsults who
fill with their writings the interval between the
reign of Hadrian and the reign of Alexander
Severus. A fragment of the wonderful system
which they built up survives in the Pandects of
Justinian, and supplies evidence that their works
took the form of treatises on all parts of Roman
law, but chiefly that of commentaries on the Edict .
Indeed, whatever be the immediate subject of a
jurisconsult of this epoch, he may always be called
an expositor of Equity . The principles of the
Edict had , before the epoch of its cessation , made
their way into every part of Roman jurisprudence .

The Equity of Rome, it should be understood , even

when most distinct from the Civil Law, was always
administered by the same tribunals . The Prætor
was the chief equity judge as well as the great
common law magistrate, and as soon as the Edict
had evolved an equitable rule the Prætor's court
began to apply it in place of or by the side of
the old rule of the Civil Law, which was thus
directly or indirectly repealed without any express
enactment of the legislature. The result, of course,
fell considerably short of a complete fusion of law
and equity, which was not carried out till the
reforms of Justinian . The technical severance of
the two elements of jurisprudence entailed some
confusion and some inconvenience , and there were
certain of the stubborner doctrines of the Civil
Law with which neither the authors nor the ex-
positors of the Edict had ventured to interfere .
But at the same time there was no corner of the
60 LAW OF NATURE AND EQUITY [CHAP. III

field of jurisprudence which was not more or less

swept over by the influence of Equity. It sup-
plied the jurist with all his materials for generalisa-
tion, with all his methods of interpretation , with
his elucidations of first principles , and with that
great mass of limiting rules which are rarely
interfered with by the legislator, but which
seriously control the application of every legis-
lative act .
The period of jurists ends with Alexander
Severus . From Hadrian to that emperor the im-
provement of law was carried on, as it is at the
present moment in most continental countries,
partly by approved commentaries and partly by
direct legislation . But in the reign of Alexander
Severus the power of growth in Roman Equity
seems to be exhausted , and the succession of

jurisconsultscomes to a close The remaining

history of the Roman law is the history of the
imperial constitutions, and, at the last , of attempts
to codify what had now become the unwieldy body
of Roman jurisprudence. We have the latest and
most celebrated experiment of this kind in the
Corpus Juris of Justinian.
It would be wearisome to enter on a detailed
comparison or contrast of English and Roman
Equity ; but it may be worth while to mention
two features which they have in common . The
first may be stated as follows . Each of them
tended, and all such systems tend , to exactly the
same state in which the old common law was
when Equity first interfered with it. A time
always comes at which the moral principles
originally adopted have been carried out to all
CHAP. III] ENGLISH AND ROMAN EQUITY 61

their legitimate consequences , and then the system

founded on them becomes as rigid, as unexpansive,
and as liable to fall behind moral progress as
the sternest code of rules avowedly legal . Such
an epoch was reached at Rome in the reign of
Alexander Severus ; after which, though the whole
Roman world was undergoing a moral revolution ,
the Equity of Rome ceased to expand . The same
point of legal history was attained in England
under the chancellorship of Lord Eldon , the first
of our equity judges who , instead of enlarging the
jurisprudence of his court by indirect legislation ,
devoted himself through life to explaining and
harmonising it. If the philosophy of legal history
were better understood in England , Lord Eldon's
services would be less exaggerated on the one
hand and better appreciated on the other than
they appear to be among contemporary lawyers .
Other misapprehensions, too , which bear some
practical fruit, would perhaps be avoided . It is
easily seen by English lawyers that English Equity
is a system founded on moral rules ; but it is
forgotten that these rules are the morality of past
centuries-not of the present-that they have
received nearly as much application as they are
capable of, and that, though of course they do
not differ largely from the ethical creed of our
own day, they are not necessarily on a level with
it. The imperfect theories of the subject which
are commonly adopted have generated errors of
opposite sorts. Many writers of treatises on
Equity, struck with the completeness of the system
in its present state , commit themselves expressly
or implicitly to the paradoxical assertion that the
62 LAW OF NATURE AND EQUITY [CHAP. III

founders of the chancery jurisprudence contem-

plated its present fixity of form when they were
settling its first basis .
Others , again , complain—
and this is a grievance frequently observed upon
in forensic arguments-that the moral rules en-
forced by the Court of Chancery fall short of the
ethical standard of the present day . They would
have each Lord Chancellor perform precisely the

same office for the jurisprudence which he finds

ready to his hand , which was performed for the
old common law by the fathers of English equity.
But this is to invert the order of the agencies by
which the improvement of the law is carried on .
Equity has its place and its time ; but I have
pointed out that another instrumentality is ready
to succeed it when its energies are spent .
Another remarkable characteristic of both
English and Roman Equity is the falsehood of the
assumptions upon which the claim of the equitable
to superiority over the legal rule is originally
defended . Nothing is more distasteful to men ,
either as individuals or as masses, than the ad-
mission of their moral progress as a substantive
reality. This unwillingness shows itself, as regards
individuals , in the exaggerated respect which is
ordinarily paid to the doubtful virtue of consis-
tency . The movement of the collective opinion
of a whole society is too palpable to be ignored ,
and is generally too visibly for the better to be
decried ; but there is the greatest disinclination
to accept it as a primary phenomenon , and it
is commonly explained as the recovery of a lost
perfection-the gradual return to a state from
which the race has lapsed . This tendency to
CHAP. III] ENGLISH AND ROMAN EQUITY 63

look backward instead of forward for the goal

of moral progress produced anciently, as we have
seen, on Roman jurisprudence effects the most
serious and permanent . The Roman juriscon-
sults, in order to account for the improvement
of their jurisprudence by the Prætor , borrowed
from Greece the doctrine of a Natural state of

man-a Natural society-anterior to the organi-

sation of commonwealths governed by positive
laws . In England, on the other hand, a range
of ideas especially congenial to Englishmen of
that day, explained the claim of Equity to over-
ride the common law by supposing a general right
to superintend the administration of justice which
was assumed to be vested in the king as a natural
result of his paternal authority. The same view
appears in a different and a quainter form in the
old doctrine that Equity flowed from the king's
conscience the improvement which had in fact
taken place in the moral standard of the com-
munity being thus referred to an inherent elevation
in the moral sense of the sovereign . The growth
of the English constitution rendered such a theory
unpalatable after a time ; but as the jurisdiction
of the Chancery was then firmly established , it
was not worth while to devise any formal sub-
stitute for it . The theories found in modern

manuals of Equity are very various , but all are

alike in their untenability . Most of them are
modifications of the Roman doctrine of a natural

law, which is indeed adopted in terms by those

writers who begin a discussion of the jurisdiction
of the Court of Chancery by laying down a dis-
tinction between natural justice and civil.
 CHAPTER IV

THE MODERN HISTORY OF THE LAW OF NATURE

IT will be inferred from what has been said that

the theory which transformed the Roman juris-

prudence had no claim to philosophical precision .
It involved, in fact, one of those " mixed modes
of thought " which are now acknowledged to have
characterised all but the highest minds during
the infancy of speculation , and which are far
from undiscoverable even in the mental efforts of
our own day. The Law of Nature confused the
Past and the Present. Logically, it implied a
state of Nature which had once been regulated by

natural law ; yet the jurisconsults do not speak

clearly or confidently of the existence of such a
state, which indeed is little noticed by the ancients
except where it finds a poetical expression in the
fancy of a golden age . Natural law, for all prac-
tical purposes, was something belonging to the
present, something entwined with existing insti-
tutions, something which could be distinguished
from them by a competent observer. The test
which separated the ordinances of Nature from
the gross ingredients with which they were mingled
was a sense of simplicity and harmony ; yet it was
not on account of their simplicity and harmony
that these finer elements were primarily respected ,
but on the score of their descent from the aboriginal
64
CHAP. IV] PERILS OF EARLY SOCIETY 65

reign of Nature . This confusion has not been

successfully explained away by the modern dis-
ciples of the jurisconsults, and in truth modern
speculations on the Law of Nature betray much
more indistinctness of perception and are vitiated
by much more hopeless ambiguity of language
than the Roman lawyers can be justly charged
with . There are some writers on the subject who
attempt to evade the fundamental difficulty by
contending that the code of Nature exists in the
future and is the goal to which all civil laws are
moving, but this is to reverse the assumptions on
which the old theory rested, or rather perhaps
to mix together two inconsistent theories . The
tendency to look not to the past but to the future
for types of perfection was brought into the world
by Christianity . Ancient literature gives few or
no hints of a belief that the progress of society is
necessarily from worse to better.
But the importance of this theory to mankind
has been very much greater than its philosophical
deficiencies would lead us to expect . Indeed , it
is not easy to say what turn the history of thought ,
and therefore of the human race, would have
taken, if the belief in a law natural had not become
universal in the ancient world .

There are two special dangers to which law,

and society which is held together by law, appear
to be liable in their infancy . One of them is that
law may be too rapidly developed . This occurred
with the codes of the more progressive Greek
communities , which disembarrassed themselves
with astonishing facility from cumbrous forms of
procedure and needless terms of art, and soon
5
66 MODERN HISTORY OF LAW OF NATURE (CHAP. IV

ceased to attach any superstitious value to rigid

rules and prescriptions . It was not for the ulti-
mate advantage of mankind that they did so ,
though the immediate benefit conferred on their
citizens may have been considerable . One of the

rarest qualities of national character is the capacity

for applying and working out the law, as such ,
at the cost of constant miscarriages of abstract
justice , without at the same time losing the hope
or the wish that law may be conformed to a higher
ideal . The Greek intellect , with all its mobility
and elasticity, was quite unable to confine itself
within the strait waistcoat of a legal formula ;
and, if we may judge them by the popular courts
of Athens , of whose working we possess accurate
knowledge , the Greek tribunals exhibited the
strongest tendency to confound law and fact.
The remains of the Orators and the forensic com-
monplaces preserved by Aristotle in his Treatise
on Rhetoric , show that questions of pure law
were constantly argued on every consideration
which could possibly influence the mind of the
judges . No durable system of jurisprudence could
be produced in this way. A community which
never hesitated to relax rules of written law

whenever they stood in the way of an ideally

perfect decision on the facts of particular cases ,
would only, if it bequeathed any body of judicial
principles to posterity , bequeath one consisting
of the ideas of right and wrong which happened
to be prevalent at the time . Such a jurisprudence
would contain no framework to which the more

advanced conceptions of subsequent ages could be

fitted . It would amount at best to a philosophy,
CHAP. IV] LAW OF NATURE 67

marked with the imperfections of the civilisation

under which it grew up .

Few national societies have had their juris-

prudence menaced by this peculiar danger of
precocious maturity and untimely disintegration .
It is certainly doubtful whether the Romans
were ever seriously threatened by it, but at any
rate they had adequate protection in their theory
of Natural Law. For the Natural Law of the
jurisconsults was distinctly conceived by them as
a system which ought gradually to absorb civil
laws, without superseding them so long as they
remained unrepealed . There was no such im-
pression of its sanctity abroad, that an appeal
to it would be likely to overpower the mind of a
judge who was charged with the superintendence
of a particular litigation . The value and service-
ableness of the conception arose from its keeping
before the mental vision a type of perfect law,
and from its inspiring the hope of an indefinite
approximation to it, at the same time that it
never tempted the practitioner or the citizen
to deny the obligation of existing laws which had
not yet been adjusted to the theory. It is im-
portant too to observe that this model system ,
unlike many of those which have mocked men's
hopes in later days, was not entirely the pro-
duct of imagination . It was never thought of
as founded on quite untested principles. The
notion was that it underlay existing law and
must be looked for through it . Its functions
were in short remedial, not revolutionary or
anarchical. And this, unfortunately, is the
exact point at which the modern view of a
68 MODERN HISTORY CF LAW OF NATURE (CHAP. IV

Law of Nature has often ceased to resemble the

ancient .

The other liability to which the infancy of

society is exposed has prevented or arrested the
progress of far the greater part of mankind .
The rigidity of primitive law, arising chiefly from
its early association and identification with religion ,
has chained down the mass of the human race
to those views of life and conduct which they
entertained at the time when their usages were
first consolidated into a systematic form . There
were one or two races exempted by a marvellous
fate from this calamity, and grafts from these
stocks have fertilised a few modern societies ;
but it is still true that, over the larger part of the
world, the perfection of law has always been
considered as consisting in adherence to the
ground-plan supposed to have been marked out
by the original legislator . If intellect has in such
cases been exercised on jurisprudence , it has
uniformly prided itself on the subtle perversity
of the conclusions it could build on ancient
texts , without discoverable departure from their
literal tenor. I know no reason why the law

of the Romans should be superior to the laws of

the Hindoos , unless the theory of Natural Law
had given it a type of excellence different from
the usual one. In this one exceptional instance,

simplicity and symmetry were kept before the

eyes of a society whose influence on mankind
was destined to be prodigious from other causes ,
as the characteristics of an ideal and absolutely

perfect law. It is impossible to overrate the

importance to a nation or profession of having a
CHAP. IV] BENTHAMISM 69

distinct object to aim at in the pursuit of improve-

ment. The secret of Bentham's immense influence

in England during the past thirty years is his

success in placing such an object before the
country. He gave us a clear rule of reform .
English lawyers of the last century were probably
too acute to be blinded by the paradoxical com-
monplace that English law was the perfection of
human reason, but they acted as if they believed
it for want of any other principle to proceed upon .
Bentham made the good of the community take
precedence of every other object, and thus gave
escape to a current which had long been trying
to find its way outwards.
It is not an altogether fanciful comparison if
we call the assumptions we have been describing
the ancient counterpart of Benthamism . The
Roman theory guided men's efforts in the same
direction as the theory put into shape by the
Englishman ; its practical results were not widely
different from those which would have been

attained by a sect of law-reformers who main-

tained a steady pursuit of the general good of
the community. It would be a mistake, however ,
to suppose it a conscious anticipation of Bentham's
principles. The happiness of mankind is, no
doubt , sometimes assigned , both in the popular 1
and in the legal literature of the Romans, as the
proper object of remedial legislation, but it is
very remarkable how few and faint are the

testimonies to this principle compared with the

tributes which are constantly offered to the over-
shadowing claims of the Law of Nature. It was
not to anything resembling philanthropy but to
70 MODERN HISTORY OF LAW OF NATURE [CHAP. IV

their sense of simplicity and harmony-of what

they significantly termed " elegance "-that the
Roman jurisconsults freely surrendered them-
selves . The coincidence of their labours with

those which a more precise philosophy would

have counselled has been part of the good fortune
of mankind .
Turning to the modern history of the law of
nature , we find it easier to convince ourselves
of the vastness of its influence than to pronounce
confidently whether that influence has been

exerted for good or for evil . The doctrines and

institutions which may be attributed to it are
the material of some of the most violent con-

troversies debated in our time, as will be seen

when it is stated that the theory of Natural Law
is the source of almost all the special ideas as to
law, politics , and society which France during
the last hundred years has been the instrument
of diffusing over the western world . The part
played by jurists in French history, and the
sphere of jural conceptions in French thought ,
have always been remarkably large . It was not
indeed in France, but in Italy, that the juridical
science of modern Europe took its rise , but of
the schools founded by emissaries of the Italian
universities in all parts of the Continent, and
attempted (though vainly) to be set up in our
island, that established in France produced the
greatest effect on the fortunes of the country.
The lawyers of France immediately formed a
strict alliance with the kings of the houses of
Capet and Valois , and it was as much through
their assertions of royal prerogative , and through
CHAP. IV] THE FRENCH LAWYERS 71

their interpretations of the rules of feudal succes-

sion, as by the power of the sword that the French
monarchy at last grew together out of the agglo-
meration of provinces and dependencies . The
enormous advantage which their understanding
with the lawyers conferred on the French kings
in the prosecution of their struggle with the great
feudatories, the aristocracy and the Church, can
only be appreciated if we take into account the
ideas which prevailed in Europe far down into
the middle ages . There was , in the first place, a
great enthusiasm for generalisation and a curious
admiration for all general propositions, and con-
sequently, in the field of law, an involuntary
reverence for every general formula which seemed
to embrace and sum up a number of the insulated
rules which were practised as usages in various
localities. Such general formulas it was, of
course, not difficult for practitioners familiar
with the Corpus Juris or the Glosses to supply
in almost any quantity. There was, however,
another cause which added yet more considerably
to the lawyers' power . At the period of which
we are speaking, there was universal vagueness of
ideas as to the degree and nature of the authority
residing in written texts of law. For the most
part the peremptory preface , Ita scriptum est,
seems to have been sufficient to silence all objec-
tions. Where a mind of our own day would
jealously scrutinise the formula which had been
quoted, would inquire its source, and would (if
necessary) deny that the body of law to which
it belonged had any authority to supersede local
customs, the elder jurist would not probably
72 MODERN HISTORY OF LAW OF NATURE [CHAP. IV

have ventured to do more than question the

applicability of the rule, or at best cite some
counter- proposition from the Pandects or the
Canon Law. It is extremely necessary to bear

in mind the uncertainty of men's notions on

this most important side of juridical controversies,
not only because it helps to explain the weight
which the lawyers threw into the monarchical
scale, but on account of the light which it sheds
on several curious historical problems . The

motives of the author of the Forged Decretals and

his extraordinary success are rendered more in-
telligible by it. And to take a phenomenon of
smaller interest, it assists us, though only partially,
to understand the plagiarisms of Bracton . That
an English writer of the time of Henry III . should
have been able to put off on his countrymen as
a compendium of pure English law a treatise of
which the entire form and a third of the contents

were directly borrowed from the Corpus Juris,

and that he should have ventured on this experi-
ment in a country where the systematic study
of the Roman Law was formally proscribed, will
always be among the most hopeless enigmas
in the history of jurisprudence ; but still it is
something to lessen our surprise when we com-
prehend the state of opinion at the period as to
the obligatory force of written texts, apart from
all consideration of the source whence they were
derived .

When the kings of France had brought their

long struggle for supremacy to a successful close ,
an epoch which may be placed roughly at the
accession of the branch of Valois-Angoulême to
CHAP. IV] THE FRENCH LAWYERS 73

the throne, the situation of the French jurists

was peculiar, and continued to be so down to the
outbreak of the Revolution . On the one hand,
they formed the best instructed and nearly the
most powerful class in the nation . They had
made good their footing as a privileged order by
the side of the feudal aristocracy, and they had
assured their influence by an organisation which
distributed their profession over France in great
chartered corporations possessing large defined
powers and still larger indefinite claims. In all

the qualities of the advocate, the judge, and the

legislator, they far excelled their compeers through-
out Europe. Their judicial tact , their ease of
expression, their fine sense of analogy and harmony,
and (if they may be judged by the highest names
among them) their passionate devotion to their
conceptions of justice, were as remarkable as
the singular variety of talent which they included ,
a variety covering the whole ground between the
opposite poles of Cujas and Montesquieu , of
D'Aguesseau and Dumoulin . But, on the other
hand, the system of laws which they had to
administer stood in striking contrast with the
habits of mind which they had cultivated . The
France which had been in great part constituted
by their efforts was smitten with the curse of an
anomalous and dissonant jurisprudence beyond
every other country in Europe . One great division
ran through the country and separated it into
Pays de Droit Écrit and Pays de Droit Coutumier,
the first acknowledging the written Roman law
as the basis of their jurisprudence , the last ad-
mitting it only so far as it supplied general forms
74 MODERN HISTORY OF LAW OF NATURE [CHAP. IV

of expression , and courses of juridical reasoning,

which were reconcilable with the local usages .
The sections thus formed were again variously
subdivided . In the Pays de Droit Coutumier
province differed from province, county from
county, municipality from municipality, in the
nature of its customs . In the Pays de Droit Écrit
the stratum of feudal rules which overlay the
Roman law was of the most miscellaneous com-

position. No such confusion as this ever existed

in England . In Germany it did exist, but was
too much in harmony with the deep political
and religious divisions of the country to be
lamented or even felt. It was the special pecu-
liarity of France that an extraordinary diversity
of laws continued without sensible alteration
while the central authority of the monarchy
was constantly strengthening itself, while rapid
approaches were being made to complete adminis-
trative unity, and while a fervid national spirit
had been developed among the people. The
contrast was one which fructified in many serious
results , and among them we must rank the effect
which it produced on the minds of the French
lawyers. Their speculative opinions and their
intellectual bias were in the strongest opposition

to their interests and professional habits . With

the keenest sense and the fullest recognition of
those perfections of jurisprudence which consist
in simplicity and uniformity, they believed , or
seemed to believe, that the vices which actually
invested French law were ineradicable ; and in
practice they often resisted the reformation of
abuses with an obstinacy which was not shown
CHAP. IV] THE FRENCH LAWYERS 75

by many among their less enlightened countrymen .

But there was a way to reconcile these contra-
dictions. They became passionate enthusiasts
for Natural Law. The Law of Nature overleapt
all provincial and municipal boundaries ; it
disregarded all distinctions between noble and
burgess, between burgess and peasant ; it gave
the most exalted place to lucidity, simplicity,
and system ; but it committed its devotees to no
specific improvement , and did not directly threaten
any venerable or lucrative technicality. Natural
law may be said to have become the common
law of France, or, at all events, the admission
of its dignity and claims was the one tenet which
all French practitioners alike subscribed to . The
language of the præ-revolutionary jurists in its
eulogy is singularly unqualified , and it is remark-
able that the writers on the Customs, who often
made it their duty to speak disparagingly of the
pure Roman law, speak even more fervidly of
Nature and her rules than the civilians who pro-

fessed an exclusive respect for the Digest and the

Code. Dumoulin, the highest of all authorities
on old French Customary Law, has some extrava-
gant passages on the Law of Nature ; and his
panegyrics have a peculiar rhetorical turn which
indicates a considerable departure from the caution
of the Roman jurisconsults . The hypothesis of
a Natural Law had become not so much a theory

guiding practice as an article of speculative faith,

and accordingly we shall find that , in the trans-
formation which it more recently underwent , its
weakest parts rose to the level of its strongest
in the esteem of its supporters .
К

76 MODERN HISTORY OF LAW OF NATURE [CHAP. IV

The eighteenth century was half over when

the most critical period in the history of Natural
Law was reached . Had the discussion of the
theory and of its consequences continued to be
exclusively the employment of the legal profession ,
there would possibly have been an abatement
of the respect which it commanded ; for by this
time the Esprit des Lois had appeared . Bearing
in some exaggerations the marks of the excessive
violence with which its author's mind had recoiled
from assumptions usually suffered to pass without
scrutiny, yet showing in some ambiguities the
traces of a desire to compromise with existing
prejudice , the book of Montesquieu , with all
its defects, still proceeded on that Historical
Method before which the Law of Nature has never

maintained its footing for an instant . Its influence

on thought ought to have been as great as its
general popularity ; but, in fact, it was never
allowed time to put it forth , for the counter-
hypothesis which it seemed destined to destroy
passed suddenly from the forum to the street,
and became the key-note of controversies far
more exciting than are ever agitated in the courts
or the schools . The person who launched it on
its new career was that remarkable man who ,
without learning, with few virtues, and with no
strength of character, has nevertheless stamped
himself ineffaceably on history by the force of a
vivid imagination, and by the help of a genuine
and burning love for his fellow-men, for which
much will always have to be forgiven him . We
have never seen in our own generation- indeed
the world has not seen more than once or twice
CHAP. IV] ROUSSEAU 77

in all the course of history -a literature which

has exercised such prodigious influence over the
minds of men, over every cast and shade of
intellect, as that which emanated from Rousseau
between 1749 and 1762. It was the first attempt
to re-erect the edifice of human belief after the

purely iconoclastic efforts commenced by Bayle ,

and in part by our own Locke , and consummated
by Voltaire ; and besides the superiority which
every constructive effort will always enjoy over
one that is merely destructive , it possessed the
immense advantage of appearing amid an all
but universal scepticism as to the soundness of
all foregone knowledge in matters speculative .
Now, in all the speculations of Rousseau , the
central figure , whether arrayed in an English
dress as the signatary of a social compact , or
simply stripped naked of all historical qualities,
is uniformly Man, in a supposed state of nature.
Every law or institution which would misbeseem
this imaginary being under these ideal circum-
stances is to be condemned as having lapsed
from an original perfection ; every transformation
of society which would give it a closer resemblance
to the world over which the creature of Nature
reigned , is admirable and worthy to be effected
at any apparent cost . The theory is still that of
the Roman lawyers, for in the phantasmagoria
with which the Natural Condition is peopled ,
every feature and characteristic eludes the mind

except the simplicity and harmony which possessed

such charms for the jurisconsult ; but the theory
is, as it were, turned upside down . It is not
the Law of Nature, but the State of Nature , which
78 MODERN HISTORY OF LAW OF NATURE [CHAP. IV

is now the primary subject of contemplation .

The Roman had conceived that by careful obser-
vation of existing institutions parts of them could
be singled out which either exhibited already,
or could by judicious purification be made to
exhibit, the vestiges of that reign of nature whose
reality he faintly affirmed . Rousseau's belief was
that a perfect social order could be evolved from
the unassisted consideration of the natural state ,
a social order wholly irrespective of the actual
condition of the world and wholly unlike it .
The great difference between the views is that
one bitterly and broadly condemns the present
for its unlikeness to the ideal past ; while the
other, assuming the present to be as necessary
as the past, does not affect to disregard or censure
it. It is not worth our while to analyse with

any particularity that philosophy of politics , art,

education , ethics , and social relations which was
constructed on the basis of a state of nature.
It still possesses singular fascination for the
looser thinkers of every country, and is no doubt
the parent, more or less remote , of almost all the
prepossessions which impede the employment of
the Historical Method of inquiry, but its discredit
with the higher minds of our day is deep enough
to astonish those who are familiar with the
extraordinary vitality of speculative error. Per-

haps the question most frequently asked nowadays

is not what is the value of these opinions, but
what were the causes which gave them such
overshadowing prominence a hundred years ago.
The answer is, I conceive, a simple one. The

study which in the last century would best have

CHAP. IV] THEORIES OF ROUSSEAU 79

corrected the misapprehensions into which an

exclusive attention to legal antiquities is apt to
betray was the study of religion . But Greek
religion, as then understood , was dissipated in
imaginative myths . The Oriental religions, if
noticed at all, appeared to be lost in vain cosmo-
gonies. There was but one body of primitive
records which was worth studying- the early
history of the Jews . But resort to this was
prevented by the prejudices of the time . One
of the few characteristics which the school of
Rousseau had in common with the school of

Voltaire was an utter disdain of all religious

antiquities ; and, more than all, of those of the
Hebrew race . It is well known that it was a

point of honour with the reasoners of that day to

assume not merely that the institutions called
after Moses were not divinely dictated, nor even
that they were codified at a later date than that
attributed to them, but that they and the entire
Pentateuch were a gratuitous forgery, executed
after the return from the Captivity . Debarred,
therefore, from one chief security against specu-
lative delusion, the philosophers of France , in
their eagerness to escape from what they deemed
a superstition of the priests, flung themselves
headlong into a superstition of the lawyers.
But though the philosophy founded on the
hypothesis of a state of nature has fallen low in
general esteem , in so far as it is looked upon under
its coarser and more palpable aspect, it does not
follow that in its subtler disguises it has lost
plausibility, popularity, or power . I believe , as
I have said, that it is still the great antagonist
80 MODERN HISTORY OF LAW OF NATURE [CHAP. IV

of the Historical Method ; and whenever (religious

objections apart) any mind is seen to resist or
contemn that mode of investigation, it will
generally be found under the influence of a
prejudice or vicious bias traceable to a conscious
or unconscious reliance on a non-historic, natural
condition of society or the individual. It is
chiefly, however, by allying themselves with
political and social tendencies that the doctrines
of Nature and her law have preserved their
energy. Some of these tendencies they have

stimulated , others they have actually created, to

a great number they have given expression and
form . They visibly enter largely into the ideas
which constantly radiate from France over the
civilised world , and thus become part of the
general body of thought by which its civilisation
is modified . The value of the influence which

they thus exercise over the fortunes of the race

is of course one of the points which our age debates
most warmly, and it is beside the purpose of this
treatise to discuss it . Looking back, however,

to the period at which the theory of the state

of nature acquired the maximum of political
importance, there are few who will deny that it
helped most powerfully to bring about the grosser
disappointments of which the first French Re-
volution was fertile . It gave birth , or intense
stimulus, to the vices of mental habit all but
universal at the time , disdain of positive law,
impatience of experience, and the preference of
à priori to all other reasoning. In proportion
too as this philosophy fixes its grasp on minds
which have thought less than others and fortified
CHAP. IV] EQUALITY OF MEN 81

themselves with smaller observation , its tendency

it to become distinctly anarchical . It is surprising
to note how many of the Sophismes Anarchiques
which Dumont published for Bentham , and which
embody Bentham's exposure of errors distinctively
French, are derived from the Roman hypothesis
in its French transformation , and are unintelligible
unless referred to it . On this point too it is a
curious exercise to consult the Moniteur during

the principal eras of the Revolution . The appeals

to the Law and State of Nature become thicker
as the times grow darker.
There is a single example which very strikingly
illustrates the effects of the theory of natural law
on modern society, and indicates how very far are
those effects from being exhausted . There cannot,
I conceive, be any question that to the assumption
of a Law Natural we owe the doctrine of the

fundamental equality of human beings . That " all

men are equal " is one of a large number of legal
propositions which in progress of time have
become political . Roman jurisconsults of
The
the Antonine era lay down that " omnes homines
naturâ æquales sunt," but in their eyes this is a
strictly juridical axiom. They intend to affirm
that, under the hypothetical Law of Nature, and
in so far as positive law approximates to it, the
arbitrary distinctions which the Roman Civil Law
maintained between classes of persons cease to
have a legal existence . The rule was one of con-
siderable importance to the Roman practitioner ,
who required to be reminded that, wherever
Roman jurisprudence was assumed to conform
itself exactly to the code of Nature, there was no
6
82 MODERN HISTORY OF LAW OF NATURE (CHAP. IV

difference in the contemplation of the Roman

tribunals between citizen and foreigner, between
freeman and slave, between Agnate and Cognate .
The jurisconsults who thus expressed themselves
most certainly never intended to censure the social
arrangements under which civil law fell somewhat
short of its speculative type ; nor did they appar-
ently believe that the world would ever see human
society completely assimilated to the economy of
nature. But when the doctrine of human equality
makes its appearance in a modern dress it has
evidently clothed itself with a new shade of
meaning. Where the Roman jurisconsult had
written " æquales sunt," meaning exactly what
he said , the modern civilian wrote " all men are
equal " in the sense of " all men ought to be equal ."
The peculiar Roman idea that natural law coexisted
with civil law and gradually absorbed it, had
evidently been lost sight of, or had become
unintelligible, and the words which had at most
conveyed a theory concerning the origin , com-
position , and development of human institutions ,
were beginning to express the sense of a great
standing wrong suffered by mankind . As early
as the beginning of the fourteenth century, the
current language concerning the birth-state of
men, though visibly intended to be identical with

that of Ulpian and his contemporaries, has

assumed an altogether different form and meaning.
The preamble to the celebrated ordinance of King
Louis Hutin, enfranchising the serfs of the royal
domains, would have sounded strangely to Roman
ears . " Whereas, according to natural law, every-

body ought to be born free ; and by some usages

CHAP. IV] THE AMERICAN LAWYERS 83

and customs which , from long antiquity, have

been introduced and kept until now in our realm ,
and peradventure by reason of the misdeeds of
their predecessors, many persons of our common
people have fallen into servitude, therefore, We,"
etc. This is the enunciation not of a legal rule but
of a political dogma ; and from this time the
equality of men is spoken of by the French lawyers
just as if it were a political truth which happened
to have been preserved among the archives of
their science . Like all other deductions from the
hypothesis of a Law Natural , and like the belief
itself in a Law of Nature, it was languidly assented
to and suffered to have little influence on opinion
and practice until it passed out of the possession
of the lawyers into that of the literary men of the
eighteenth century and of the public which sat
at their feet. With them it became the most
distinct tenet of their creed , and was even regarded
as a summary of all the others . It is probable,
however, that the power which it ultimately ac-
quired over the events of 1789 was not entirely
owing to its popularity in France, for in the middle
of the century it passed over to America . The
American lawyers of the time, and particularly
those of Virginia , appear to have possessed a stock
of knowledge which differed chiefly from that of
their English contemporaries in including much
which could only have been derived from the legal
literature of continental Europe . A very few
glances at the writings of Jefferson will show how
strongly his mind was affected by the semi-juri-
dical, semi-popular opinions which were fashionable
in France, and we cannot doubt that it was
 84 MODERN HISTORY OF LAW OF NATURE [CHAP. IV

sympathy with the peculiar ideas of the French

jurists which led him and the other colonial
lawyers who guided the course of events in America
to join the specially French assumption that " all
men are born equal " with the assumption , more
familiar to Englishmen, that all men are born
free, in the very first lines of their Declaration of

Independence. The passage was one of great

importance to the history of the doctrine before
us. The American lawyers, in thus prominently

and emphatically affirming the fundamental equal-

ity of human beings , gave an impulse to political
movements in their own country , and in a less
degree in Great Britain , which is far from having
yet spent itself ; but besides this they returned
the dogma they had adopted to its home in France,
endowed with vastly greater energy and enjoying
much greater claims on general reception and
respect. Even the more cautious politicians of
the first Constituent Assembly repeated Ulpian's
proposition as if it at once commended itself to the
instincts and intuitions of mankind ; and of all
the " principles of 1789 " it is the one which has
been least strenuously assailed , which has most
thoroughly leavened modern opinion, and which
promises to modify most deeply the constitution
of societies and the politics of states .
The greatest function of the Law of Nature was
discharged in giving birth to modern International
Law and to the modern Law of War, but this part
of its effects must here be dismissed with considera-

tion very unequal to its importance .

Among the postulates which form the founda-
tion of International Law, or of so much of it
CHAP. IV] INTERNATIONAL LAW 85

as retains the figure which it received from its

original architects , there are two or three of pre-
eminent importance . The first of all is expressed
in the position that there is a determinable Law
of Nature . Grotius and his successors took the

assumption directly from the Romans, but they

differed widely from the Roman jurisconsults and
from each other in their ideas as to the mode of
determination . The ambition of almost every
Publicist who has flourished since the revival of
letters has been to provide new and more manage-
able definitions of Nature and of her law, and it
is indisputable that the conception in passing
through the long series of writers on Public Law
has gathered round it a large accretion, consisting
of fragments of ideas derived from nearly every
theory of ethics which has in its turn taken
possession of the schools. Yet it is a remarkable
proof of the essentially historical character of the
conception that, after all the efforts which have
been made to evolve the code of Nature from the
necessary characteristics of the natural state , so
much of the result is just what it would have been
if men had been satisfied to adopt the dicta of the
Roman lawyers without questioning or reviewing
them. Setting aside the Conventional or Treaty
Law of Nations, it is surprising how large a part
of the system is made up of pure Roman law.
Wherever there is a doctrine of the jurisconsults
affirmed by them to be in harmony with the Jus
Gentium, the Publicists have found a reason for
borrowing it, however plainly it may bear the
marks of a distinctively Roman origin . We may
1
observe too that the derivative theories are afflicted
86 MODERN HISTORY OF LAW OF NATURE [CHAP. IV

with the weakness of the primary notion . In the

majority of the Publicists , the mode of thought
is still " mixed ." In studying these writers, the
great difficulty is always to discover whether they
are discussing law or morality- whether the state
of international relations they describe is actual
or ideal- whether they lay down that which is ,
or that which, in their opinion, ought to be.
The assumption that Natural Law is binding
on states inter se is the next in rank of those which
underlie International Law. A series of assertions
or admissions of this principle may be traced up
to the very infancy of modern juridical science ,
and at first sight it seems a direct inference from
the teaching of the Romans . The civil condition
of society being distinguished from the natural
by the fact that in the first there is a distinct author
of law, while in the last there is none, it appears
as if the moment a number of units were acknow-

ledged to obey no common sovereign or political

superior they were thrown back on the ulterior
behests of the Law Natural. States are such
units ; the hypothesis of their independence
excludes the notion of a common lawgiver, and
draws with it, therefore, according to a certain
range of ideas, the notion of subjection to the
primeval order of nature. The alternative is to
consider independent communities as not related
to each other by any law, but this condition of
lawlessness is exactly the vacuum which the
Nature of the jurisconsults abhorred . There is
certainly apparent reason for thinking that if the
mind of a Roman lawyer rested on any sphere
from which civil law was banished , it would
CHAP. IV] INTERNATIONAL LAW 87

instantly fill the void with the ordinances of

Nature. It is never safe, however, to assume that
conclusions, however certain and immediate in our
own eyes, were actually drawn at any period of
history. No passage has ever been adduced from
the remains of Roman law which, in my judgment,
proves the jurisconsults to have believed natural

law to have obligatory force between independent

commonwealths ; and we cannot but see that to
citizens of the Roman empire, who regarded their
sovereign's dominions as conterminous with civili-
sation, the equal subjection of states to the Law
of Nature, if contemplated at all, must have
seemed at most an extreme result of curious

speculation . The truth appears to be that modern

International Law, undoubted as is its descent
from Roman law, is only connected with it by an
irregular filiation . The early modern interpreters
of the jurisprudence of Rome , misconceiving the
meaning of Jus Gentium, assumed without hesita-
tion that the Romans had bequeathed to them a
system of rules for the adjustment of international
transactions . This " Law of Nations " was at first

an authority which had formidable competitors

to strive with, and the condition of Europe was
long such as to preclude its universal reception.
Gradually, however, the western world arranged
itself in a form more favourable to the theory of
the civilians ; circumstances destroyed the credit
of rival doctrines ; and at last, at a peculiarly
felicitous conjuncture, Ayala and Grotius were
able to obtain for it the enthusiastic assent of

Europe, an assent which has been over and over

again renewed in every variety of solemn engage-
88 MODERN HISTORY OF LAW OF NATURE [CHAP. IV

ment. The great men to whom its triumph is

chiefly owing attempted, it need scarcely be said,
to place it on an entirely new basis, and it is
unquestionable that in the course of this displace-
ment they altered much of its structure, though
far less of it than is commonly supposed . Having
adopted from the Antonine jurisconsults the
position that the Jus Gentium and the Jus Naturæ
were identical, Grotius, with his immediate prede-
cessors and his immediate successors , attributed
to the Law of Nature an authority which would
never perhaps have been claimed for it, if " Law
of Nations " had not in that age been an ambiguous
expression . They laid down unreservedly that
Natural Law is the code of states, and thus put in
operation a process which has continued almost
down to our own day, the process of engrafting
on the international system rules which are
supposed to have been evolved from the unassisted
contemplation of the conception of Nature . There
is, too, one consequence of immense practical
importance to mankind which, though not un-
known during the early modern history of Europe ,
was never clearly or universally acknowledged till
the doctrines of the Grotian school had prevailed .
If the society of nations is governed by Natural
Law, the atoms which compose it must be abso-
lutely equal . Men under the sceptre of Nature
are all equal, and accordingly commonwealths are
equal if the international state be one of nature.
The proposition that independent communities ,
however different in size and power, are all equal
in the view of the law of nations, has largely
contributed to the happiness of mankind , though
CHAP. IV] INTERNATIONAL LAW 89

it is constantly threatened by the political ten-

dencies of each successive age . It is a doctrine
which probably would never have obtained a
secure footing at all if International Law had not

been entirely derived from the majestic claims of

Nature by the Publicists who wrote after the
revival of letters .

On the whole, however, it is astonishing, as I

have observed before, how small a proportion the
additions made to International Law since Gro-

tius's day bear to the ingredients which have been

simply taken from the most ancient stratum of
the Roman Jus Gentium . Acquisition of territory
has always been the great spur of national am-
bition, and the rules which govern this acquisition ,
together with the rules which moderate the wars
in which it too frequently results, are merely
transcribed from the part of the Roman Law
which treats of the modes of acquiring property

jure gentium . These modes of acquisition were

obtained by the elder jurisconsults, as I have
attempted to explain, by abstracting a common
ingredient from the usages observed to prevail
among the various tribes surrounding Rome ; and ,
having been classed on account of their origin
in the " law common to all nations," they were
thought by the later lawyers to fit in, on the score
of their simplicity, with the more recent conception
of a Law Natural. They thus made their way
into the modern Law of Nations, and the result
is that those parts of the international system
which refer to dominion, its nature , its limitations,
the modes of acquiring and securing it, are pure
Roman Property Law-so much, that is to say,
90 MODERN HISTORY OF LAW OF NATURE [CHAP. IV

of the Roman Law of Property as the Antonine

jurisconsults imagined to exhibit a certain con-
gruity with the natural state . In order that these
chapters of International Law may be capable of
application , it is necessary that sovereigns should
be related to each other like the members of a
group of Roman proprietors . This is another of
the postulates which lie at the threshold of the
International Code , and it is also one which could
not possibly have been subscribed to during the
first centuries of modern European history . It is
66
resolvable into the double proposition that sove-

reignty is territorial," i.e. , that it is always associ-

ated with the proprietorship of a limited portion
of the earth's surface , and that " sovereigns inter
se are to be deemed not paramount, but absolute,
owners of the state's territory."
Many contemporary writers on International
Law tacitly assume that the doctrines of their
system , founded on principles of equity and
common sense, were capable of being readily
reasoned out in every stage of modern civilisation .
But this assumption, while it conceals some real
defects of the international theory, is altogether
untenable so far as regards a large part of modern
history. It is not true that the authority of the
Jus Gentium in the concerns of nations was
always uncontradicted ; on the contrary, it had
to struggle long against the claims of several
competing systems . It is again not true that the
territorial character of sovereignty was always
recognised, for long after the dissolution of the
Roman dominion the minds of men were under

the empire of ideas irreconcilable with such a

CHAP, IV] INTERNATIONAL LAW 91

conception. An old order of things , and of views

founded on it, had to decay-a new Europe , and
an apparatus of new notions congenial to it, had
to spring up- before two of the chiefest postulates
of International Law could be universally con-
ceded.
It is a consideration well worthy to be kept in
view, that during a large part of what we usually
term modern history no such conception was
entertained as that of " territorial sovereignty."
Sovereignty was not associated with dominion
over a portion or subdivision of the earth . The

world had lain for so many centuries under the

shadow of Imperial Rome as to have forgotten that
distribution of the vast spaces comprised in the
Empire which had once parcelled them out into
a number of independent commonwealths , claiming
immunity from extrinsic interference, and pre-
tending to equality of national rights . After the
subsidence of the barbarian irruptions, the notion
of sovereignty that prevailed seems to have been
twofold . On the one hand it assumed the form

of what may be called " tribe-sovereignty." The

Franks, the Burgundians, the Vandals, the Lom-
bards, and Visigoths were masters , of course, of
the territories which they occupied, and to which
some of them have given a geographical appella-
tion ; but they based no claim of right upon the
fact of territorial possession , and indeed attached
no importance to it whatever . They appear to
have retained the traditions which they brought
with them from the forest and the steppe , and to
have still been in their own view a patriarchal
society, a nomad horde, merely encamped for the
92 MODERN HISTORY OF LAW OF NATURE [CHAP. IV

time upon the soil which afforded them sustenance.

Part of Transalpine Gaul , with part of Germany,
had now become the country de facto occupied by
the Franks- it was France ; but the Merovingian
line of chieftains, the descendants of Clovis, were
not Kings of France , they were Kings of the
Franks . Territorial titles were not unknown , but

they seem at first to have come into use only as a

convenient mode of designating the ruler of a por-
tion of the tribe's possessions ; the king of a whole
tribe was king of his people, not of his people's
lands. The alternative to this peculiar notion of
sovereignty appears to have been-and this is the
important point-the idea of universal dominion .
When a monarch departed from the special
relation of chief to clansmen , and became solicitous ,
for purposes of his own, to invest himself with a

novel form of sovereignty, the precedent which

suggested itself for his adoption was the domina-
tion of the Emperors of Rome . To parody a
common quotation, he became " aut Cæsar aut
nullus." Either he pretended to the full pre-
rogative of the Byzantine Emperor, or he had no
political status . In our own age, when a new
dynasty is desirous of obliterating the prescriptive
title of a deposed line of sovereigns , it takes its
designation from the people, instead of the territory.
Thus we have Emperors and Kings of the French ,
and a King of the Belgians . At the period of
which we have been speaking, under similar
circumstances , a different alternative presented
itself. The Chieftain who would no longer call
himself King of the tribe must claim to be Emperor
of the world. Thus, when the hereditary Mayors
CHAP. IV] TERRITORIAL SOVEREIGNTY 93

of the Palace had ceased to compromise with the

monarchs they had long since virtually dethroned ,
they soon became unwilling to call themselves
merely Kings of the Franks, a title which belonged
to the displaced Merovings ; but they could not
style themselves Kings of France , for such a de-
signation, though apparently not unknown , was
not a title of dignity. Accordingly they came
forward as aspirants to universal empire . Their
motive has been greatly misapprehended . It has
been taken for granted by recent French writers
that Charlemagne was far before his age, quite as
much in the character of his designs as in the
energy with which he prosecuted them. Whether
it be true or not that anybody is at any time before
his age, it is certainly true that Charlemagne, in
aiming at an unlimited dominion, was emphatically
taking the only course which the characteristic
ideas of his age permitted him to follow. Of his
intellectual eminence there cannot be a question,
but it is proved by his acts and not by his
theory .
The speculative universality of sovereignty
long continued to be associated with the Imperial
throne, and indeed was never thoroughly disso-
ciated from it so long as the empire of Germany
lasted . Territorial sovereignty-the view which
connects sovereignty with the possession of a
limited portion of the earth's surface-was dis-
tinctly an offshoot, though a tardy one , of feudal-
ism . This might have been expected à priori,
for it was feudalism which for the first time linked
personal duties, and by consequence personal
rights, to the ownership of land . Whatever be
94 MODERN HISTORY OF LAW OF NATURE (CHAP. IV

the proper view of its origin and legal nature, the

best mode of vividly picturing to ourselves the
feudal organisation is to begin with the basis ;
to consider the relation of the tenant to the patch
of soil which created and limited his services-and

then to mount up, through narrowing circles of

super-feudation, till we approximate to the apex
of the system. Where that summit exactly was
during the later portion of the dark ages it is not
easy to decide . Probably, wherever the concep-
tion of tribe sovereignty had really decayed, the
topmost point was always assigned to the supposed
successor of the Cæsars of the West . But before

long, when the actual sphere of Imperial authority

had immensely contracted , and when the emperors
had concentrated the scanty remains of their
power upon Germany and North Italy, the highest
feudal superiors in all the outlying portions of
the former Carlovingian empire found themselves
practically without a supreme head. Gradually
they habituated themselves to the new situation ,
and the fact of immunity put at last out of sight
the theory of dependence ; but there are many
symptoms that this change was not quite easily
accomplished ; and, indeed , to the impression that
in the nature of things there must necessarily be
a culminating domination somewhere, we may,
no doubt, refer the increasing tendency to attribute
secular superiority to the See of Rome. The
completion of the first stage in the revolution of
opinion is marked , of course , by the accession of
the Capetian dynasty in France . Before that
epoch arrived, several of the holders of the great
territorial fiefs into which the Carlovingian empire
CHAP. IV] TERRITORIAL SOVEREIGNTY 95

was now split up, had begun to call themselves

Kings, instead of Dukes or Counts ; but the
important change occurred when the feudal prince
of a limited territory surrounding Paris, usurped
from the earlier house their dynastic title of Kings
of the French. Hugues Capet and his descendants
were kings in quite a new sense, sovereigns standing
in the same relation to the soil of France as the
baron to his estate, the tenant to his freehold ;
and the old tribal appellation, though long retained
in the official Latin style of the reigning house,
passed rapidly, in the vernacular, into Kings of
France. The form of the monarchy in France
had visible effects in hastening changes which
were elsewhere proceeding in the same direction .
The kingship of our Anglo- Saxon regal houses was
midway between the chieftainship of a tribe and
a territorial supremacy ; but the superiority of
the Norman monarchs, imitated from that of the
King of France, was distinctly a territorial sove-
reignty. Every subsequent dominion which was
established or consolidated was formed on the

later model . Spain, Naples , and the principalities

founded on the ruins of municipal freedom in
Italy, were all under rulers whose sovereignty
was territorial. Few things , I may add, are

more curious than the gradual lapse of the

Venetians from one view to the other . At the
commencement of its foreign conquests, the re-
public regarded itself as an antitype of the
Roman commonwealth , governing a number of
subject provinces. Move a century onwards ,
and you find that it wishes to be looked upon
as a corporate sovereign, claiming the rights of
96 MODERN HISTORY OF LAW OF NATURE [CHAP. IV

a feudal suzerain over its possessions in Italy and

the Ægean .

During the period through which the popular

ideas on the subject of sovereignty were undergoing
this remarkable change, the system which stood
in the place of what we now call International
Law was heterogeneous in form and inconsistent
in the principles to which it appealed . Over so
much of Europe as was comprised in the Romano-
German empire, the connection of the confederate
states was regulated by the complex and as yet
incomplete mechanism of the Imperial constitu-
tion ; and, surprising as it may seem to us , it was
a favourite notion of German lawyers that the
relations of commonwealths , whether inside or
outside the empire , ought to be regulated not by
the Jus Gentium, but by the pure Roman jurispru-
dence of which Cæsar was still the centre . This

doctrine was less confidently repudiated in the

outlying countries than we might have supposed
antecedently ; but substantially, through the rest
of Europe feudal subordinations furnished a sub-
stitute for a public law ; and when those were
undetermined or ambiguous, there lay behind , in
theory at least, a supreme regulating force in the
authority of the head of the Church . It is certain ,
however, that both feudal and ecclesiastical influ-
ences were rapidly decaying during the fifteenth
and even the fourteenth century ; and if we
closely examine the current pretexts of wars, and
the avowed motives of alliances, it will be seen
that, step by step with the displacement of the
old principles, the views afterwards harmonised
and consolidated by Ayala and Grotius were
CHAP IV] GROTIUS 97

making considerable progress , though it was silent

and but slow. Whether the fusion of all the
sources of authority would ultimately have evolved
a system of international relations, and whether
that system would have exhibited material differ-
ences from the fabric of Grotius , is not now possible
to decide, for as a matter of fact the Reformation
annihilated all its potential elements except one.
Beginning in Germany, it divided the princes of
the empire by a gulf too broad to be bridged over
by the Imperial supremacy, even if the Imperial
superior had stood neutral . He, however, was
forced to take colour with the Church against the
reformers ; the Pope was, as a matter of course ,
in the same predicament ; and thus the two
authorities to whom belonged the office of media-
tion between combatants became themselves the

chiefs of one great faction in the schism of the

nations. Feudalism , already enfeebled and dis-
credited as a principle of public relations, furnished
no bond whatever which was stable enough to
countervail the alliances of religion . In a condi-
tion, therefore, of public law which was little less
than chaotic, those views of a state system to
which the Roman jurisconsults were supposed to
have given their sanction alone remained standing.
The shape, the symmetry, and the prominence
which they assumed in the hands of Grotius are
known to every educated man ; but the great
marvel of the treatise " De Jure Belli et Pacis ,"

was its rapid, complete, and universal success .

The horrors of the Thirty Years' War, the bound-
less terror and pity which the unbridled licence
of the soldiery was exciting, must, no doubt, be
7
98 MODERN HISTORY OF LAW OF NATURE [CHAP. IV

taken to explain that success in some measure ,

but they do not wholly account for it. Very
little penetration into the ideas of that age is
required to convince one that, if the ground- plan
of the international edifice which was sketched

in the great book of Grotius had not appeared

to be theoretically perfect, it would have been
discarded by jurists and neglected by statesmen
and soldiers .
It is obvious that the speculative perfection of
the Grotian system is intimately connected with
that conception of territorial sovereignty which we
have been discussing.
The theory of International
Law assumes that commonwealths are , relatively
to each other, in a state of nature ; but the com-
ponent atoms of a natural society must, by the
fundamental assumption, be insulated and inde-
pendent of each other. If there be a higher power
connecting them, however slightly and occasion-
ally, by the claim of common supremacy, the very
conception of a common superior introduces the
notion of positive Law, and excludes the idea of
a law natural . It follows, therefore, that if the
universal suzerainty of an Imperial head had been
admitted even in bare theory, the labours of
Grotius would have been idle. Nor is this the
only point of junction between modern public law
and those views of sovereignty of which I have
endeavoured to describe the development . I
have said that there are entire departments of
international jurisprudence which consist of the
Roman Law of Property. What then is the
inference ? It is, that if there had been no such
change as I have described in the estimate of
CHAP. IV] THE GROTIAN SYSTEM 99

sovereignty-if sovereignty had not been asso-

ciated with the proprietorship of a limited portion
of the earth, had not, in other words, become
territorial-three parts of the Grotian theory
would have been incapable of application.
 CHAPTER V

PRIMITIVE SOCIETY AND ANCIENT LAW

THE necessity of submitting the subject of juris-

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

brilliancy and plausibility than with practical

importance . They may be read in the intro-
ductory chapters of our own Blackstone, who has
100
CHAP. V] LOCKE AND HOBBES ΙΟΙ

transcribed them textually from Burlamaqui , and

wherever the manuals published in the present day

for the guidance of the student or the practitioner

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

characteristics of the præ-social state, and as to

the nature of the abnormal action by which men
lifted themselves out of it into that social organi-
sation with which alone we are acquainted, but
they agreed in thinking that a great chasm separ-
ated man in his primitive condition from man in
society, and this notion we cannot doubt that they
borrowed, consciously or unconsciously, from the
Romans . If indeed the phenomena of law be
regarded in the way in which these theorists
102 PRIMITIVE SOCIETY AND ANCIENT LAW [CHAP. V

regarded them-that is, as one vast complex

whole-it is not surprising that the mind should
often evade the task it has set to itself by falling
back on some ingenious conjecture which (plausibly
interpreted) will seem to reconcile everything, or
else that it should sometimes abjure in despair
the labour of systematisation .
From the theories of jurisprudence which have
the same speculative basis as the Roman doctrine
two of much celebrity must be excepted . The

first of them is that associated with the great

name of Montesquieu . Though there are some
ambiguous expressions in the early part of the
Esprit des Lois, which seem to show its writer's
unwillingness to break quite openly with the views
hitherto popular, the general drift of the book is
certainly to indicate a very different conception of
its subject from any which had been entertained
before. It has often been noticed that, amidst the
vast variety of examples which, in its immense
width of survey, it sweeps together from supposed
systems of jurisprudence, there is an evident
anxiety to thrust into especial prominence those
manners and institutions which astonish the
civilised reader by their uncouthness , strangeness ,

or indecency . The inference constantly suggested

is, that laws are the creatures of climate , local
situation, accident , or imposture-the fruit of any
causes except those which appear to operate with
tolerable constancy . Montesquieu seems , in fact,
to have looked on the nature of man as entirely

plastic, as passively reproducing the impressions ,

and submitting implicitly to the impulses, which
it receives from without . And here no doubt lies
CHAP. V] MONTESQUIEU 103

the error which vitiates his system as a system .

He greatly underrates the stability of human
nature . He pays little or no regard to the in-
herited qualities of the race, those qualities which
each generation receives from its predecessors , and
transmits but slightly altered to the generation
which follows it. It is quite true, indeed, that

no complete account can be given of social phe-

nomena, and consequently of laws, till due allow-
ance has been made for those modifying causes

which are noticed in the Esprit des Lois ; but

their number and their force appear to have been
over-estimated by Montesquieu . Many of the
anomalies which he parades have since been
shown to rest on false report or erroneous con-
struction, and of those which remain not a few
prove the permanence rather than the variableness

of man's nature, since they are relics of older

stages of the race which have obstinately defied
the influences that have elsewhere had effect .
The truth is that the stable part of our mental,
moral, and physical constitution is the largest
part of it, and the resistance it opposes to change
is such that, though the variations of human
society in a portion of the world are plain enough ,
they are neither so rapid nor so extensive that
their amount, character, and general direction
.
cannot be ascertained . An approximation to truth
may be all that is attainable with our present
knowledge, but there is no reason for thinking
that it is so remote , or (what is the same thing)
that it requires so much future correction, as to
be entirely useless and uninstructive.
The other theory which has been adverted to
104 PRIMITIVE SOCIETY AND ANCIENT LAW [CHAP. V

is, the historical theory of Bentham . This theory

which is obscurely (and, it might even be said,
timidly) propounded in several parts of Bentham's
works is quite distinct from that analysis of the
conception of law which he commenced in the
Fragment on Government," and which was more
recently completed by Mr. John Austin. The

resolution of a law into a command of a particular

nature, imposed under special conditions , does not
affect to do more than protect us against a diffi-
culty-a most formidable one certainly of lan-

guage . The whole question remains open as to

the motives of societies in imposing these com-
mands on themselves, as to the connection of these
commands with each other, and the nature of
their dependence on those which preceded them ,
and which they have superseded . Bentham sug-

gests the answer that societies modify, and have

always modified , their laws according to modifica-
tions of their views of general expediency. It is
difficult to say that this proposition is false , but
it certainly appears to be unfruitful . For that
which seems expedient to a society , or rather to
the governing part of it, when it alters a rule of
law, is surely the same thing as the object ,
whatever it may be , which it has in view when it
makes the change . Expediency and the greatest
good are nothing more than different names for
the impulse which prompts the modification ; and
when we lay down expediency as the rule of change
in law or opinion , all we get by the proposition is
the substitution of an express term for a term
which is necessarily implied when we say that a
change takes place.
CHAP. V] PROPER MODE OF INQUIRY 105

There is such wide-spread dissatisfaction with

existing theories of jurisprudence, and so general
a conviction that they do not really solve the
questions they pretend to dispose of, as to justify
the suspicion that some line of inquiry, necessary
to a perfect result, has been incompletely followed
or altogether omitted by their authors. And
indeed there is one remarkable omission with
which all these speculations are chargeable , except
perhaps those of Montesquieu . They take no
account of what law has actually been at epochs
remote from the particular period at which they
made their appearance . Their originators care-
fully observed the institutions of their own age
and civilisation, and those of other ages and
civilisations with which they had some degree of
intellectual sympathy, but, when they turned their
attention to archaic states of society which ex-
hibited much superficial difference from their own,
they uniformly ceased to observe and began
guessing. The mistake which they committed is
therefore analogous to the error of one who, in
investigating the laws of the material universe,
should commence by contemplating the existing
physical world as a whole, instead of beginning
with the particles which are its simplest ingre-
dients . One does not certainly see why such a
scientific solecism should be more defensible in

jurisprudence than in any other region of thought.

It would seem antecedently that we ought to
commence with the simplest social forms in a state
as near as possible to their rudimentary condition .
In other words , if we followed the course usual in
such inquiries, we should penetrate as far up as
106 PRIMITIVE SOCIETY AND ANCIENT LAW [CHAP. V

we could in the history of primitive societies .

The phenomena which early societies present us
with are not easy at first to understand , but the
difficulty of grappling with them bears no pro-
portion to the perplexities which beset us in con-
sidering the baffling entanglement of modern
social organisation . It is a difficulty arising from
their strangeness and uncouthness , not from their
number and complexity . One does not readily
get over the surprise which they occasion when
looked at from a modern point of view ; but when
that is surmounted they are few enough and simple
enough . But, even if they gave more trouble
than they do, no pains would be wasted in ascer-
taining the germs out of which has assuredly been
unfolded every form of moral restraint which
controls our actions and shapes our conduct at
the present moment.
The rudiments of the social state , so far as they
are known to us at all, are known through testi-
mony of three sorts - accounts by contemporary
observers of civilisations less advanced than their

own, the records which particular races have

preserved concerning their primitive history , and
ancient law . The first kind of evidence is the
best we could have expected . As societies do not
advance concurrently, but at different rates of
progress , there have been epochs at which men
trained to habits of methodical observation have

really been in a position to watch and describe

the infancy of mankind . Tacitus made the most
of such an opportunity ; but the Germany, unlike
most celebrated classical books , has not induced
others to follow the excellent example set by its
CHAP. V] THE GERMANY OF TACITUS 107

author, and the amount of this sort of testimony

which we possess is exceedingly small . The lofty
contempt which a civilised people entertains for
barbarous neighbours has caused a remarkable
negligence in observing them, and this carelessness
has been aggravated at times by fear, by religious
prejudice, and even by the use of these very terms
-civilisation and barbarism-which convey to
most persons the impression of a difference not
merely in degree but in kind . Even the Germany
has been suspected by some critics of sacrificing
fidelity to poignancy of contrast and picturesque-
ness of narrative . Other histories, too , which
have been handed down to us among the archives
of the people to whose infancy they relate have
been thought distorted by the pride of race or
by the religious sentiment of a newer age . It is
important then to observe that these suspicions ,
whether groundless or rational , do not attach to
a great deal of archaic law. Much of the old law
which has descended to us was preserved merely
because it was old . Those who practised and
obeyed it did not pretend to understand it ; and
in some cases they even ridiculed and despised it.
They offered no account of it except that it had
come down to them from their ancestors . If we
confine our attention , then , to those fragments of
ancient institutions which cannot reasonably be

supposed to have been tampered with , we are able

to gain a clear conception of certain great cha-
racteristics of the society to which they originally

belonged . Advancing a step further, we can

apply our knowledge to systems of law which ,
like the Code of Manu , are as a whole of suspicious
108 PRIMITIVE SOCIETY AND ANCIENT LAW [CHAP. V

authenticity ; and using the key we have obtained ,

we are in a position to discriminate those portions
of them which are truly archaic from those which
have been affected by the prejudices, interests ,
or ignorance of the compiler. It will at least be
acknowledged that , if the materials for this process
are sufficient, and if the comparisons be accurately
executed, the methods followed are as little objec-
tionable as those which have led to such surprising
results in comparative philology .
The effect of the evidence derived from com-
parative jurisprudence is to establish that view of
the primæval condition of the human race which
is known as the Patriarchal Theory . There is no
doubt, of course, that this theory was originally
based on the Scriptural history of the Hebrew
patriarchs in Lower Asia ; but, as has been ex-
plained already, its connection with Scripture
rather militated than otherwise against its recep-

tion as a complete theory, since the majority of

the inquirers who till recently addressed themselves
with most earnestness to the colligation of social
phenomena, were either influenced by the strongest
prejudice against Hebrew antiquities or by the
strongest desire to construct their system without
the assistance of religious records. Even now
there is perhaps a disposition to undervalue these
accounts , or rather to decline generalising from
them, as forming part of the traditions of a Semitic
people. It is to be noted, however, that the legal
testimony comes nearly exclusively from the insti-
tutions of societies belonging to the Indo- European
stock, the Romans, Hindoos, and Sclavonians
supplying the greater part of it ; and indeed the
CHAP. V] SCRIPTURAL ACCOUNTS 109

difficulty, at the present stage of the inquiry, is to

know where to stop , to say of what races of men
it is not allowable to lay down that the society in
which they are united was originally organised
on the patriarchal model. The chief lineaments of
such a society, as collected from the early chapters
in Genesis, I need not attempt to depict with any
minuteness , both because they are familiar to most
of us from our earliest childhood, and because ,
from the interest once attaching to the contro-
versy which takes its name from the debate be-

tween Locke and Filmer, they fill a whole chapter,

though not a very profitable one, in English litera-
ture. The points which lie on the surface of the
history are these :-The eldest male parent–
the eldest ascendant-is absolutely supreme in
his household . His dominion extends to life and
death, and is as unqualified over his children and
their houses as over his slaves ; indeed , the re-
lations of sonship and serfdom appear to differ in
little beyond the higher capacity which the child
in blood possesses of becoming one day the head
of a family himself. The flocks and herds of the
children are the flocks and herds of the father,
and the possessions of the parent, which he holds
in a representative rather than in a proprietary
character, are equally divided at his death among
his descendants in the first degree, the eldest son
sometimes receiving a double share under the name
of birthright, but more generally endowed with
no hereditary advantage beyond an honorary
precedence . A less obvious inference from the
Scriptural accounts is that they seem to plant us
on the traces of the breach which is first effected
110 PRIMITIVE SOCIETY AND ANCIENT LAW (CHAP. V

in the empire of the parent. The families of Jacob

and Esau separate and form two nations ; but
the families of Jacob's children hold together and
become a people . This looks like the immature
germ of a state or commonwealth, and of an order
of rights superior to the claims of family relation .
If I were attempting , for the more special pur-
poses of the jurist, to express compendiously the
characteristics of the situation in which mankind

disclose themselves at the dawn of their history,

I should be satisfied to quote a few verses from the
Odyssey of Homer :

τοῖσιν δ᾽ οὔτ᾽ ἀγοραὶ βουληφόροι οὔτε θέμιστες,

θεμιστεύει δὲ ἕκαστος
παίδων ἠδ᾽ ἀλόχων, οὐδ᾽ ἀλλήλων ἀλέγουσιν.

""
' They have neither assemblies for consultation
nor themistes, but every one exercises jurisdiction
over his wives and his children , and they pay no

regard to one another." These lines are applied

to the Cyclops, and it may not perhaps be an
altogether fanciful idea when I suggest that the
Cyclops is Homer's type of an alien and less
advanced civilisation ; for the almost physical
loathing which a primitive community feels for
men of widely different manners from its own
usually expresses itself by describing them as
monsters, such as giants, or even (which is almost
always the case in Oriental mythology) as demons.
However that may be, the verses condense in
themselves the sum of the hints which are given
us by legal antiquities . Men are first seen dis-
tributed in perfectly insulated groups, held to-
gether by obedience to the parent . Law is the
CHAP. V] PRIMITIVE SOCIETY III

parent's word, but it is not yet in the condition of

those themistes which were analysed in the first
chapter of this work. When we go forward to
the state of society in which these early legal
conceptions show themselves as formed, we find
that they still partake of the mystery and spon-
taneity which must have seemed to characterise
a despotic father's commands, but that at the
same time, inasmuch as they proceed from a
sovereign, they presuppose a union of family
groups in some wider organisation . The next
question is, what is the nature of this union and
the degree of intimacy which it involves ? It is

just here that archaic law renders us one of the

greatest of its services, and fills up a gap which
otherwise could only have been bridged by
conjecture . It is full, in all its provinces, of the
clearest indications that society in primitive times
was not what it is assumed to be at present , a
collection of individuals . In fact, and in the view
of the men who composed it, it was an aggregation
of families. The contrast may be most forcibly
expressed by saying that the unit of an ancient
society was the Family, of a modern society the
individual. We must be prepared to find in
ancient law all the consequences of this difference .
It is so framed as to be adjusted to a system of
small independent corporations . It is therefore
scanty, because it is supplemented by the despotic
commands of the heads of households . It is
ceremonious, because the transactions to which it
pays regard resemble international concerns much
more than the quick play of intercourse between
individuals . Above all , it has a peculiarity
112 PRIMITIVE SOCIETY AND ANCIENT LAW [CHAP. V

of which the full importance cannot be shown

at present . It takes a view of life wholly
unlike any which appears in developed juris-
prudence. Corporations never die, and accordingly
primitive law considers the entities with which it
deals, i.e. , the patriarchal or family groups , as
perpetual and inextinguishable . This view is
closely allied to the peculiar aspect under which ,
in very ancient times, moral attributes present
themselves . The moral elevation and moral de-
basement of the individual appear to be con-
founded with , or postponed to , the merits and
offences of the group to which the individual
belongs. If the community sins , its guilt is much
more than the sum of the offences committed by
its members ; the crime is a corporate act , and
extends in its consequences to many more persons
than have shared in its actual perpetration . If,
on the other hand , the individual is conspicuously
guilty, it is his children , his kinsfolk, his tribesmen ,
or his fellow- citizens who suffer with him , and
sometimes for him . It thus happens that the
ideas of moral responsibility and retribution often
seem to be more clearly realised at very ancient
than at more advanced periods , for, as the family
group is immortal , and its liability to punishment
indefinite, the primitive mind is not perplexed
by the questions which become troublesome as
soon as the individual is conceived as altogether
separate from the group . One step in the tran-
sition from the ancient and simple view of the
matter to the theological or metaphysical ex-
planations of later days is marked by the early
Greek notion of an inherited curse. The bequest
CHAP. V] FROM FAMILIES TO TRIBE 113

received by his posterity from the original criminal

was not a liability to punishment, but a liability
to the commission of fresh offences which drew
with them a condign retribution ; and thus the
responsibility of the family was reconciled with
the newer phase of thought which limited the
consequences of crime to the person of the actual
delinquent .
It would be a very simple explanation of the
origin of society if we could base a general con-
clusion on the hint furnished us by the Scriptural

example already adverted to , and could suppose

that communities began to exist wherever a family
held together instead of separating at the death
of its patriarchal chieftain . In most of the Greek
states and in Rome there long remained the
vestiges of an ascending series of groups out of
which the State was at first constituted . The
Family, House, and Tribe of the Romans may be

taken as the type of them, and they are so described

to us that we can scarcely help conceiving them
as a system of concentric circles which have

gradually expanded from the same point . The

elementary group is the Family, connected by
common subjection to the highest male descendant .
The aggregation of Families forms the Gens or
House . The aggregation of Houses makes the
Tribe . The aggregation of Tribes constitutes the
commonwealth . Are we at liberty to follow these
indications, and to lay down that the common-
wealth is a collection of persons united by common
descent from the progenitor of an original family ?
Of this we may at least be certain , that all ancient
societies regarded themselves as having proceeded
8
114 PRIMITIVE SOCIETY AND ANCIENT LAW [CHAP. V

from one original stock, and even laboured under

an incapacity for comprehending any reason

except this for their holding together in political
union . The history of political ideas begins , in
fact , with the assumption that kinship in blood
is the sole possible ground of community in
political functions ; nor is there any of those
subversions of feeling, which we term emphatically
revolutions, so startling and so complete as the
change which is accomplished when some other
principle-such as that, for instance, of local
contiguity-establishes itself for the first time as
the basis of common political action . It may be
affirmed, then, of early commonwealths that their
citizens considered all the groups in which they
claimed membership to be founded on common
lineage . What was obviously true of the Family
was believed to be true first of the House, next of
the Tribe, lastly of the State . And yet we find
that along with this belief, or, if we may use
the word, this theory, each community preserved
records or traditions which distinctly showed that
the fundamental assumption was false . Whether
we look to the Greek States, or to Rome, or to the
Teutonic aristocracies in Ditmarsh which furnished
Niebuhr with so many valuable illustrations , or
to the Celtic clan associations , or to that strange
social organisation of the Sclavonic Russians and
Poles which has only lately attracted notice ,
everywhere we discover traces of passages in their
history when men of alien descent were admitted
to, and amalgamated with, the original brother-
hood . Adverting to Rome singly, we perceive

that the primary group, the Family, was being

CHAP. V] FICTION OF ADOPTION 115

constantly adulterated by the practice of adoption ,

while stories seem to have been always current
respecting the exotic extraction of one of the
original Tribes, and concerning a large addition to
the Houses made by one of the early kings . The
composition of the state uniformly assumed to be
natural was nevertheless known to be in great
measure artificial. This conflict between belief

or theory and notorious fact is at first sight

extremely perplexing ; but what it really illus-
trates is the efficiency with which Legal Fictions
do their work in the infancy of society . The
earliest and most extensively employed of legal
fictions was that which permitted family relations
to be created artificially, and there is none to which
I conceive mankind to be more deeply indebted .
If it had never existed , I do not see how any one
of the primitive groups, whatever were their
nature, could have absorbed another, or on what
terms any two of them could have combined,
except those of absolute superiority on one side
and absolute subjection on the other. No doubt ,
when with our modern ideas we contemplate the
union of independent communities , we can suggest
a hundred modes of carrying it out, the simplest
of all being that the individuals comprised in the
coalescing groups shall vote or act together accord-
ing to local propinquity ; but the idea that a num-
ber of persons should exercise political rights in
common simply because they happened to live
within the same topographical limits was utterly
strange and monstrous to primitive antiquity.
The expedient which in those times commanded
favour was that the incoming population should
116 PRIMITIVE SOCIETY AND ANCIENT LAW [CHAP. V

feign themselves to be descended from the same

stock as the people on whom they were engrafted ;
and it is precisely the good faith of this fiction , and
the closeness with which it seemed to imitate

reality, that we cannot now hope to understand .

One circumstance, however, which it is important
to recollect, is that the men who formed the various
political groups were certainly in the habit of
meeting together periodically for the purpose of
acknowledging and consecrating their association
by common sacrifices . Strangers amalgamated
with the brotherhood were doubtless admitted to
these sacrifices ; and when that was once done ,
we can believe that it seemed equally easy, or not
more difficult, to conceive them as sharing in the
common lineage. The conclusion, then, which
is suggested by the evidence is, not that all early
societies were formed by descent from the same
ancestor, but that all of them which had any
permanence and solidity either were so descended
or assumed that they were. An indefinite number

of causes may have shattered the primitive groups ,

but wherever their ingredients recombined , it was
on the model or principle of an association of
kindred . Whatever were the facts, all thought,
language , and law adjusted themselves to the
assumption . But though all this seems to me to
be established with reference to the communities
with whose records we are acquainted, the re-
mainder of their history sustains the position
.
before laid down as to the essentially transient and
terminable influence of the most powerful Legal
Fictions. At some point of time-probably as
soon as they felt themselves strong enough to
CHAP. V] THE ANCIENT FAMILY 117

resist extrinsic pressure-all these states ceased

to recruit themselves by factitious extensions
of consanguinity. They necessarily, therefore ,
became Aristocracies, in all cases where a fresh
population from any cause collected around them

which could put in no claim to community of

origin . Their sternness in maintaining the central
principle of a system under which political rights
were attainable on no terms whatever except
connection in blood, real or artificial, taught their
inferiors another principle, which proved to be
endowed with a far higher measure of vitality.
This was the principle of local contiguity, now
recognised everywhere as the condition of com-
munity in political functions . A new set of
political ideas came at once into existence , which,
being those of ourselves, our contemporaries, and
in great measure of our ancestors, rather obscure

our perception of the older theory which they

vanquished and dethroned .
The family, then, is the type of an archaic
society in all the modifications which it was
capable of assuming ; but the family here spoken
of is not exactly the family as understood by a
modern. In order to reach the ancient conception

we must give to our modern ideas an important

extension and an important limitation . We must
look on the family as constantly enlarged by the
absorption of strangers within its circle, and we
must try to regard the fiction of adoption as so
closely simulating the reality of kinship that
neither law nor opinion makes the slightest differ-
ence between a real and an adoptive connection .
On the other hand, the persons theoretically
118 PRIMITIVE SOCIETY AND ANCIENT LAW [CHAP. V

amalgamated into a family by their common

descent are practically held together by common
obedience to their highest living ascendant, the
father , grandfather, or great-grandfather. The

patriarchal authority of a chieftain is as necessary

an ingredient in the notion of the family group as
the fact (or assumed fact) of its having sprung
from his loins ; and hence we must understand
that if there be any persons who, however truly
included in the brotherhood by virtue of their
blood-relationship, have nevertheless de facto with-
drawn themselves from the empire of its ruler,
they are always, in the beginnings of law, con-
sidered as lost to the family. It is this patriarchal
aggregate the modern family thus cut down on
one side and extended on the other-which meets
us on the threshold of primitive jurisprudence .
Older, probably, than the State, the Tribe, and
the House, it left traces of itself on private law
long after the House and the Tribe had been
forgotten, and long after consanguinity had ceased
to be associated with the composition of States.
It will be found to have stamped itself on all the
great departments of jurisprudence, and may be
detected, I think, as the true source of many of
their most important and most durable character-
istics .At the outset, the peculiarities of law in
its most ancient state lead us irresistibly to the
conclusion that it took precisely the same view of
the family group which is taken of individual men
by the systems of rights and duties now prevalent
throughout Europe . There are societies open to
our observation at this very moment whose laws
and usages can scarcely be explained unless they
CHAP. V] PATRIA POTESTAS 119

are supposed never to have emerged from this

primitive condition ; but in communities more for-
tunately circumstanced the fabric of jurisprudence
fell gradually to pieces , and if we carefully observe
the disintegration we shall perceive that it took
place principally in those portions of each system
which were most deeply affected by the primitive
conception of the family. In one all-important
instance, that of the Roman law, the change was
effected so slowly, that from epoch to epoch we
can observe the line and direction which it fol-
lowed, and can even give some idea of the ultimate
result to which it was tending. And in pursuing
this last inquiry we need not suffer ourselves to be
stopped by the imaginary barrier which separates
the modern from the ancient world . For one
effect of that mixture of refined Roman law with

primitive barbaric usage , which is known to us by

the deceptive name of feudalism , was to revive
many features of archaic jurisprudence which had
died out of the Roman world , so that the decom-
position which had seemed to be over commenced
again, and to some extent is still proceeding .
On a few systems of law the family organisation
of the earliest society has left a plain and broad
mark in the life-long authority of the Father or
other ancestor over the person and property of
his descendants , an authority which we may con-
veniently call by its later Roman name of Patria
Potestas. No feature of the rudimentary associa-
tions of mankind is deposed to by a greater amount
of evidence than this, and yet none seems to have
disappeared so generally and so rapidly from the
usages of advancing communities. Gaius, writing
120 PRIMITIVE SOCIETY AND ANCIENT LAW (CHAP. V

under the Antonines, describes the institution as

distinctively Roman . It is true that, had he
glanced across the Rhine or the Danube to those
tribes of barbarians which were exciting the
curiosity of some among his contemporaries , he
would have seen examples of patriarchal power
in its crudest form ; and in the far East a branch
of the same ethnical stock from which the Romans
sprang was repeating their Patria Potestas in
some of its most technical incidents . But among
the races understood to be comprised within the
Roman Empire , Gaius could find none which
exhibited an institution resembling the Roman
" Power of the Father," except only the Asiatic
Galatæ. There are reasons , indeed, as it seems
to me, why the direct authority of the ancestor
should, in the greater number of progressive
societies , very shortly assume humbler proportions
than belonged to it in their earliest state. The

implicit obedience of rude men to their parent is

doubtless a primary fact, which it would be absurd
to explain away altogether by attributing to them
any calculation of its advantages ; but, at the same
time , if it is natural in the sons to obey the father,
it is equally natural that they should look to him
.
for superior strength or superior wisdom. Hence,
when societies are placed under circumstances
which cause an especial value to be attached to
bodily and mental vigour, there is an influence at
work which tends to confine the Patria Potestas

to the cases where its possessor is actually skilful

and strong. When we obtain our first glimpse
of organised Hellenic society, it seems as if super-
eminent wisdom would keep alive the father's
CHAP. V PATRIA POTESTAS 121

power in persons whose bodily strength had de-

cayed ; but the relations of Ulysses and Laertes
in the Odyssey appear to show that, where extra-
ordinary valour and sagacity were united in the
son, the father in the decrepitude of age was
deposed from the headship of the family. In the
mature Greek jurisprudence , the rule advances a
few steps on the practice hinted at in the Homeric
literature ; and though very many traces of
stringent family obligation remain, the direct
authority of the parent is limited , as in European
codes, to the nonage or minority of the children,
or, in other words, to the period during which
their mental and physical inferiority may always
be presumed. The Roman law, however, with its
remarkable tendency to innovate on ancient usage
only just so far as the exigency of the common-
wealth may require, preserves both the primeval
institution and the natural limitation to which I
conceive it to have been subject . In every relation
of life in which the collective community might
have occasion to avail itself of his wisdom and

strength, for all purposes of counsel or of war,

the Filius Familias, or Son under Power, was as
free as his father. It was a maxim of Roman

jurisprudence that the Patria Potestas did not

extend to the Jus Publicum. Father and son
voted together in the city, and fought side by side
in the field ; indeed, the son, as general, might
happen to command the father, or, as magistrate,
decide on his contracts and punish his delinquen-
cies. But in all the relations created by Private
Law, the son lived under a domestic despotism
which, considering the severity it retained to the
122 PRIMITIVE SOCIETY AND ANCIENT LAW [CHAP. V

last, and the number of centuries through which it

endured, constitutes one of the strangest problems
in legal history .
The Patria Potestas of the Romans, which is
necessarily our type of the primeval paternal
authority, is equally difficult to understand as an
institution of civilised life , whether we consider its
incidence on the person or its effects on property .
It is to be regretted that a chasm which exists in
its history cannot be more completely filled . So
far as regards the person, the parent, when our
information commences, has over his children the
jus vitæ necisque, the power of life and death, and
à fortiori of uncontrolled corporal chastisement ;
he can modify their personal condition at pleasure ;
he can give a wife to his son ; he can give his
daughter in marriage ; he can divorce his children
of either sex ; he can transfer them to another
family by adoption ; and he can sell them. Late

in the Imperial period we find vestiges of all these

powers, but they are reduced within very narrow
limits. The unqualified right of domestic chas-
tisement has become a right of bringing domestic
offences under the cognisance of the civil magis-
trate ; the privilege of dictating marriage has
declined into a conditional veto ; the liberty of

selling has been virtually abolished , and adoption

itself, destined to lose almost all its ancient im-
portance in the reformed system of Justinian, can
no longer be effected without the assent of the
child transferred to the adoptive parentage . In
short, we are brought very close to the verge of

the ideas which have at length prevailed in the

modern world . " But between these widely distant
CHAP. V] PATRIA POTESTAS 123

epochs there is an interval of obscurity, and we

can only guess at the causes which permitted the
Patria Potestas to last as long as it did by rendering
it more tolerable than it appears . The active
discharge of the most important among the duties
which the son owed to the state must have tem-
pered the authority of his parent , if they did not
annul it . We can readily persuade ourselves that
the paternal despotism could not be brought into
play, without great scandal, against a man of full
age occupying a high civil office . During the
earlier history, however, such cases of practical
emancipation would be rare compared with those
which must have been created by the constant
wars of the Roman republic . The military tribune
and the private soldier, who were in the field
three-quarters of a year during the earlier contests,
at a later period the proconsul in charge of a
province, and the legionaries who occupied it ,
cannot have had practical reason to regard them-
selves as the slaves of a despotic master ; and
all these avenues of escape tended constantly to
multiply themselves . Victories led to conquests ,
conquests to occupations ; the mode of occupation
by colonies was exchanged for the system of
occupying provinces by standing armies. Each
step in advance was a call for the expatriation of
more Roman citizens , and a fresh draft on the
blood of the failing Latin race. We may infer, I
think, that a strong sentiment in favour of the
relaxation of the Patria Potestas had become fixed

by the time that the pacification of the world

commenced on the establishment of the Empire.
The first serious blows at the ancient institution
124 PRIMITIVE SOCIETY AND ANCIENT LAW [CHAP. V

are attributed to the earlier Cæsars, and some

isolated interferences of Trajan and Hadrian seem
to have prepared the ground for a series of express
enactments which, though we cannot always de-
termine their dates , we know to have limited the
father's powers on the one hand, and on the other
to have multiplied facilities for their voluntary
surrender. The older mode of getting rid of the
Potestas, by effecting a triple sale of the son's
person, is evidence , I may remark , of a very early
feeling against the unnecessary prolongation of
the powers . The rule which declared that the

son should be free after having been three times

sold by his father seems to have been originally
meant to entail penal consequences on a practice
which revolted even the imperfect morality of the
primitive Roman. But even before the publica-
tion of the Twelve Tables, it had been turned, by
the ingenuity of the jurisconsults , into an expedient
for destroying the parental authority wherever the
father desired that it should cease.

Many of the causes which helped to mitigate

the stringency of the father's power over the
persons of his children are doubtless among those
which do not lie upon the face of history . We
cannot tell how far public opinion may have
paralysed an authority which the law conferred ;
or how far natural affection may have rendered
it endurable . But though the powers over the
person may have been latterly nominal, the whole
tenour of the extant Roman jurisprudence suggests
that the father's rights over the son's property
were always exercised without scruple to the full
extent to which they were sanctioned by law.
CHAP. V] PATRIA POTESTAS
125

There is nothing to astonish us in the latitude of

these rights when they first show themselves.
The ancient law of Rome forbade the Children
under Power to hold property apart from their
parent, or (we should rather say) never contem-
plated the possibility of their claiming a separate
ownership . The father was entitled to take the
whole of the son's acquisitions, and to enjoy the
benefit of his contracts , without being entangled

in any compensating liability . So much as this

we should expect from the constitution of the
earliest Roman society ; for we can hardly form
a notion of the primitive family group unless we
suppose that its members brought their earnings
of all kinds into the common stock, while they
were unable to bind it by improvident individual
engagements . The true enigma of the Patria
Potestas does not reside here, but in the slowness
with which these proprietary privileges of the

parent were curtailed, and in the circumstance

that, before they were seriously diminished , the
whole civilised world was brought within their
sphere. No innovation of any kind was attempted
till the first years of the Empire, when the acquisi-
tions of soldiers on service were withdrawn from

the operation of the Patria Potestas, doubtless

as part of the reward of the armies which had
overthrown the free commonwealth . Three cen-

turies afterwards the same immunity was extended

to the earnings of persons who were in the civil
employment of the state. Both changes were
obviously limited in their application , and they
were so contrived in technical form as to interfere

as little as possible with the principle of Patria

126 PRIMITIVE SOCIETY AND ANCIENT LAW [CHAP. V

Potestas . A certain qualified and dependent

ownership had always been recognised by the

Roman law in the perquisites and savings which
slaves and sons under power were not compelled
to include in the household accounts, and the

special name of this permissive property , Peculium ,

was applied to the acquisitions newly relieved from
Patria Potestas, which were called in the case of
soldiers Castrense Peculium, and Quasi -castrense
Peculium in the case of civil servants . Other
modifications of the parental privileges followed ,
which showed a less studious outward respect for
the ancient principle . Shortly after the introduc-
tion of the Quasi- castrense Peculium, Constantine
the Great took away the father's absolute control
over property which his children had inherited
from their mother, and reduced it to a usufruct,
or life-interest . A few more changes of slight

importance followed in the Western Empire , but

the furthest point reached was in the East , under
Justinian, who enacted that unless the acquisitions
of the child were derived from the parent's own
property, the parent's right over them should not
extend beyond enjoying their produce for the
period of his life . Even this , the utmost relaxation
of the Roman Patria Potestas, left it far ampler
and severer than any analogous institution of the
modern world . The earliest modern writers on

jurisprudence remark that it was only the fiercer

and ruder of the conquerors of the Empire, and
notably the nations of Sclavonic origin , which
exhibited a Patria Potestas at all resembling that
which was described in the Pandects and the

Code. All the Germanic immigrants seem to have

CHAP. V PATRIA POTESTAS 127

recognised a corporate union of the family under

the mund, or authority of a patriarchal chief ;
but his powers are obviously only the relics of
a decayed Patria Potestas, and fell far short of
those enjoyed by the Roman father. The Franks
are particularly mentioned as not having the
Roman Institution , and accordingly the old French
lawyers, even when most busily engaged in filling
the interstices of barbarous customs with rules of

Roman law, were obliged to protect themselves

against the intrusion of the Potestas by the express
maxim, Puyssance de père en France n'a lieu . The
tenacity of the Romans in maintaining this relic of
their most ancient condition is in itself remarkable,
but it is less remarkable than the diffusion of the
Potestas over the whole of a civilisation from which
it had once disappeared . While the Castrense
Peculium constituted as yet the sole exception to
the father's power over property , and while his
power over his children's persons was still exten-
sive, the Roman citizenship, and with it the Patria
Potestas, were spreading into every corner of the
Empire. Every African or Spaniard, every Gaul,
Briton, or Jew, who received this honour by gift,
purchase, or inheritance, placed himself under
the Roman Law of Persons, and, though our
authorities intimate that children born before the

acquisition of citizenship could not be brought

under Power against their will, children born after
it and all ulterior descendants were on the ordinary
footing of a Roman filius familias. It does not
fall within the province of this treatise to examine
the mechanism of the later Roman society, but I
may be permitted to remark that there is little
128 PRIMITIVE SOCIETY AND ANCIENT LAW [CHAP. V

foundation for the opinion which represents the

constitution of Antoninus Caracalla conferring
Roman citizenship on the whole of his subjects
as a measure of small importance . However we
may interpret it, it must have enormously enlarged
the sphere of the Patria Potestas, and it seems to
me that the tightening of family relations which
it effected is an agency which ought to be kept in
view more than it has been, in accounting for the
great moral revolution which was transforming
the world .
Before this branch of our subject is dismissed ,
it should be observed that the Paterfamilias was

answerable for the delicts (or torts) of his Sons

under Power. He was similarly liable for the
torts of his slaves ; but in both cases he originally
possessed the singular privilege of tendering the
delinquent's person in full satisfaction of the
damage . The responsibility thus incurred on
behalf of sons , coupled with the mutual incapacity
of Parent and Child under Power to sue one

another, has seemed to some jurists to be best

explained by the assumption of a " unity of
person " between the Paterfamilias and the Filius-

familias. In the Chapter on Successions I shall

attempt to show in what sense, and to what extent,
unity " can be accepted as a reality.
this " unity I can
only say at present that these responsibilities of
the Paterfamilias, and other legal phenomena
which will be discussed hereafter , appear to me to
point at certain duties of the primitive Patriarchal
chieftain which balanced his rights . I conceive
that, if he disposed absolutely of the persons
and fortunes of his clansmen , this representative
CHAP. V] PATRIA POTESTAS 129

ownership was coextensive with a liability to pro-

vide for all members of the brotherhood out of

the common fund . The difficulty is to throw our-

selves out of our habitual associations sufficiently
for conceiving the nature of his obligation . It was
not a legal duty, for law had not yet penetrated
into the precinct of the Family. To call it moral
is perhaps to anticipate the ideas belonging to a
later stage of mental development ; but the ex-
pression " moral obligation " is significant enough
for our purpose , if we understand by it a duty
semi-consciously followed and enforced rather by
instinct and habit than by definite sanctions .
The Patria Potestas , in its normal shape, has
not been, and, as it seems to me , could not have
been, a generally durable institution . The proof
of its former universality is therefore incomplete
so long as we consider it by itself ; but the demon-
stration may be carried much further by examining
other departments of ancient law which depend
on it ultimately, but not by a thread of connection
visible in all its parts or to all eyes . Let us turn
for example to Kinship, or in other words, to the
scale on which the proximity of relatives to each
other is calculated in archaic jurisprudence . Here
again it will be convenient to employ the Roman
terms, Agnatic and Cognatic relationship . Cog-
natic relationship is simply the conception of
kinship familiar to modern ideas it is the relation-
ship arising through common descent from the
same pair of married persons , whether the descent
be traced through males or females . Agnatic
relationship is something very different : it ex-
cludes a number of persons whom we in our day
9
130 PRIMITIVE SOCIETY AND ANCIENT LAW [CHAP. V

should certainly consider of kin to ourselves, and

it includes many more whom we should never
reckon among our kindred . It is in truth the
connection existing between the members of the
Family, conceived as it was in the most ancient
times. The limits of this connection are far
from conterminous with those of modern relation-

ship .
Cognates then are all those persons who can
trace their blood to a single ancestor and ances-
tress ; or if we take the strict technical meaning
of the word in Roman law, they are all who trace
their blood to the legitimate marriage of a common
66
pair. Cognation " is therefore a relative term ,
and the degree of connection in blood which it
indicates depends on the particular marriage
which is selected as the commencement of the

calculation. If we begin with the marriage of

father and mother, Cognation will only express
we
the relationship of brothers and sisters ; if
take that of the grandfather and grandmother,
then uncles, aunts, and their descendants will
also be included in the notion of Cognation, and
following the same process a larger number of
Cognates may be continually obtained by choosing
the starting point higher and higher up in the line
of ascent. All this is easily understood by a
modern ; but who are the Agnates ? In the first
place, they are all the Cognates who trace their
connection exclusively through males. A table
of Cognates is, of course , formed by taking each
lineal ancestor in turn and including all his de-
scendants of both sexes in the tabular view ; if
then, in tracing the various branches of such a
CHAP. V] AGNATION AND COGNATION 131

genealogical table or tree, we stop whenever we

come to the name of a female and pursue that
particular branch or ramification no further, all
who remain after the descendants of women have

been excluded are Agnates, and their connection

together is Agnatic Relationship . I dwell a little
on the process which is practically followed in
separating them from the Cognates, because it
explains a memorable legal maxim, " Mulier est
finis familiæ "-a woman is the terminus of the

family. A female name closes the branch or twig

of the genealogy in which it occurs . None of
the descendants of a female are included in the

primitive notion of family relationship .

If the system of archaic law at which we are
looking be one which admits Adoption , we must
add to the Agnates thus obtained all persons,
male or female, who have been brought into the
family by the artificial extension of its boundaries.
But the descendants of such persons will only be
Agnates, if they satisfy the conditions which have
just been described .
What then is the reason of this arbitrary in-
clusion and exclusion ? Why should a conception
of Kinship so elastic as to include strangers brought
into the family by adoption , be nevertheless so
narrow as to shut out the descendants of a female
member ? To solve these questions we must recur
to the Patria Potestas . The foundation of Agna-
tion is not the marriage of Father and Mother, but
the authority of the Father. All persons are
Agnatically connected together who are under the
same Paternal Power, or who have been under it,
or who might have been under it if their lineal
132 PRIMITIVE SOCIETY AND ANCIENT LAW [CHAP. V

ancestor had lived long enough to exercise his

empire . In truth, in the primitive view, Relation-
ship is exactly limited by Patria Potestas . Where
the Potestas begins , Kinship begins ; and there-
fore adoptive relatives are among the kindred .
Where the Potestas ends, Kinship ends ; so that
a son emancipated by his father loses all rights
of Agnation. And here we have the reason why
the descendants of females are outside the limits

of archaic kinship . If a woman died unmarried ,

she could have no legitimate descendants . If she
married , her children fell under the Patria Potestas,
not of her Father, but of her Husband, and thus
were lost to her own family. It is obvious that
the organisation of primitive societies would have
been confounded, if men had called themselves
relatives of their mother's relatives . The in-
ference would have been that a person might be
subject to two distinct Patriæ Potestates ; but
distinct Patriæ Potestates implied distinct juris-
dictions, so that anybody amenable to two of
them at the same time would have lived under
two different dispensations. As long as the

Family was an imperium in imperio, a community

within the commonwealth governed by its own
.
institutions of which the parent was the source,
the limitation of relationship to the Agnates was
a necessary security against a conflict of laws in
the domestic forum .
The Paternal Powers proper are extinguished
by the death of the Parent, but Agnation is as it
were a mould which retains their imprint after they
have ceased to exist . Hence comes the interest

of Agnation for the inquirer into the history of

CHAP. V] AGNATION 133

jurisprudence. The powers themselves are dis-

cernible in comparatively few monuments of
ancient law, but Agnatic Relationship , which
implies their former existence , is discoverable
almost everywhere . There are few indigenous
bodies of law belonging to communities of the
Indo-European stock, which do not exhibit pecu-
liarities in the most ancient part of their structure
which are clearly referable to Agnation . In
Hindoo law, for example, which is saturated with
the primitive notions of family dependency, kin-
ship is entirely Agnatic, and I am informed that
in Hindoo genealogies the names of women are
generally omitted altogether. The same view of
relationship pervades so much of the laws of the
races who overran the Roman Empire as appears
to have really formed part of their primitive usage,
and we may suspect that it would have per-
petuated itself even more than it has in modern
European jurisprudence, if it had not been for
the vast influence of the later Roman law on

modern thought. The Prætors early laid hold

on Cognation as the natural form of kinship, and
spared no pains in purifying their system from
the older conception . Their ideas have descended
to us, but still traces of Agnation are to be seen
in many of the modern rules of succession after
death . The exclusion of females and their children
from governmental functions , commonly attri-
buted to the usage of the Salian Franks, has
certainly an agnatic origin, being descended from
the ancient German rule of succession to allodial
property. In Agnation too is to be sought the
explanation of that extraordinary rule of English
 134 PRIMITIVE SOCIETY AND ANCIENT LAW [CHAP. V

Law, only recently repealed , which prohibited

brothers of the half-blood from succeeding to one
another's lands. In the Customs of Normandy,
the rule applies to uterine brothers only, that is,
to brothers by the same mother but not by the
same father ; and , limited in this way, it is a strict
deduction from the system of Agnation , under
which uterine brothers are no relations at all to
one another. When it was transplanted to Eng-
land, the English judges, who had no clue to its
principle, interpreted it as a general prohibition
•
against the succession of the half-blood, and
extended it to consanguineous brothers, that is
to sons of the same father by different wives . In
all the literature whch enshrines the pretended
philosophy of law, there is nothing more curious
than the pages of elaborate sophistry in which
Blackstone attempts to explain and justify the
exclusion of the half-blood .

It may be shown, I think, that the Family, as

held together by the Patria Potestas, is the nidus
out of which the entire Law of Persons has ger-
minated . Of all the chapters of that Law the
most important is that which is concerned with
the status of Females . It has just been stated that
Primitive Jurisprudence , though it does not allow
a Woman to communicate any rights of Agnation
to her descendants, includes herself nevertheless
in the Agnatic bond. Indeed, the relation of a
female to the family in which she was born is much
stricter, closer, and more durable than that which
unites her male kinsmen . We have several times

laid down that early law takes notice of Families

only ; this is the same thing as saying that it only
CHAP. V] GUARDIANSHIP OF WOMEN 135

takes notice of persons exercising Patria Potestas ,

and accordingly the only principle on which it
enfranchises a son or grandson at the death of his
Parent , is a consideration of the capacity inherent
in such son or grandson to become himself the head
of a new family and the root of a new set of
Parental Powers . But a woman, of course , has

no capacity of the kind, and no title accordingly

to the liberation which it confers . There is

therefore a peculiar contrivance of archaic juris-

prudence for retaining her in the bondage of the
Family for life. This is the institution known to
the oldest Roman law as the Perpetual Tutelage
of Women , under which a Female, though relieved
from her Parent's authority by his decease , con-
tinues subject through life to her nearest male
relations , or to her father's nominees, as her
Guardians . Perpetual Guardianship is obviously
neither more nor less than an artificial prolongation
of the Patria Potestas, when for other purposes
it has been dissolved . In India , the system
survives in absolute completeness , and its opera-
tion is so strict that a Hindoo Mother frequently
becomes the ward of her own sons. Even in

Europe, the laws of the Scandinavian nations.

respecting women preserved it until quite recently.
The invaders of the Western Empire had it
universally among their indigenous usages, and
indeed their ideas on the subject of Guardianship,
in all its forms, were among the most retrogressive
of those which they introduced into the Western
'world . But from the mature Roman jurisprudence
it had entirely disappeared . We should know
almost nothing about it, if we had only the com-
136 PRIMITIVE SOCIETY AND ANCIENT LAW [CHAP. V

pilations of Justinian to consult ; but the discovery

of the manuscript of Gaius discloses it to us at a
most interesting epoch, just when it had fallen
into complete discredit and was verging on
extinction . The great jurisconsult himself scouts
the popular apology offered for it in the mental
inferiority of the female sex, and a considerable
part of his volume is taken up with descriptions
of the numerous expedients, some of the dis-
playing extraordinary ingenuity, which the Roman
lawyers had devised for enabling Women to defeat
the ancient rules . Led by their theory of Natural
Law, the jurisconsults had evidently at this time
assumed the equality of the sexes as a principle
of their code of equity. The restrictions which
they attacked were , it is to be observed , restrictions
on the disposition of property, for which the
assent of the woman's guardians was still formally
required . Control of her person was apparently
quite obsolete.
Ancient law subordinates the woman to her

blood-relations , while a prime phenomenon of

modern jurisprudence has been her subordination
to her husband. The history of the change

is remarkable. It begins far back in the annals

of Rome. Anciently, there were three modes in
which marriage might be contracted according
to Roman usage, one involving a religious solem-
nity, the other two the observance of certain
secular formalities . By the religious marriage
or Confarreation ; by the higher form of civil
marriage, which was called Coemption ; and by
the lower form , which was termed Usus, the
Husband acquired a number of rights, over the
CHAP, V] ANCIENT ROMAN MARRIAGE 137

person and property of his wife, which were on

the whole in excess of such as are conferred on

him in any system of modern jurisprudence . But

in what capacity did he acquire them ? Not as
Husband, but as Father. By the Confarreation ,
Coemption, and Usus, the woman passed in
manum viri, that is, in law she became the Daughter
of her husband . She was included in his Patria

Potestas. She incurred all the liabilities springing

out of it while it subsisted , and surviving it when
it had expired. All her property became abso-
lutely his, and she was retained in tutelage after
his death to the guardian whom he had appointed
by will. These three ancient forms of marriage
fell , however, gradually into disuse, so that at the
most splendid period of Roman greatness , they
had almost entirely given place to a fashion of
wedlock-old apparently, but not hitherto con-
sidered reputable-which was founded on a modi-
fication of the lower form of civil marriage . With-
out explaining the technical mechanism of the
institution now generally popular , I may describe
it as amounting in law to a little more than a
temporary deposit of the woman by her family.
The rights of the family remained unimpaired, and
the lady continued in the tutelage of guardians
whom her parents had appointed and whose
privileges of control overrode , in many material
respects, the inferior authority of her husband.
The consequence was that the situation of the
Roman female, whether married or unmarried ,
became one of great personal and proprietary
independence, for the tendency of the later law,
as I have already hinted, was to reduce the power
138 PRIMITIVE SOCIETY AND ANCIENT LAW [CHAP. V

of the guardian to a nullity, while the form of

marriage in fashion conferred on the husband
no compensating superiority. But Christianity
tended somewhat from the very first to narrow
this remarkable liberty . Led at first by justifiable
disrelish for the loose practices of the decaying
heathen world, but afterwards hurried on by a
passion of asceticism , the professors of the new
faith looked with disfavour on a marital tie which
was in fact the laxest the Western world has seen .

The latest Roman law, so far as it is touched by

the Constitutions of the Christian Emperors , bears
some marks of a reaction against the liberal
doctrines of the great Antonine jurisconsults .
And the prevalent state of religious sentiment may
explain why it is that modern jurisprudence, forged
in the furnace of barbarian conquest, and formed
by the fusion of Roman jurisprudence with
patriarchal usage, has absorbed, among its rudi-
ments, much more than usual of those rules
concerning the position of women which belong
peculiarly to an imperfect civilisation. During
the troubled era which begins modern history, and
while the laws of the German and Sclavonic
immigrants remained superposed like a separate
layer above the Roman jurisprudence of their
provincial subjects , the women of the dominant
races are seen everywhere under various forms of

archaic guardianship, and the husband who takes

a wife from any family except his own pays a
money -price to her relations for the tutelage which
they surrender to him. When we move onwards ,
and the code of the middle ages has been formed
by the amalgamation of the two systems , the law
CHAP. V] CONDITION OF WOMEN 139

relating to women carries the stamp of its double

origin. The principle of the Roman jurisprudence
is so far triumphant that unmarried females are
generally (though there are local exceptions to the
rule) relieved from the bondage of the family ; but
the archaic principle of the barbarians has fixed
the position of married women , and the husband
has drawn to himself in his marital character the
powers which had once belonged to his wife's male
kindred, the only difference being that he no longer
purchases his privileges . At this point therefore
the modern law of Southern and Western Europe
begins to be distinguished by one of its chief
characteristics, the comparative freedom it allows
to unmarried women and widows, the heavy
disabilities it imposes on wives . It was very long
before the subordination entailed on the other sex

by marriage was sensibly diminished . The prin-

cipal and most powerful solvent of the revived
barbarism of Europe was always the codified
jurisprudence of Justinian , wherever it was studied
with that passionate enthusiasm which it seldom
failed to awaken . It covertly but most effica-
ciously undermined the customs which it pre-
tended merely to interpret. But the Chapter of
law relating to married women was for the most
part read by the light , not of Roman , but of Canon
Law, which in no one particular departs so widely
from the spirit of the secular jurisprudence as in
the view it takes of the relations created by
marriage . This was in part inevitable, since no
society which preserves any tincture of Christian
institution is likely to restore to married women
the personal liberty conferred on them by the
140 PRIMITIVE SOCIETY AND ANCIENT LAW [CHAP. V

middle Roman law, but the proprietary disabilities

of married females stand on quite a different basis
from their personal incapacities, and it is by the
tendency of their doctrines to keep alive and
consolidate the former, that the expositors of
the Canon Law have deeply injured civilisation .
There are many vestiges of a struggle between the
secular and ecclesiastical principles , but the Canon
Law nearly everywhere prevailed . In some of
the French provinces, married women, of a rank
below nobility, obtained all the powers of dealing
with property which Roman jurisprudence had
allowed, and this local law has been largely
followed by the Code Napoléon ; but the state of
the Scottish law shows that scrupulous deference
to the doctrines of the Roman jurisconsults did
not always extend to mitigating the disabilities
of wives. The systems however which are least
indulgent to married women are invariably those
which have followed the Canon Law exclusively,
or those which, from the lateness of their contact
with European civilisation , have never had their
archaisms weeded out. The Danish and Swedish

laws, harsh for many centuries to all females, are

still much less favourable to wives than the

generality of Continental codes . And yet more

stringent in the proprietary incapacities it imposes
is the English Common Law, which borrows far
the greatest number of its fundamental principles
from the jurisprudence of the Canonists. Indeed ,
the part of the Common Law which prescribes the
legal situation of married women may serve to
give an Englishman clear notions of the great
institution which has been the principal subject
CHAP. V] GUARDIANSHIP OF ORPHANS 141

of this chapter. I do not know how the operation

and nature of the ancient Patria Potestas can be

brought so vividly before the mind as by reflecting

on the prerogatives attached to the husband by
the pure English Common Law, and by recalling
the rigorous consistency with which the view of
a complete legal subjection on the part of the wife
is carried by it, where it is untouched by equity
or statutes, through every department of rights ,
duties, and remedies. The distance between the
eldest and latest Roman law on the subject of
Children under Power may be considered as
equivalent to the difference between the Common

Law and the jurisprudence of the Court of Chan-

cery in the rules which they respectively apply
to wives .

If we were to lose sight of the true origin of

Guardianship in both its forms , and were to employ
the common language on these topics, we should
find ourselves remarking that , while the Tutelage
of Women is an instance in which systems of
archaic law push to an extravagant length the
fiction of suspended rights , the rules which they
lay down for the Guardianship of Male Orphans
are an example of a fault in precisely the opposite
direction. Such systems terminate the Tutelage
of Males at an extraordinary early period . Under
the ancient Roman law, which may be taken as
their type, the son who was delivered from Patria
Potestas by the death of his Father or Grandfather
remained under guardianship till an epoch which
for general purposes may be described as arriving
with his fifteenth year ; but the arrival of that
epoch placed him at once in the full enjoyment
142 PRIMITIVE SOCIETY AND ANCIENT LAW [CHAP. V

of personal and proprietary independence . The

period of minority appears therefore to have been
as unreasonably short as the duration of the
disabilities of women was preposterously long.

But, in point of fact, there was no element either

of excess or of shortcoming in the circumstances
which gave their original form to the two kinds
of guardianship. Neither the one nor the other of
them was based on the slightest consideration of
public or private convenience . The guardianship
of male orphans was no more designed originally
to shield them till the arrival of years of discretion
than the tutelage of women was intended to protect
the other sex against its own feebleness . The
reason why the death of the father delivered the
son from the bondage of the family was the son's
capacity for becoming himself the head of a new
family and the founder of a new Patria Potestas :
no such capacity was possessed by the woman,
and therefore she was never enfranchised . Accord-

ingly the Guardianship of Male Orphans was a

contrivance for keeping alive the semblance of
subordination to the family of the Parent, up to
the time when the child was supposed capable of
becoming a parent himself. It was a prolonga-
tion of the Patria Potestas up to the period of
bare physical manhood. It ended with puberty,
for the rigour of the theory demanded that it
should do so. Inasmuch, however, as it did not
profess to conduct the orphan ward to the age of
intellectual maturity or fitness for affairs , it was
quite unequal to the purposes of general con-
venience ; and this the Romans seem to have
discovered at a very early stage of their social
CHAP. V] MASTER AND SLAVE 143

progress . One of the very oldest monuments of

Roman legislation is the Lex Lætoria or Plætoria,
which placed all free males who were of full years
and rights under the temporary control of a new
class of guardians, called Curatores, whose sanction
was required to validate their acts or contracts .
The twenty-sixth year of the young men's age
was the limit of this statutory supervision ; and
it is exclusively with reference to the age of
twenty-five that the terms " majority " and
minority " are employed in Roman law. Pupil-
age, or wardship, in modern jurisprudence has
adjusted itself with tolerable regularity to the
simple principle of protection to the immaturity
of youth both bodily and mental. It has its
natural termination with years of discretion . But
for protection against physical weakness, and
for protection against intellectual incapacity , the
Romans looked to two different institutions ,
distinct both in theory and design . The ideas
attendant on both are combined in the modern
idea of guardianship .
The Law of Persons contains but one other
chapter which can be usefully cited for our present
purpose . The legal rules by which systems of
mature jurisprudence regulate the connection of
Master and Slave, present no very distinct traces
of the original condition common to ancient
societies. But there are reasons for this exception.

There seems to be something in the institution of

Slavery which has at all times either shocked or
perplexed mankind, however little habituated to
reflection, and however slightly advanced in the
cultivation of its moral instincts . The compunc-
144 PRIMITIVE SOCIETY AND ANCIENT LAW [CHAP. V

tion which ancient communities almost uncon-

sciously experienced appears to have always

resulted in the adoption of some imaginary
principle upon which a defence, or at least a
rationale , of slavery could be plausibly founded .
Very early in their history the Greeks explained
the institution as grounded on the intellectual
inferiority of certain races, and their consequent
natural aptitude for the servile condition . The
Romans, in a spirit equally characteristic , derived
it from a supposed agreement between the victor
and the vanquished , in which the first stipulated
for the perpetual services of his foe, and the other
gained in consideration the life which he had
legitimately forfeited . Such theories were not
only unsound but plainly unequal to the case for
which they affected to account . Still they exer-
cised powerful influence in many ways. They
satisfied the conscience of the Master . They
perpetuated and probably increased the debase-
ment of the Slave . And they naturally tended to
put out of sight the relation in which servitude
had originally stood to the rest of the domestic
system. This relation, though not clearly ex-
hibited , is casually indicated in many parts of
primitive law, and more particularly in the
typical system —that of ancient Rome .
Much industry and some learning have been
bestowed in the United States of America on the

question whether the Slave was in the early stages

of society a recognised member of the Family.
There is a sense in which an affirmative answer

must certainly be given . It is clear, from the

testimony both of ancient law and of many
CHAP. V] SLAVERY 145

primeval histories, that the Slave might under

certain conditions be made the Heir, or Universal
Successor, of the Master, and this significant
faculty, as I shall explain in the Chapter on Suc-
cession, implies that the Government and repre-
sentation of the Family might , in a particular
state of circumstances, devolve on the bondman .
It seems, however, to be assumed in the American

arguments on the subject that, if we allow Slavery

to have been a primitive Family institution , the
acknowledgment is pregnant with an admission
of the moral defensibility of Negro-servitude at
the present moment . What then is meant by
saying that the Slave was originally included in
the Family ? Not that his situation may not
have been the fruit of the coarsest motives which
can actuate man . The simple wish to use the

bodily powers of another person as a means of

ministering to one's own ease or pleasure is doubt-
less the foundation of Slavery , and as old as human
nature. When we speak of the Slave as anciently
included in the Family, we intend to assert nothing
as to the motives of those who brought him into
it or kept him there ; we merely imply that the
tie which bound him to his master was regarded
as one of the same general character with that
which united every other member of the group to
its chieftain . This consequence is , in fact , carried
in the general assertion already made, that the
primitive ideas of mankind were unequal to com-
prehending any basis of the connection inter se of

individuals, apart from the relations of family.

The Family consisted primarily of those who be-
longed to it by consanguinity, and next of those
ΙΟ
146 PRIMITIVE SOCIETY AND ANCIENT LAW [CHAP. V

who had been engrafted on it by adoption ; but

there was still a third class of persons who were
only joined to it by common subjection to its head ,
and these were the Slaves . The born and the
adopted subjects of the chief were raised above

the Slave by the certainty that in the ordinary

course of events they would be relieved from
bondage and entitled to exercise powers of their
own ; but that the inferiority of the Slave was
not such as to place him outside the pale of the
Family, or such as to degrade him to the footing
of inanimate property, is clearly proved , I think,
by the many traces which remain of his ancient
capacity for inheritance in the last resort . It
would , of course , be unsafe in the highest degree to
hazard conjectures how far the lot of the Slave was
mitigated, in the beginnings of society, by having
a definite place reserved to him in the empire of
the Father. It is, perhaps , more probable that
the son was practically assimilated to the Slave,
than that the Slave shared any of the tenderness
which in later times was shown to the son. But
it may be asserted with some confidence of ad-
vanced and matured codes that , wherever servitude
is sanctioned, the Slave has uniformly greater
advantages under systems which preserve some
memento of his earlier condition than under those

which have adopted some other theory of his civil

degradation . The point of view from which juris-
prudence regards the Slave is always of great
importance to him . The Roman law was arrested
in its growing tendency to look upon him more
and more as an article of property by the theory
of the Law of Nature ; and hence it is that,
CHAP. V] ANCIENT LAW 147

wherever servitude is sanctioned by institutions

which have been deeply affected by Roman juris-
prudence, the servile condition is never intolerably
wretched . There is a great deal of evidence that
in those American States which have taken the
highly Romanised code of Louisiana as the basis
of their jurisprudence , the lot and prospects of
the Negro-population were better in many material
respects, until the letter of the fundamental law

was overlaid by recent statutory enactments

passed under the influence of panic , than under
institutions founded on the English Common
Law, which, as recently interpreted , has no true
place for the Slave , and can only therefore regard
him as a chattel.

We have now examined all parts of the ancient

Law of Persons which fall within the scope of this
treatise, and the result of the inquiry is, I trust, to
give additional definiteness and precision to our
view of the infancy of jurisprudence . The Civil
laws of States first make their appearance as the
Themistes of a patriarchal sovereign, and we can
now see that these Themistes are probably only
a developed form of the irresponsible commands
which, in a still earlier condition of the race , the
head of each isolated household may have ad-
dressed to his wives, his children , and his slaves.
But, even after the State has been organised , the
laws have still an extremely limited application .
Whether they retain their primitive character
as Themistes, or whether they advance to the
condition of Customs or Codified Texts, they are
binding not on individuals, but on Families .

Ancient jurisprudence , if a perhaps deceptive

148 PRIMITIVE SOCIETY AND ANCIENT LAW [CHAP. V

comparison may be employed , may be likened to

International Law, filling nothing , as it were ,

excepting the interstices between the great groups

which are the atoms of society. In a community
so situated, the legislation of assemblies and the
jurisdiction of Courts reach only to the heads of
families, and to every other individual the rule
of conduct is the law of his home, of which his
Parent is the legislator . But the sphere of civil
law, small at first, tends steadily to enlarge itself.
The agents of legal change , Fictions, Equity, and
Legislation, are brought in turn to bear on the
primeval institutions, and at every point of the
progress, a greater number of personal rights and
a larger amount of property are removed from
the domestic forum to the cognisance of the public
tribunals. The ordinances of the government

obtain gradually the same efficacy in private

concerns as in matters of state, and are no longer
liable to be overridden by the behests of a despot
enthroned by each hearthstone . We have in the
annals of Roman law a nearly complete history
of the crumbling away of an archaic system, and
of the formation of new institutions from the re-
combined materials, institutions some of which
descended unimpaired to the modern world, while
others , destroyed or corrupted by contact with
barbarism in the dark ages, had again to be re-
covered by mankind . When we leave this juris-
prudence at the epoch of its final reconstruction
by Justinian, few traces of archaism can be dis-
covered in any part of it except in the single
article of the extensive powers still reserved to
the living Parent . Everywhere else principles
CHAP. V] DISINTEGRATION OF THE FAMILY 149

of convenience , or of symmetry, or of simplifica-

tion-new principles at any rate-have usurped
the authority of the jejune considerations which
satisfied the conscience of ancient times. Every-
where a new morality has displaced the canons of
conduct and the reasons of acquiescence which
were in unison with the ancient usages , because
in fact they were born of them.
The movement of the progressive societies has
been uniform in one respect. Through all its
course it has been distinguished by the gradual
dissolution of family dependency, and the growth
of individual obligation in its place . The Indi-
vidual is steadily substituted for the Family, as
the unit of which civil laws take account. The
advance has been accomplished at varying rates
of celerity, and there are societies not absolutely
stationary in which the collapse of the ancient
organisation can only be perceived by careful
study of the phenomena they present . But,
whatever its pace, the change has not been subject
to reaction or recoil, and apparent retardations
will be found to have been occasioned through
the absorption of archaic ideas and customs from
some entirely foreign source. Nor is it difficult
to see what is the tie between man and man which

replaces by degrees those forms of reciprocity in

rights and duties which have their origin in the
Family. It is Contract . Starting, as from one
terminus of history, from a condition of society
in which all the relations of Persons are summed

up in the relations of Family, we seem to have

steadily moved towards a phase of social order
in which all these relations arise from the free
150 PRIMITIVE SOCIETY AND ANCIENT LAW [CHAP. V

agreement of Individuals . In Western Europe

the progress achieved in this direction has been
considerable . Thus the status of the Slave has

disappeared-it has been superseded by the con-

tractual relation of the servant to his master.
The status of the Female under Tutelage, if the
tutelage be understood of persons other than
her husband, has also ceased to exist ; from her
coming of age to her marriage all the relations she
may form are relations of contract. So too the
status of the Son under Power has no true place
in the law of modern European societies . If any
civil obligation binds together the Parent and the
child of full age, it is one to which only contract
gives its legal validity . The apparent exceptions
are exceptions of that stamp which illustrate the
rule . The child before years of discretion , the
orphan under guardianship, the adjudged lunatic,
have all their capacities and incapacities regulated
by the Law of Persons . But why ? The reason
is differently expressed in the conventional lan-
guage of different systems, but in substance it
is stated to the same effect by all . The great
majority of Jurists are constant to the principle
that the classes of persons just mentioned are
subject to extrinsic control on the single ground
that they do not possess the faculty of forming
a judgment on their own interests ; in other
words, that they are wanting in the first essential
of an engagement by Contract .
The word Status may be usefully employed to
construct a formula expressing the law of progress
thus indicated, which, whatever be its value , seems
to me to be sufficiently ascertained . All the forms
CHAP. V] FROM STATUS TO CONTRACT 151

of Status taken notice of in the Law of Persons

were derived from , and to some extent are still
coloured by, the powers and privileges anciently
residing in the Family. If then we employ Status ,
agreeably with the usage of the best writers, to
signify these personal conditions only, and avoid
applying the term to such conditions as are the
immediate or remote result of agreement, we may

say that the movement of the progressive societies

has hitherto been a movement from Status to
Contract.
 CHAPTER VI

THE EARLY HISTORY OF TESTAMENTARY

SUCCESSION

IF an attempt were made to demonstrate in

England the superiority of the historical method
of investigation to the modes of inquiry concerning
Jurisprudence which are in fashion among us,
no department of Law would better serve as an
example than Testaments or Wills . Its capabili-
ties it owes to its great length and great continuity.
At the beginning of its history we find ourselves
in the very infancy of the social state, surrounded
by conceptions which it requires some effort of
mind to realise in their ancient form ; while here ,
at the other extremity of its line of progress, we
are in the midst of legal notions which are nothing
more than those same conceptions disguised by
the phraseology and by the habits of thought
which belong to modern times , and exhibiting
therefore a difficulty of another kind, the difficulty
of believing that ideas which form part of our
everyday mental stock can really stand in need
of analysis and examination . The growth of the
Law of Wills between these extreme points can
be traced with remarkable distinctness .
It was

much less interrupted at the epoch of the birth of

feudalism , than the history of most other branches
of law . It is, indeed, true that as regards all
152
CHAP. VI] INFLUENCE OF THE CHURCH 153

provinces of jurisprudence, the break caused by

the division between ancient and modern history,
or in other words by the dissolution of the Roman
Empire, has been very greatly exaggerated . In-
dolence has disinclined many writers to be at the
pains of looking for threads of connection entangled
and obscured by the confusions of six troubled
centuries , while other inquirers , not naturally
deficient in patience and industry, have been misled
by idle pride in the legal system of their country,
and by consequent unwillingness to confess its
obligations to the jurisprudence of Rome. But
these unfavourable influences have had compara-

tively little effect on the province of Testamentary

Law. The barbarians were confessedly strangers
to any such conception as that of a Will. The

best authorities agree that there is no trace of it in

those parts of their written codes which comprise
the customs practised by them in their original
seats, and in their subsequent settlements on the
edge of the Roman Empire . But soon after they
became mixed with the population of the Roman
provinces they appropriated from the Imperial
jurisprudence the conception of a Will , at first in
part, and afterwards in all its integrity. The
influence of the Church had much to do with this

rapid assimilation . The ecclesiastical power had

very early succeeded to those privileges of custody
and registration of Testaments which several of
the heathen temples had enjoyed ; and even thus
early it was almost exclusively to private bequests
that the religious foundations owed their temporal
possessions . Hence it is that the decrees of the
earliest Provincial Councils perpetually contain
154 HISTORY OF TESTAMENTARY SUCCESSION [CHAP. VI

anathemas against those who deny the sanctity

of Wills . Here , in England, Church influence
was certainly chief among the causes which by
universal acknowledgment have prevented that
discontinuity in the history of Testamentary Law
which is sometimes believed to exist in the history

of other provinces of Jurisprudence . The juris-

diction over one class of Will was delegated to
the Ecclesiastical Courts , which applied to them ,
though not always intelligently, the principles of
Roman jurisprudence ; and, though neither the
Courts of Common Law nor the Court of Chan-
cery owned any positive obligation to follow the
Ecclesiastical tribunals , they could not escape the
potent influence of a system of settled rules in
course of application by their side . The English
law of testamentary succession to personality has
become a modified form of the dispensation under
which the inheritances of Roman citizens were
administered .
It is not difficult to point out the extreme
difference of the conclusions forced on us by the
historical treatment of the subject , from those to
which we are conducted when, without the help
of history, we merely strive to analyse our primâ-
facie impressions . I suppose there is nobody
who, starting from the popular or even the legal
conception of a Will, would not imagine that
certain qualities are necessarily attached to it.
He would say, for example, that a Will necessarily
takes effect at death only- that it is secret, not
known as a matter of course to persons taking
interests under its provisions- that it is revocable,
i.e. always capable of being superseded by a new
CHAP. VI NATURAL RIGHT OF TESTATION 155

act of testation . Yet I shall be able to show that

there was a time when none of these characteristics
belonged to a Will . The Testaments from which
our Wills are directly descended at first took effect
immediately on their execution ; they were not
secret ; they were not revocable . Few legal
agencies are, in fact , the fruit of more complex
historical agencies than that by which a man's
written intentions control the posthumous dis-
position of his goods . Testaments very slowly
and gradually gathered round them the qualities
I have mentioned ; and they did this from causes
and under pressure of events which may be called
casual , or which at any rate have no interest for
us at present, except so far as they have effected
.
the history of law.
At a time when legal theories were more
abundant than at present-theories which, it is
true, were for the most part gratuitous and
premature enough, but which nevertheless rescued

jurisprudence from that worse and more ignoble

condition, not unknown to ourselves, in which
nothing like a generalisation is aspired to , and law
is regarded as a mere empirical pursuit-it was
the fashion to explain the ready and apparently
intuitive perception which we have of certain
qualities in a Will, by saying that they were natural
to it, or, as the phrase would run in full, attached
to it by the Law of Nature . Nobody , I imagine ,
would affect to maintain such a doctrine when
once it was ascertained that all these characteristics
had their origin within historical memory ; at the
same time vestiges of the theory of which the
doctrine is an offshoot , linger in forms of expression
156 HISTORY OF TESTAMENTARY SUCCESSION [CHAP. VI

which we all of us use, and perhaps scarcely know

how to dispense with . I may illustrate this by
mentioning a position common in the legal litera-
ture of the seventeenth century. The jurists of
that period very commonly assert that the power
of Testation itself is of Natural Law, that it is a
right conferred by the Law of Nature. Their

teaching, though all persons may not at once see

the connection, is in substance followed by those
who affirm that the right of dictating or controlling
the posthumous disposal of property is a necessary
or natural consequence of the proprietary rights
themselves . And every student of technical juris-
prudence must have come across the same view,
clothed in the language of a rather different
school , which, in its rationale of this department
of law, treats succession ex testamento as the mode
of devolution which the property of deceased
persons ought primarily to follow, and then pro-
ceeds to account for succession ab intestato as

the incidental provision of the lawgiver for the

discharge of a function which was only left un-
performed through the neglect or misfortune of
the deceased proprietor. These opinions are only
expanded forms of the more compendious doctrine
that Testamentary disposition is an institution
of the Law of Nature . It is certainly never quite
safe to pronounce dogmatically as to the range of
association embraced by modern minds when they
reflect on Nature and her Law ; but I believe that
most persons, who affirm that the Testamentary
Power is of Natural Law, may be taken to imply
either that, as a matter of fact, it is universal, or
that nations are prompted to sanction it by an
CHAP. VI] NATURE OF A WILL 157

original instinct and impulse . With respect to

the first of these positions , I think that, when
explicitly set 'forth, it can never be seriously con-
tended for in an age which has seen the severe
restraints imposed on the Testamentary Power by
the Code Napoléon , and has witnessed the steady
multiplication of systems for which the French
codes have served as a model. To the second
assertion we must object that it is contrary to
the best-ascertained facts in the early history of
law, and I venture to affirm generally that, in all
indigenous societies, a condition of jurisprudence
in which Testamentary privileges are not allowed ,
or rather not contemplated , has preceded that
later stage of legal development in which the mere
will of the proprietor is permitted under more or
less of restriction to override the claims of his
kindred in blood .

The conception of a Will or Testament cannot

be considered by itself. It is a member, and not
the first, of a series of conceptions . In itself a Will
is simply the instrument by which the intention of
the testator is declared . It must be clear, I think,
that before such an instrument takes its turn for

discussion, there are several preliminary points to

be examined- as for example, what is it , what
sort of right or interest , which passes from a dead
man on his decease ? to whom and in what form
does it pass ? and how came it that the dead were

allowed to control the posthumous disposition of

their property ? Thrown into technical language ,
the dependence of the various conceptions which
contribute to the notion of a Will is thus expressed.
A Will or Testament is an instrument by which
158 HISTORY OF TESTAMENTARY SUCCESSION [CHAP. VI

the devolution of an inheritance is prescribed .

Inheritance is a form of universal succession. A
universal succession is a succession to a universitas

juris , or university of rights and duties . Inverting

this order we have therefore to inquire what is a
universitas juris ; what is a universal succession ;
what is the form of universal succession which is
called an inheritance ? And there are also two
further questions, independent to some extent of
the points I have mooted , but demanding solution
before the subject of Wills can be exhausted .
These are, how came an inheritance to be con-
trolled in any case by the testator's volition , and
what is the nature of the instrument by which it
came to be controlled ?

The first question relates to the universitas

juris ; that is a university (or bundle) of rights
and duties . A universitas juris is a collection of
rights and duties united by the single circumstance
of their having belonged at one time to some
one person. It is, as it were , the legal clothing
of some given individual . It is not formed by
grouping together any rights and any duties. It
can only be constituted by taking all the rights
and all the duties of a particular person . The tie
which so connects a number of rights of property,
rights of way, rights to legacies, duties of specific
performance , debts , obligations, to compensate
wrongs - which so connects all these legal privileges
and duties together as to constitute them a univer-
sitas juris, is the fact of their having attached
to some individual capable of exercising them .
Without this fact there is no university of rights
and duties . The expression universitas juris is
CHAP. VI] UNIVERSAL SUCCESSION 159

not classical , but for the notion jurisprudence

is exclusively indebted to Roman law ; nor is it
at all difficult to seize . We must endeavour to
collect under one conception the whole set of
legal relations in which each one of us stands to
the rest of the world . These , whatever be their
character and composition, make up together a
universitas juris ; and there is but little danger
of mistake in forming the notion , if we are only
careful to remember that duties enter into it quite
as much as rights . Our duties may overbalance
our rights . A man may owe more than he is
worth , and therefore if a money value is set on
his collective legal relations he may be what is
called insolvent . But for all that the entire group
of rights and duties which centres in him is not
the less a " juris universitas ."
We come next to a " universal succession ." A
universal succession is a succession to a universitas
juris. It occurs when one man is invested with
the legal clothing of another, becoming at the same
moment subject to all his liabilities and entitled to
all his rights . In order that the universal suc-
cession may be true and perfect , the devolution
must take place uno ictu , as the jurists phrase it .
It is of course possible to conceive one man
acquiring the whole of the rights and duties of
another at different periods, as for example by
successive purchases ; or he might acquire them
in different capacities, part as heir, part as pur-
chaser, part as legatee. But though the group
of rights and duties thus made up should in fact
amount to the whole legal personality of a par-

ticular individual , the acquisition would not be a

160 HISTORY OF TESTAMENTARY SUCCESSIÓN (CHAP. VI

universal succession . In order that there may

be a true universal succession , the transmission
must be such as to pass the whole aggregate of
rights and duties at the same moment and in virtue
of the same legal capacity in the recipient . The
notion of a universal succession , like that of a
" juris universitas ," is permanent in jurisprudence ,
though in the English legal system it is obscured
by the great variety of capacities in which rights
are acquired , and, above all, by the distinction
between the two great provinces of English
property, " realty " and " personalty." The suc-
cession of an assignee in bankruptcy to the entire
property of the bankrupt is, however, a universal
succession, though, as the assignee only pays debts
to the extent of the assets , this is only a modified
form of the primary notion . Were it common
among us for persons to take assignments of all
a man's property on condition of paying all his
debts, such transfers would exactly resemble the
universal successions known to the oldest Roman
Law. When a Roman citizen adrogated a son,
i.e., took a man, not already under Patria Potestas ,
as his adoptive child , he succeeded universally
to the adoptive child's estate, i.e. , he took all the
property and became liable for all the obligations .
Several other forms of universal succession appear
in the primitive Roman Law, but infinitely the
most important and the most durable of all was
that one with which we are more immediately
concerned , Hæreditas or Inheritance . Inherit-
ance was a universal succession, occurring at a
death . The universal successor was Hæres or
Heir . He stepped at once into all the rights and
CHAP. VIJ UNIVERSAL SUCCESSOR 161

all the duties of the dead man. He was instantly

clothed with his entire legal person, and I need
scarcely add that the special character of the
Hæres remained the same , whether he was named
by a Will or whether he took on an intestacy.
The term Hæres is no more emphatically used of
the Intestate than of the Testamentary Heir, for
the manner in which a man became Hæres had

nothing to do with the legal character he sus-

tained . The dead man's universal successor, how-

ever he became so , whether by Will or by In-

testacy, was his Heir. But the Heir was not
necessarily a single person . A group of persons ,
considered in law as a single unit, might succeed
as co-heirs to the Inheritance .
Let me now quote the usual Roman definition
of an Inheritance . The reader will be in a position
to appreciate the full force of the separate terms .
Hæreditas est successio in universum jus quod
defunctus habuit (" an inheritance is a succession
to the entire legal position of a deceased man ” ) .
The notion was that, though the physical person
of the deceased had perished , his legal personality
survived and descended unimpaired on his Heir
or Co-heirs , in whom his identity ( so far as the law
was concerned) was continued . Our own law, in
constituting the Executor or Administrator the
representative of the deceased to the extent of his
personal assets, may serve as an illustration of the
theory from which it emanated , but, although
it illustrates, it does not explain it . The view of
even the later Roman Law required a closeness
of correspondence between the position of the
deceased and of his Heir which is no feature of
II
162 HISTORY OF TESTAMENTARY SUCCESSION [CHAP, VI

an English representation ; and, in the primitive

jurisprudence everything turned on the continuity
of succession . Unless provision was made in the
will for the instant devolution of the testator's

rights and duties on the Heir or Co-heirs , the

testament lost all its effect .
In modern Testamentary jurisprudence, as in
the later Roman Law, the object of first importance
is the execution of the testator's intentions . In
the ancient law of Rome the subject of correspond-

ing carefulness was the bestowal of the Universal

Succession . One of these rules seems to our eyes

a principle dictated by common sense , while the

other looks very much like an idle crotchet .
Yet
that without the second of them the first would

never have come into being , is as certain as any

proposition of the kind can be.
In order to solve this apparent paradox , and
to bring into greater clearness the train of ideas
which I have been endeavouring to indicate, I
must borrow the results of the inquiry which was
attempted in the earlier portion of the preceding
chapter. We saw one peculiarity invariably

distinguishing the infancy of society . Men are

regarded and treated, not as individuals , but

always as members of a particular group . Every-

body is first a citizen, and then , as a citizen, he is
a member of his order- of an aristocracy or a
democracy , of an order of patricians or plebeians ;
or, in those societies which an unhappy fate has
afflicted with a special perversion in their course
of development , of a caste . Next , he is a member
of a gens, house , or clan ; and lastly, he is a mem-
ber of his family. This last was the narrowest
CHAP. VI] PRIMITIVE SOCIETY 163

and most personal relation in which he stood ;

nor, paradoxical as it may seem, was he ever
regarded as himself, as a distinct individual . His
individuality was swallowed up in his family. I
repeat the definition of a primitive society given
before . It has for its units, not individuals, but
groups of men united by the reality or the fiction
of blood-relationship .
It is in the peculiarities of an undeveloped
society that we seize the first trace of a universal
succession . Contrasted with the organisation of
a modern state, the commonwealths of primitive
times may be fairly described as consisting of a
number of little despotic governments, each per-
fectly distinct from the rest, each absolutely con-
trolled by the prerogative of a single monarch .
But though the Patriarch, for we must not yet
call him the Pater-familias, had rights thus ex-
tensive, it is impossible to doubt that he lay
under an equal amplitude of obligations . If he
governed the family, it was for its behoof. If he

was lord of its possessions , he held them as trustee

for his children and kindred . He had no privilege
or position distinct from that conferred on him by
his relation to the petty commonwealth which he
governed . The Family, in fact , was a Corporation ;
and he was its representative or, we might almost
say, its Public officer. He enjoyed rights and
stood under duties , but the rights and duties
were, in the contemplation of his fellow-citizens
and in the eye of the law, quite as much those of
the collective body as his own . Let us consider

for a moment, the effect which would be produced

by the death of such a representative . In the eye
164 HISTORY OF TESTAMENTARY SUCCESSION [CHAP, VI

of the law, in the view of the civil magistrate , the

demise of the domestic authority would be a per-
fectly immaterial event . The person representing
the collective body of the family and primarily
responsible to municipal jurisdiction would bear
a different name ; and that would be all . The

rights and obligations which attached to the

deceased head of the house would attach, without
breach of continuity, to his successor ; for, in
point of fact, they would be the rights and ob-
ligations of the family, and the family had the
distinctive characteristic of a corporation - that
it never died . Creditors would have the same

remedies against the new chieftain as against the

old, for the liability being that of the still existing
family would be absolutely unchanged . All rights
available to the family would be as available after
the demise of the headship as before it -except
that the corporation would be obliged- if indeed
language so precise and technical can be properly
used of these early times- would be obliged to sue
under a slightly modified name .
The history of jurisprudence must be followed
in its whole course , if we are to understand how
gradually and tardily society dissolved itself into
the component atoms of which it is now constituted

-by what insensible gradations the relation of

man to man substituted itself for the relation

of the individual to his family, and of families to

each other. The point now to be attended to is
that even when the revolution had apparently
quite accomplished itself, even when the magistrate
had in great measure assumed the place of the
Pater-familias, and the civil tribunal substituted
CHAP. VI] THE FAMILY A CORPORATION 165

itself for the domestic forum , nevertheless the

whole scheme of rights and duties administered by
the judicial authorities remained shaped by the
influence of the obsolete privileges and coloured in
every part by their reflection . There seems little
question that the devolution of the Universitas
Juris, so strenuously insisted upon by the Roman
Law as the first condition of a testamentary or
intestate succession , was a feature of the older
form of society which men's minds have been
unable to dissociate from the new, though with
that newer phase it had no true or proper con-
nection. It seems, in truth, that the prolongation
of a man's legal existence in his heir, or in a group
of co-heirs, is neither more nor less than a charac-
teristic of the family transferred by a fiction to the
individual. Succession in corporations is neces-

sarily universal , and the family was a corporation .

Corporations never die . The decease of individual
members makes no difference to the collective

existence of the aggregate body, and does not in

any way effect its legal incidents, its faculties or
liabilities . Now in the idea of a Roman universal
succession all these qualities of a corporation seem
to have been transferred to the individual citizen .

His physical death is allowed to exercise no effect

on the legal position which he filled, apparently
on the principle that that position is to be adjusted
as closely as possible to the analogies of a family,
which, in its corporate character, was not of course
liable to physical extinction .
I observe that not a few Continental jurists
have much difficulty in comprehending the nature
of the connection between the conceptions, blended
166 HISTORY OF TESTAMENTARY SUCCESSION [CHAP. VI

in a universal succession, and there is perhaps no

topic in the philosophy of jurisprudence on which
their speculations, as a general rule, possess so
little value . But the student of English law ought
to be in no danger of stumbling at the analysis of
the idea which we are examining . Much light is
cast upon it by a fiction in our own system with
which all lawyers are familiar. English lawyers
classify corporations as Corporations aggregate and
Corporations sole . A Corporation aggregate is a
true Corporation, but a Corporation sole is an in-
dividual, being a member of a series of individuals ,
who is invested by a fiction with the qualities of
a Corporation. I need hardly cite the King or the
Parson of a Parish as instances of Corporations
sole. The capacity or office is here considered

apart from the particular person who from time

to time may occupy it , and, this capacity being
perpetual, the series of individuals who fill it are
clothed with the leading attribute of Corporations
-Perpetuity. Now in the older theory of Roman
Law the individual bore to the family precisely
the same relation which in the rationale of English
jurisprudence a Corporation sole bears to a Cor-
poration aggregate . The derivation and associa-
tion of ideas are exactly the same. In fact , if we

say to ourselves that for purposes of Roman Testa-

mentary Jurisprudence each individual citizen was
a Corporation sole , we shall not only realise the full
conception of an inheritance, but have constantly
at command the clue to the assumption in which
it originated . It is an axiom with us that the
King never dies, being a Corporation sole . His
capacities are instantly filled by his successor, and
CHAP, VI] INTESTATE SUCCESSION 167

the continuity of dominion is not deemed to have

been interrupted . With the Romans it seemed an
equally simple and natural process , to eliminate
the fact of death from the devolution of rights
and obligations . The testator lived on in his heir
or in the group of his co-heirs . He was in law
the same person with them , and if any one in his
testamentary dispositions had even constructively
violated the principle which united his actual and
his posthumous existence, the law rejected the
defective instrument, and gave the inheritance to
the kindred in blood, whose capacity to fulfil the
conditions of heirship was conferred on them by
the law itself, and not by any document which by
possibility might be erroneously framed .
When a Roman citizen died intestate or leaving
no valid Will, his descendants or kindred became
his heirs according to a scale which will be pre-
sently described . The person or class of persons
who succeeded did not simply represent the
deceased, but, in conformity with the theory just
delineated, they continued his civil life , his legal
existence . The same results followed when the
order of succession was determined by a Will, but
the theory of the identity between the dead man
and his heirs was certainly much older than any
form of Testament or phase of Testamentary
jurisprudence . This indeed is the proper moment
for suggesting a doubt which will press on us with
greater force the further we plumb the depths of
this subject-whether wills would ever have come
into being at all if it had not been for these re-
markable ideas connected with universal succes-

sion. Testamentary law is the application of a

168 HISTORY OF TESTAMENTARY SUCCESSION [CHAP. VI

principle which may be explained on a variety of

philosophical hypotheses as plausible as they are
gratuitous ; it is interwoven with every part of
modern society, and it is defensible on the broadest
grounds of general expediency. But the warning
can never be too often repeated, that the grand
source of mistake in questions of jurisprudence is
the impression that these reasons which actuate
us at the present moment , in the maintenance of
an existing institution , have necessarily anything
in common with the sentiment in which the in-

stitution originated . It is certain that, in the old

Roman Law of Inheritance, the notion of a will
or testament is inextricably mixed up, I might
almost say confounded , with the theory of a man's
posthumous existence in the person of his heir.
The conception of a universal succession , firmly
as it has taken root in jurisprudence , has not
occurred spontaneously to the framers of every
body of laws. Wherever it is now found, it may
be shown to have descended from Roman law ;
and with it have come down a host of legal rules
on the subject of Testaments and Testamentary
gifts , which modern practitioners apply without
discerning their relation to the parent theory.
But, in the pure Roman jurisprudence , the prin-
ciple that a man lives on in his Heir-the elimina-
tion, if we may so speak, of the fact of death- is
too obviously for mistake the centre round which
the whole Law of Testamentary and Intestate
succession is circling . The unflinching sternness
of the Roman law in enforcing compliance with
the governing theory would in itself suggest that
the theory grew out of something in the primitive
 CHAP. VI] ORIGINAL OBJECT OF WILLS 169

constitution of Roman society ; but we may push

the proof a good way beyond the presumption .

It happens that several technical expressions ,
dating from the earliest institution of wills at
Rome, have been accidentally preserved to us .
We have in Gaius the formula of investiture by
which the universal successor was created . We
have the ancient name by which the person after-
• wards called Heir was at first designated . We
have further the text of the celebrated clause in
the Twelve Tables by which the Testamentary
power was expressly recognised, and the clauses
regulating Intestate Succession have also been
preserved. All these archaic phrases have one
salient peculiarity. They indicate that what
passed from the Testator to the Heir was the
Family, that is, the aggregate of rights and duties
contained in the Patria Potestas and growing out
of it. The material property is in three instances
not mentioned at all ; in two others , it is visibly
named as an adjunct or appendage of the Family.
The original Will or Testament was therefore an
instrument, or (for it was probably not at first
in writing) a proceeding, by which the devolution
of the Family was regulated . It was a mode of
declaring who was to have the chieftainship , in
succession to the Testator. When Wills are
understood to have this for their original object,
we see at once how it is that they came to be
connected with one of the most curious relics of
ancient religion and law, the sacra , or Family Rites .
These sacra were the Roman form of an institution
which shows itself wherever society has not
wholly shaken itself free from its primitive clothing.
170 HISTORY OF TESTAMENTARY SUCCESSION [CHAP, VI

They are the sacrifices and ceremonies by which

the brotherhood of the family is commemorated,
the pledge and the witness of its perpetuity.
Whatever be their nature-whether it be true or
not that in all cases they are the worship of some
mythical ancestor- they are everywhere employed
to attest the sacredness of the family relation ;
and therefore they acquire prominent significance
and importance , whenever the continuous existence
of the Family is endangered by a change in the
person of its chief. Accordingly, we hear most
about them in connection with demises of domestic

sovereignty. Among the Hindoos, the right to

inherit a dead man's property is exactly co-exten-
sive with the duty of performing his obsequies.
If the rites are not properly performed or not
performed by the proper person , no relation is
considered as established between the deceased
and anybody surviving him ; the Law of Succes-
sion does not apply, and nobody can inherit the
property. Every great event in the life of a
Hindoo seems to be regarded as leading up to and
bearing upon these solemnities . If he marries, it
is to have children who may celebrate them after
his death ; if he has no children , he lies under the
strongest obligation to adopt them from another
family, " with a view," writes the Hindoo doctor,
" to the funeral cake , the water, and the solemn
sacrifice." The sphere preserved to the Roman
sacra in the time of Cicero, was not less in extent.
It embraced Inheritances and Adoptions . No
adoption was allowed to take place without due
provision for the sacra of the family from which
the adoptive son was transferred, and no Testa-
CHAP. VI] ROMAN AND HINDOO SACRA 171

ment was allowed to distribute an Inheritance

without a strict apportionment of the expenses of
these ceremonies among the different co-heirs .
The differences between the Roman law at this

epoch, when we obtain our last glimpse of the

sacra, and the existing Hindoo system, are most
instructive . Among the Hindoos , the religious
element in law has acquired a complete pre-
dominance. Family sacrifices have become the
keystone of all the Law of Persons and much of

the Law of Things . They have even received a

monstrous extension , for it is a plausible opinion
that the self-immolation of the widow at her hus-
band's funeral , a practice continued to historical
times by the Hindoos, and commemorated in the
traditions of several Indo -European races , was an
addition grafted on the primitive sacra, under the
influence of the impression, which always accom-
panies the idea of sacrifice, that human blood
is the most precious of all oblations . With the
Romans, on the contrary, the legal obligation
and the religious duty have ceased to be blended .
The necessity of solemnising the sacra forms no
part of the theory of civil law, but they are under
the separate jurisdiction of the College of Pontiffs.
The letters of Cicero to Atticus, which are full of
allusions to them, leave no doubt that they con-
stituted an intolerable burden on Inheritances ;
but the point of development at which law breaks
away from religion has been passed, and we are
prepared for their entire disappearance from the
later jurisprudence .
In Hindoo law there is no such thing as a true
Will. The place filled by Wills is occupied by
172 HISTORY OF TESTAMENTARY SUCCESSION [CHAP. VI

Adoptions . We can now see the relation of the

Testamentary Power to the Faculty of Adoption,
and the reason why the exercise of either of them
could call up a peculiar solicitude for the perform-
ance of the sacra . Both a Will and an Adoption
threaten a distortion of the ordinary course of
Family descent, but they are obviously contriv-
ances for preventing the descent being wholly
interrupted, when there is no succession of kindred

to carry it on. Of the two expedients Adoption ,

the factitious creation of blood-relationship , is the
only one which has suggested itself to the greater
part of archaic societies . The Hindoos have indeed
advanced one point on what was doubtless the
antique practice , by allowing the widow to adopt
when the father has neglected to do so , and there
are in the local customs of Bengal some faint
traces of the Testamentary powers . But to the
Romans belongs pre-eminently the credit of in-
venting the Will, the institution which , next to
the Contract, has exercised the greatest influence
in transforming human society . We must be
careful not to attribute to it in its earliest shape
the functions which have attended it in more

recent times. It was at first, not a mode of

distributing a dead man's goods , but one among
several ways of transferring the representation of
the household to a new chief. The goods descend
no doubt to the Heir, but that is only because the
government of the family carries with it in its
devolution the power of disposing of the common
stock . We are very far as yet from that stage in
the history of Wills in which they become powerful
instruments in modifying society through the
CHAP. VI ROMAN IDEAS OF SUCCESSIÓN 173

stimulus they give to the circulation of property

and the plasticity they produce in proprietary
rights. No such consequences as these appear in
fact to have been associated with the Testamentary
power even by the latest Roman lawyers . It will
be found that Wills were never looked upon in
the Roman community as a contrivance for parting
Property and the Family , or for creating a variety
of miscellaneous interests , but rather as a means
of making a better provision for the members of
a household than could be secured through the
rules of Intestate succession . We may suspect
indeed that the associations of a Roman with the
practice of will-making were extremely different
from those familiar to us nowadays . The habit
of regarding Adoption and Testation as modes
of continuing the Family cannot but have had
something to do with the singular laxity of Roman
notions as to the inheritance of sovereignty. It
is impossible not to see that the succession of the
early Roman Emperors to each other was con-
sidered reasonably regular, and that, in spite of
all that had occurred, no absurdity attached to
the pretension of such Princes as Theodosius or
Justinian to style themselves Cæsar and Augustus .
When the phenomena of primitive societies
emerge into light, it seems impossible to dispute
a proposition which the jurists of the seventeenth
century considered doubtful, that Intestate In-
heritance is a more ancient institution than

Testamentary Succession . As soon as this is

settled, a question of much interest suggests
itself, how and under what conditions were the
directions of a will first allowed to regulate the
174 HISTORY OF TESTAMENTARY SUCCESSION [CHAP. VI

devolution of authority over the household , and

consequently the posthumous distribution of pro-
perty. The difficulty of deciding the point arises
from the rarity of Testamentary power in archaic
communities . It is doubtful whether a true

power of testation was known to any original

society except the Roman . Rudimentary forms
of it occur here and there, but most of them are
not exempt from the suspicion of a Roman origin.
The Athenian Will was, no doubt, indigenous ,
but then, as will appear presently, it was only an
inchoate Testament . As to the Wills which are

sanctioned by the bodies of law which have

descended to us as the codes of the barbarian
conquerors of imperial Rome, they are almost
certainly Roman . The most penetrating German
criticism has recently been directed to these
leges Barbarorum , the great object of investigation
being to detach those portions of each system
which formed the customs of the tribe in its

original home from the adventitious ingredients

which were borrowed from the laws of the Romans.

In the course of this process , one result has

invariably disclosed itself, that the ancient nucleus
of the code contains no trace of a Will . Whatever
testamentary law exists, has been taken from

Roman jurisprudence . Similarly, the rudimen-

tary Testament which ( as I am informed) the
Rabbinical Jewish law provides for , has been
attributed to contact with the Romans. The only

form of Testament, not belonging to a Roman

or Hellenic society , which can with any reason
be supposed indigenous, is that recognised by
the usages of the province of Bengal ; and the
CHAP. VI PRIMITIVE OPERATIONS OF WILLS 175

Testament of Bengal, which some have even

supposed to be an invention of Anglo- Indian
lawyers, is at most only a rudimentary Will .
The evidence , however, such as it is, seems
to point to the conclusion that Testaments are
at first only allowed to take effect on failure of
the persons entitled to have the inheritance by
right of blood genuine or fictitious . Thus, when
Athenian citizens were empowered for the first
time by the Laws of Solon to execute Testaments ,
they were forbidden to disinherit their direct
male descendants . So , too , the Will of Bengal
is only permitted to govern the succession so far
as it is consistent with certain overriding claims
of the family. Again , the original institutions
of the Jews having provided nowhere for the
privileges of Testatorship, the latter Rabbinical
jurisprudence , which pretends to supply the casus
omissi of the Mosaic law, allows the power of
Testation to attach when all the kindred entitled

under the Mosaic system to succeed have failed

or are undiscoverable . The limitations by which
the ancient German codes hedge in the testamen-
tary jurisprudence which has been incorporated
with them are also significant, and point in the
same direction. It is the peculiarity of most of
these German laws , in the only shape in which
we know them , that , besides the allod or domain
of each household , they recognise several sub-
ordinate kinds or orders of property, each of
which probably represents a separate transfusion
of Roman principles into the primitive body of
Teutonic usage . The primitive German or allodial
property is strictly reserved to the kindred . Not
176 HISTORY OF TESTAMENTARY SUCCESSION [CHAP. VI

only is it incapable of being disposed of by testa-

ment, but it is scarcely capable of being alienated
by conveyance inter vivos . The ancient German

law, like the Hindoo jurisprudence, makes the

male children co-proprietors with their father,
and the endowment of the family cannot be
parted with except by the consent of all its
members. But the other sorts of property, of
more modern origin and lower dignity than the
allodial possessions, are much more easily alienated
than they, and follow much more lenient rules
of devolution . Women and the descendants of

women succeed to them , obviously on the principle

that they lie outside the sacred precinct of the
Agnatic brotherhood . Now, it is on these last
descriptions of property , and on these only, that
the Testaments borrowed from Rome were at
first allowed to operate .
These few indications may serve to lend
additional plausibility to that which in itself
appears to be the most probable explanation of
an ascertained fact in the early history of Roman
Wills . We have it stated on abundant authority

that Testaments, during the primitive period

of the Roman State, were executed in the Comitia
Calata , that is, in the Comitia Curiata, or Parlia-
ment of the Patrician Burghers of Rome, when
assembled for Private Business . This mode of
execution has been the source of the assertion,

handed down by one generation of civilians to

another, that every Will at one era of Roman
history was a solemn legislative enactment. But
there is no necessity whatever for resorting to
an explanation which has the defect of attributing
CHAP. VI] COMITIA CALATA 177

far too much precision to the proceedings of the

ancient assembly. The proper key to the story
concerning the execution of Wills in the Comitia
Calata must no doubt be sought in the oldest
Roman law of intestate succession. The canons

of primitive Roman jurisprudence regulating the

inheritance of relations from each other were,

so long as they remained unmodified by the

Edictal Law of the Prætor, to the following
effect - First , the sui or direct descendants who
had never been emancipated succeeded . On the
failure of the sui, the Nearest Agnate came into
their place, that is, the nearest person or class
of the kindred who was or might have been under
the same Patria Potestas with the deceased . The

third and last degree came next, in which the

inheritance devolved on the Gentiles , that is , on
the collective members of the dead man's gens
or House. The House, I have explained already,
was a fictitious extension of the family, consisting
of all Roman Patrician citizens who bore the same

name, and who on the ground of bearing the

same name, were supposed to be descended from
a common ancestor . Now the Patrician Assembly
called the Comitia Curiata was a Legislature in
which Gentes or Houses were exclusively repre-
sented . It was a representative assembly of the
Roman people, constituted on the assumption
that the constituent unit of the state was the Gens .

This being so , the inference seems inevitable,

that the cognisance of Wills by the Comitia was
connected with the rights of the Gentiles, and
was intended to secure them in their privilege
of ultimate inheritance. The whole apparent
12
178 HISTORY OF TESTAMENTARY SUCCESSION (CHAP. VI

anomaly is removed , if we suppose that a Testa-

ment could only be made when the Testator had
no gentiles discoverable , or when they waived their
claims, and that every Testament was submitted
to the General Assembly of the Roman Gentes, in
order that those aggrieved by its dispositions

might put their veto upon it if they pleased ,

or by allowing it to pass might be presumed to
have renounced their reversion . It is possible

that on the eve of the publication of the Twelve

Tables this vetoing power may have been greatly
curtailed or only occasionally and capriciously
exercised . It is much easier, however, to indicate
the meaning and origin of the jurisdiction confided
to the Comitia Calata , than to trace its gradual
development or progressive decay.
The Testament to which the pedigree of all
modern Wills may be traced is not, however, the
Testament executed in the Calata Comitia , but
another Testament designed to compete with it
and destined to supersede it . The historical
importance of this early Roman Will, and the
light it casts on much of ancient thought, will
excuse me for describing it at some length.
When the Testamentary power first discloses
itself to us in legal history, there are signs that ,
like almost all the great Roman institutions ,
it was the subject of contention between the
Patricians and the Plebeians . The effect of the

political maxim, Plebs Gentem non habet, "a

Plebeian cannot be a member of a house," was
entirely to exclude the Plebeians from the Comitia
Curiata. Some critics have accordingly supposed
that a Plebeian could not have his Will read or
CHAP. VI] PLEBEIAN WILLS 179

recited to the Patrician Assembly, and was thus

deprived of Testamentary privileges altogether.
Others have been satisfied to point out the hard-
ships of having to submit a proposed Will to the
unfriendly jurisdiction of an assembly in which
the Testator was not represented . Whatever be
the true view, a form of Testament came into use ,
which has all the characteristics of a contrivance
intended to evade some distasteful obligation .
The Will in question was a conveyance inter vivos,
a complete and irrevocable alienation of the

Testator's family and substance to the person

whom he meant to be his heir . The strict rules

of Roman law must always have permitted such

an alienation , but when the transaction was
intended to have a posthumous effect, there may
have been disputes whether it was valid for
Testamentary purposes without the formal assent
of the Patrician Parliament . If a difference of

opinion existed on the point between the two

classes of the Roman population, it was extin-
guished, with many other sources of heartburning,
by the great Decemviral compromise . The text
of the Twelve Tables is still extant which says ,

"Pater familias uti de pecuniâ tutelâve rei suæ

legássit, ita jus esto " -a law which can hardly
have had any other object than the legislation
of the Plebeian Will.
It is well known to scholars that , centuries
after the Patrician Assembly had ceased to be the
legislature of the Roman State, it still continued
to hold formal sittings for the convenience of
private business . Consequently, at a period long
subsequent to the publication of the Decemviral
180 HISTORY OF TESTAMENTARY SUCCESSION [CHAP. VI

Law, there is reason to believe that the Comitia

Calata still assembled for the validation of Tes-

taments . Its probable functions may be best

indicated by saying that it was a Court of Regis-
tration, with the understanding, however, that
the Wills exhibited were not enrolled, but simply
recited to the members, who were supposed to
take note of their tenor and to commit them to
memory. It is very likely that this form of
Testament was never reduced to writing at all ,
but at all events if the Will had been originally
written , the office of the Comitia was certainly
confined to hearing it read aloud , the document
being retained afterwards in the custody of the
Testator, or deposited under the safeguard of
some religious corporation . This publicity may
have been one of the incidents of the Testament
executed in the Comitia Calata which brought
it into popular disfavour. In the early years of
the Empire the Comitia still held its meetings ,
but they seem to have lapsed into the merest
form , and few Wills , or none, were probably
presented at the periodical sitting.
It is the ancient Plebeian Will-the alternative
of the Testament just described-which in its
remote effects has deeply modified the civilisation
of the modern world . It acquired at Rome all
the popularity which the Testament submitted
to the Calata Comitia appears to have lost . The
key to all its characteristics lies in its descent
from the mancipium, or ancient Roman convey-
ance, a proceeding to which we may unhesitatingly
assign the parentage of two great institutions
without which modern society can scarcely be
CHAP. VI] THE MANCIPATION 181

supposed capable of holding together, the Contract

and the Will. The Mancipium , or, as the word
would exhibit itself in later Latinity , the Manci-
pation, carries us back by its incidents to the
infancy of civil society . As it sprang from times
long anterior, if not to the invention , at all events
to the popularisation , of the art of writing,
gestures, symbolical acts, and solemn phrases take
the place of documentary forms , and a lengthy
and intricate ceremonial is intended to call the

attention of the parties to the importance of the

transaction , and to impress it on the memory
of the witnesses . The imperfection , too , of oral ,
as compared with written testimony necessitates
the multiplication of the witnesses and assistants
beyond what in later times would be reasonable
or intelligible limits .
The Roman Mancipation required the presence
first of all of the parties , the vendor and vendee,
or we should perhaps rather say, if we are to use
modern legal language, the grantor and grantee .
There were also no less than five witnesses ; and
an anomalous personage, the Libripens , who
brought with him a pair of scales to weigh the
uncoined copper money of ancient Rome. The
Testament we are considering-the Testament
per æs et libram, " with the copper and the scales ,"
as it long continued to be technically called - was
an ordinary Mancipation with no change in the
form and hardly any in words . The Testator
was the grantor ; the five witnesses and the
libripens were present ; and the place of grantee
was taken by a person known technically as the
familiæ emptor, the Purchaser of the Family.
182 HISTORY OF TESTAMENTARY SUCCESSION [CHAP, VI

The ordinary ceremony of a Mancipation was

then proceeded with . Certain formal gestures
were made and sentences pronounced . The

Emptor familiæ simulated the payment of a price

by striking the scales with a piece of money, and
finally the Testator ratified what had been done
in a set form of words called the " Nuncupatio "
or publication of the transaction , a phrase which,
I need scarcely remind the lawyer, has had a
long history in Testamentary jurisprudence . It is
necessary to attend particularly to the character
of the person called familiæ emptor. There is
no doubt that at first he was the Heir himself .

The Testator conveyed to him outright his whole

""
familia ," that is, all the rights he enjoyed over
and through the family ; his property, his slaves ,
and all his ancestral privileges, together, on the
other hand, with all his duties and obligations.
With these data before us, we are able to note
several remarkable points in which the Manci-
patory Testament, as it may be called , differed
in its primitive form from a modern Will . As
it amounted to a conveyance out- and-out of the
Testator's estate, it was not revocable. There

could be no new exercise of a power which had

been exhausted .

Again, it was not secret. The Familiæ Emptor,

being himself the Heir, knew exactly what his
rights were , and was aware that he was irreversibly
entitled to the inheritance ; a knowledge which
the violences inseparable from the best-ordered
ancient society rendered extremely dangerous .
But perhaps the most surprising consequences
of this relation of Testaments to Conveyances
CHAP. VI] MANCIPATORY WILLS 183

was the immediate vesting of the Inheritance

in the Heir. This has seemed so incredible to
not a few civilians, that they have spoken of the
Testator's estate as vesting conditionally on the
Testator's death , or as granted to him from a
time uncertain , i.e., the death of the grantor .
But down to the latest period of Roman juris-
prudence there was a certain class of transactions
which never admitted of being directly modified
by a condition, or of being limited to or from a
point of time. In technical language they did
not admit conditio or dies . Mancipation was one
of them , and therefore , strange as it may seem ,
we are forced to conclude that the primitive
Roman Will took effect at once , even though
the Testator survived his act of Testation . It

is indeed likely that Roman citizens originally

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

I explain how these inconveniences were remedied,

and how Testaments came to be invested with

the characteristics now universally associated

with them . The Testament was not necessarily
written at first, it seems to have been invariably
oral, and, even in later times, the instrument
declaratory of the bequests was only incidentally
connected with the Will and formed no essential
184 HISTORY OF TESTAMENTARY SUCCESSION [CHAP. VI

part of it . It bore in fact exactly the same

relation to the Testament which the deed leading
the uses bore to the Fines and Recoveries of old
English law, or which the charter of feoffment
bore to the feoffment itself. Previously, indeed ,
to the Twelve Tables , no writing would have been
of the slightest use, for the Testator had no
power of giving legacies , and the only persons
who could be advantaged by a will were the
Heir or Co-heirs . But the extreme generality
of the clause in the Twelve Tables soon produced
the doctrine that the heir must take the inheritance

burdened by any directions which the Testator

might give him , or, in other words , take it subject
to legacies . Written testamentary instruments
assumed thereupon a new value , as a security
against the fraudulent refusal of the heir to satisfy
the legatees ; but to the last it was at the Testator's
pleasure to rely exclusively on the testimony of
the witnesses , and to declare by word of mouth

the legacies which the familiæ emptor was com-

missioned to pay .

The terms of the expression Emptor familia

"
demand notice . ' Emptor indicates that the

Will was literally a sale, and the word " familiæ,"

when compared with the phraseology in the Testa-
mentary clause in the Twelve Tables, leads us
to some instructive conclusions . " Familia," in

classical Latinity, means always a man's slaves .

Here, however, and generally in the language of
ancient Roman law, it includes all persons under
his Potestas, and the Testator's material property
or substance is understood to pass as an adjunct
or appendage of his household. Turning to the
CHAP. VI] PRÆTORIAN WILLS 185

law of the Twelve Tables, it will be seen that it

speaks of tutela rei suæ, "the guardianship of his
substance," a form of expression which is the
exact reverse of the phrase just examined. There
does not therefore appear to be any mode of
escaping from the conclusion , that even at an era
so comparatively recent as that of the Decemviral
compromise, terms denoting " household " and
"" ""
property were blended in the current phrase-
ology. If a man's household had been spoken
of as his property we might have explained the
expression as pointing to the extent of the Patria
Potestas, but, as the interchange is reciprocal , we
must allow that the form of speech carries us back
to the primeval period in which property is owned
by the family, and the family is governed by the
citizen, so that the members of the community do
not own their property and their family, but rather
own their property through their family.
At an epoch not easy to settle with precision ,
the Roman Prætors fell into the habit of acting
upon Testaments solemnised in closer conformity
with the spirit than the letter of the law. Casual
dispensations became insensibly the established
practice , till at length a wholly new form of Will
was matured and regularly engrafted on the
Edictal Jurisprudence . The new
or Prætorian
Testament derived the whole of its impregnability

from the Jus Honorarium or Equity of Rome.

The Prætor of some particular year must have
inserted a clause in his Inaugural Proclamation
declaratory of his intention to sustain all Testa-
ments which should have been executed with such

and such solemnities ; and , the reform having

186 HISTORY OF TESTAMENTARY SUCCESSION [CHAP. VI

been found advantageous , the article relating

to it must have been again introduced by the
Prætor's successor, and repeated by the next in
office, till at length it formed a recognised portion
of that body of jurisprudence which from these
successive incorporations was styled the Per-
petual or Continuous Edict . On examining the
conditions of a valid Prætorian Will they will
be plainly seen to have been determined by the
requirements of the Mancipatory Testament , the
innovating Prætor having obviously prescribed to
himself the retention of the old formalities just
so far as they were warrants of genuineness or
securities against fraud . At the execution of the
Mancipatory Testament seven persons had been
present besides the Testator. Seven witnesses
were accordingly essential to the Prætorian Will ;
two of them corresponding to the libripens and
familiæ emptor, who were now stripped of their
symbolical character, and were merely present for
the purpose of supplying their testimony . No
emblematic ceremony was gone through ; the
Will was merely recited ; but then it is probable
(though not absolutely certain) that a written
instrument was necessary to perpetuate the evi-
dence of the Testator's dispositions . At all events,
whenever a writing was read or exhibited as a
person's last Will , we know certainly that the
Prætorian Court would not sustain it by special
intervention , unless each of the seven witnesses
had severally affixed his seal to the outside. This

is the first appearance of sealing in the history of

jurisprudence, considered as a mode of authen-
tication. The use of seals , however, as mere
CHAP. VI] THE BONORUM POSSESSIO 187

fastenings, is doubtless of much higher antiquity ;

and it appears to have been known to the Hebrews .
We may observe, that the seals of the Roman
Wills, and other documents of importance , did
not only serve as the index of the present or assent
of the signatary, but were also literally fastenings
which had to be broken before the writing could
be inspected .
The Edictal Law would therefore enforce the

dispositions of a Testator, when , instead of being

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

side of the Prætorian Court. No great chance of

error would be incurred by describing him as

having an equitable estate in the inheritance ; but
then, to secure ourselves against being deluded by
the analogy, we must always recollect that in one
year the Bonorum Possessio was operated upon by
a principle of Roman Law known as Usucapion,
and the Possessor became Quiritarian owner of all
the property comprised in the inheritance.
We know too little of the older law of Civil
Process to be able to strike the balance of advan-
tage and disadvantage between the different classes
of remedies supplied by the Prætorian Tribunal.
It is certain, however, that, in spite of its many
defects, the Mancipatory Testament by which the
universitas juris devolved at once and unimpaired
was never entirely superseded by the new Will ;
and at a period less bigoted to antiquarian forms,
and perhaps not quite alive to their significance,
all the ingenuity of the Jurisconsults seems to have
been expended on the improvement of the more
venerable instrument. At the era of Gaius, which
is that of the Antonine Cæsars, the great blemishes
of the Mancipatory Will had been removed.
Originally, as we have seen, the essential character
of the formalities had required that the Heir
himself should be the Purchaser of the Family,
and the consequence was that he not only in-
stantly acquired a vested interest in the Testator's
Property but was formally made aware of his
rights . But the age of Gaius permitted some un-
concerned person to officiate as Purchaser of the
Family. The Heir, therefore , was not necessarily
informed of the succession to which he was
CHAP. VI] IMPROVEMENTS IN THE OLD WILL 189

destined ; and Wills thenceforward acquired the

property of secrecy. The substitution of a stranger
for the actual Heir in the functions of " Familiæ
Emptor " had other ulterior consequences . As
soon as it was legalised , a Roman Testament came
to consist of two parts or stages, -a Conveyance,
which was a pure form, and a Nuncupatio , or
Publication . In this latter passage of the pro-

ceeding, the Testator either orally declared to the

assistants the wishes which were to be executed

after his death , or produced a written document

in which his wishes were embodied . It was not

probably till attention had been quite drawn off

from the imaginary Conveyance , and concentrated
on the Nuncupatio as the essential part of the
transaction , that Wills were allowed to become
revocable.
I have thus carried the pedigree of Wills some
way down in legal history . The root of it is the
old Testament " with the copper and the scales ,"
founded on a Mancipation or Conveyance . This
ancient Will has, however, manifold defects , which
are remedied , though only indirectly, by the
Prætorian law. Meantime the ingenuity of the

Jurisconsults effects, in the Common-Law Will or

Mancipatory Testament, the very improvements
which the Prætor may have concurrently carried
out in Equity. These last ameliorations depend ,
however, on mere legal dexterity , and we see
accordingly that the Testamentary Law of the
day of Gaius or Ulpian is only transitional. What
changes next ensued we know not ; but at length
just before the reconstruction of the jurisprudence
by Justinian, we find the subjects of the Eastern
190 HISTORY OF TESTAMENTARY SUCCESSION [CHAP. VI

Roman Empire employing a form of Will of which

the pedigree is traceable to the Prætorian Testa-
ment on one side , and to the Testament " with
the copper and the scales ," on the other. Like
the Testament of the Prætor, it required no
Mancipation, and was invalid unless sealed by
seven witnesses . Like the Mancipatory Will, it
passed the Inheritance and not merely a Bonorum
Possessio . Several , however, of its most important
features were annexed by positive enactments, and
it is out of regard to this threefold derivation from
the Prætorian Edict, from the Civil Law, and from
the Imperial Constitutions, that Justinian speaks
of the Law of Wills in his own day as Jus Triper-
titum. The new Testament thus described is the
one generally known as the Roman Will . But it
was the Will of the Eastern Empire only ; and
the researches of Savigny have shown that in
Western Europe the old Mancipatory Testament ,
with all its apparatus of conveyance , copper, and
scales, continued to be the form in use far down
.
in the Middle Ages .
 CHAPTER VII

ANCIENT AND MODERN IDEAS RESPECTING WILLS

AND SUCCESSIONS

ALTHOUGH there is much in the modern European

Law of Wills which is intimately connected with
the oldest rules of Testamentary disposition
practised among men, there are nevertheless
some important differences between ancient and
modern ideas on the subject of Wills and Succes-
sions . Some of the points of difference I shall
endeavour to illustrate in this chapter.
At a period, removed several centuries from
the era of the Twelve Tables , we find a variety of
rules engrafted on the Roman Civil Law with the
view of limiting the disinherison of children ;
we have the jurisdiction of the Prætor very
actively exerted in the same interest ; and we
are also
presented with a new remedy, very
anomalous in character and of uncertain origin ,
called the Querela Inofficiosi Testamenti, " the
Plaint of an Unduteous Will," directed to the
reinstatement of the issue in inheritances from

which they had been unjustifiably excluded by

a father's Testament . Comparing this condition
of the law with the text of the Twelve Tables
which concedes in terms the utmost liberty of
Testation , several writers have been tempted to
interweave a good deal of dramatic incident into
191
192 IDEAS AS TO WILLS AND SUCCESSIONS [CHAP. VII

their history of the Law Testamentary . They

tell us of the boundless license of disinherison
in which the heads of families instantly began to

indulge , of the scandal and injury to public morals

which the new practices engendered, and of the
applause of all good men which hailed the courage
of the Prætor in arresting the progress of paternal
depravity. This story, which is not without

some foundation for the principal fact it relates ,

is often so told as to disclose very serious mis-
conceptions of the principles of legal history.
The Law of the Twelve Tables is to be explained
by the character of the age in which it was enacted .
It does not license a tendency which a later era
thought itself bound to counteract , but it proceeds
on the assumption that no such tendency exists ,
or perhaps we should say, in ignorance of the
possibility of its existence . There is no likelihood

that Roman citizens began immediately to avail

themselves freely of the power to disinherit . It
is against all reason and sound appreciation of
history to suppose that the yoke of family bondage,
still patiently submitted to , as we know, where
its pressure galled most cruelly, would be cast off
in the very particular in which its incidence in
our own day is not otherwise than welcome .
The Law of the Twelve Tables permitted the
execution of Testaments in the only case in which
it was thought possible that they could be exe-
cuted, viz. , on failure of children and proximate
kindred . It did not forbid the disinherison of
direct descendants , inasmuch as it did not legislate
against a contingency which no Roman lawgiver
of that era could have contemplated . No doubt,
CHAP. VII] FEELING RESPECTING INTESTACY 193

as the offices of family affection progressively

lost the aspect of primary personal duties, the
disinherison of children was occasionally at-

tempted. But the interference of the Prætor,

so far from being called for by the universality
of the abuse, was doubtless first prompted by
the fact that such instances of unnatural caprice
were few and exceptional, and at conflict with
the current morality .
The indications furnished by this part of
Roman Testamentary Law are of a very different
kind . It is remarkable that a Will never seems

to have been regarded by the Romans as a means

of disinheriting a Family, or of affecting the
unequal distribution of a patrimony. The rules
of law preventing its being turned to such a
purpose, increase in number and stringency as
the jurisprudence unfolds itself ; and these rules
correspond doubtless with the abiding sentiment
of Roman society, as distinguished from occasional
variations of feeling in individuals . It would
rather seem as if the Testamentary Power were
chiefly valued for the assistance it gave in making
provision for a Family, and in dividing the in-
heritance more evenly and fairly than the Law
of Intestate Succession would have divided it . If
this be the true reading of the general sentiment
on the point, it explains to some extent the singular
horror of Intestacy which always characterised
the Roman . No evil seems to have been con-
sidered a heavier visitation than the forfeiture
of Testamentary privileges ; no curse appears
to have been bitterer than that which imprecated
on an enemy that he might die without a Will .
13
194 IDEAS AS TO WILLS AND SUCCESSIONS [CHAP. VII

The feeling has no counterpart, or none that is

easily recognisable, in the forms of opinion which
exist at the present day. All men at all times
will doubtless prefer chalking out the destination
of their substance to having their office performed
for them by the law ; but the Roman passion
for Testacy is distinguished from the mere desire
to indulge caprice by its intensity ; and it has ,
of course, nothing whatever in common with
that pride of family, exclusively the creation of
feudalism , which accumulates one description of
property in the hands of a single representative.
It is probable , à priori, that it was something
in the rules of Intestate Succession which caused

this vehement preference for the distribution of

property under a Testament over its distribution
by law. The difficulty, however, is, that on
glancing at the Roman Law of Intestate Succession
in the form which it wore for many centuries
before Justinian shaped it into that scheme of
inheritance which has been almost universally
adopted by modern lawgivers, it by no means
strikes one as remarkably unreasonable or in-
equitable . On the contrary, the distribution it
prescribes is so fair and rational, and differs so
little from that with which modern society has
been generally contented, that no reason suggests
itself why it should have been regarded with
extraordinary distaste, especially under a juris-
prudence which pared down to a narrow compass
the testamentary privileges of persons who had
children to provide for. We should rather have
expected that, as in France at this moment, the
heads of families would generally save themselves
CHAP. VII] ROMAN INTESTATE SUCCESSION 195

the trouble of executing a Will , and allow the

Law to do as it pleased with their assets . I
think, however, if we look a little closely at the
pre-Justinianean scale of Intestate Succession,
we shall discover the key to the mystery. The
texture of the law consists of two distinct parts .
One department of rules comes from the Jus
Civile , the Common-Law of Rome ; the other
from the Edict of the Prætor . The Civil Law,
as I have already stated for another purpose ,
calls to the inheritance only three orders of
successors in their turn ; the Unemancipated
children, the nearest class of Agnatic kindred ,
and the Gentiles . Between these three orders ,
the Prætor interpolates various classes of rela-
tives , of whom the Civil Law took no notice
whatever . Ultimately, the combination of the
Edict and of the Civil Law forms a table of

succession not materially different from that

which has descended to
to the generality of
modern codes .

The point for recollection is , that there must

anciently have been a time at which the rules
of the Civil Law determined the scheme of Intes-

tate Succession exclusively, and at which the

arrangements of the Edict were non-existent,
or not consistently carried out.
carried out . We cannot

doubt that, in its infancy , the Prætorian juris-

prudence had to contend with formidable obstruc-
tions , and it is more than probable that ,
long after popular sentiment and legal opinion
had acquiesced in it , the modifications which it
periodically introduced were governed by no
certain principles , and fluctuated with the varying
196 IDEAS AS TO WILLS AND SUCCESSIONS [CHAP. VII

bias of successive magistrates. The rules of

Intestate Succession , which the Romans must
at this period have practised , account , I think-
and more than account-for that vehement distaste

for an Intestacy to which Roman society during

so many ages remained constant . The order of
succession was this : on the death of a citizen,
having no will or no valid will , his Unemancipated
children became his Heirs. His emancipated sons
had no share in the inheritance . If he left no

direct descendants living at his death , the nearest

grade of the Agnatic kindred succeeded, but no
part of the inheritance was given to any relative
united (however closely) with the dead man
through female descents . All the other branches
of the family were excluded, and the inheritance
escheated to the Gentiles, or entire body of Roman
citizens bearing the same name with the deceased .
So that on failing to execute an operative Testa-
ment, a Roman of the era under examination

left his emancipated children absolutely without

provision, while , on the assumption that he died
childless, there was imminent risk that his posses-
sions would escape from the family altogether,
and devolve on a number of persons with whom
he was merely connected by the sacerdotal fiction
that assumed all members of the same gens to be
descended from a common ancestor . The prospect
of such an issue is in itself a nearly sufficient
explanation of the popular sentiment ; but , in
point of fact, we shall only half understand it,
if we forget that the state of things I have been
describing is likely to have existed at the very
moment when Roman society was in the first
CHAP. VII] FEELING RESPECTING INTESTACY 197

stage of its transition from its primitive organisa-

tion in detached families. The empire of the
father had indeed received one of the earliest
blows directed at it through the recognition of
Emancipation as a legitimate usage, but the law,
still considering the Patria Potestas to be the
root of family connection, persevered in looking
on the emancipated children as strangers to the
rights of kinship and aliens from the blood . We
cannot, however, for a moment suppose that the
limitations of the family imposed by legal pedantry
had their counterpart in the natural affection
of parents. Family attachments must still have
retained that nearly inconceivable sanctity and
intensity which belonged to them under the

Patriarchal system ; and so little are they likely

to have been extinguished by the act of emanci-
pation, that the probabilities are altogether the
other way. It may be unhesitatingly taken for
granted that enfranchisement from the father's
power was a demonstration, rather than a sever-
ance , of affection-a mark of grace and favour
accorded to the best-beloved and most esteemed
of the children . If sons thus honoured above

the rest were absolutely deprived of their heritage

by an Intestacy, the reluctance to incur it requires
no farther explanation . We might have assumed
à priori that the passion for Testacy was generated
by some moral injustice entailed by the rules of
Intestate succession ; and here we find them at
variance with the very instinct by which early
society was cemented together. It is possible to
put all that has been urged in a very succinct
form . Every dominant sentiment of the primitive
198 IDEAS AS TO WILLS AND SUCCESSIONS [CHAP. VII

Romans was entwined with the relations of the

family. But what was the Family ? The Law

defined it one way- natural affection another.
In the conflict between the two, the feeling we
would analyse grew up, taking the form of an
enthusiasm for the institution by which the
dictates of affection were permitted to determine
the fortunes of its object.
I regard, therefore, the Roman horror of

Intestacy as a monument of a very early conflict

between ancient law and slowly changing ancient
sentiment on the subject of the Family. Some
passages in the Roman Statute-Law, and one
statute in particular which limited the capacity
for inheritance possessed by women , must have
contributed to keep alive the feeling ; and it is
the general belief that the system of creating
Fidei -Commissa, or bequests in trust, was devised
to evade the disabilities imposed by those statutes.
But the feeling itself, in its remarkable intensity,
seems to point back to some deeper antagonism
between law and opinion ; nor is it at all wonderful
that the improvements of jurisprudence by the
Prætor should not have extinguished it. Every-
body conversant with the philosophy of opinion
is aware that a sentiment by no means dies out,
of necessity, with the passing away of the circum-
stances which produced it. It may long survive
them ; nay, it may afterwards attain to a pitch
and climax of intensity which it never attained
during their actual continuance .
The view of a Will which regards it as con-
ferring the power of diverting property from the
Family, or of distributing it in such uneven
CHAP. VII] MODERN WILLS 199

proportions as the fancy or good sense of the

Testator may dictate , is not older than that later
portion of the Middle Ages in which Feudalism
had completely consolidated itself. When modern

jurisprudence first shows itself in the rough ,

Wills are rarely allowed to dispose with absolute
freedom of a dead man's assets . Wherever at

this period the descent of property was regulated

by Will -and over the greater part of Europe
movable or personal property was the subject
of Testamentary disposition-the exercise of the
Testamentary power was seldom allowed to
interfere with the right of the widow to a definite
share, and of the children to certain fixed propor-
tions, of the devolving inheritance . The shares

of the children, as their amount shows, were

determined by the authority of Roman law. The
provision for the widow was attributable to the
exertions of the Church, which never relaxed its
solicitude for the interest of wives surviving their
husbands- winning, perhaps, one of the most
arduous of its triumphs when, after exacting
for two or three centuries an express promise

from the husband at marriage to endow his wife ,

it at length succeeded in engrafting the principle
of Dower on the Customary Law of all Western
Europe . Curiously enough, the dower of lands
proved a more stable institution than the analo-
gous and more ancient reservation of certain

shares of the personal property to the widow and

children . A few local customs in France main-

tained the right down to the Revolution , and

there are traces of similar usages in England ;
but on the whole the doctrine prevailed that
200 IDEAS AS TO WILLS AND SUCCESSIONS [CHAP. VII

movables might be freely disposed of by Will ,

and, even when the claims of the widow continued

to be respected, the privileges of the children

were obliterated from jurisprudence . We need
not hesitate to attribute the change to the in-
fluence of Primogeniture . As the Feudal law
of land practically disinherited all the children
in favour of one, the equal distribution even of
those sorts of property which might have been
equally divided ceased to be viewed as a duty.
Testaments were the principal instruments em-
ployed in producing inequality, and in this
'condition of things originated the shade of differ-
ence which shows itself between the ancient and

the modern conception of a Will. But, though

the liberty of bequest , enjoyed through Testaments,
was thus an accidental fruit of Feudalism, there
is no broader distinction than that which exists
between a system of free Testamentary disposition
and a system, like that of the Feudal land- law,
under which property descends compulsorily in
prescribed lines of devolution. This truth appears
to have been lost sight of by the authors of the
French Codes . In the social fabric which they
determined to destroy, they saw Primogeniture
resting chiefly on Family settlements, but they
also perceived that Testaments were frequently
employed to give the eldest son precisely the same
preference which was reserved to him under the
strictest of entails. In order, therefore, to make
sure of their work, they not only rendered it
impossible to prefer the eldest son to the rest in
marriage-arrangements, but they almost expelled
Testamentary succession from the law, lest it should
CHAP. VII] PRIMOGENITURE 201

be used to defeat their fundamental principle

of an equal distribution of property among
children at the parent's death . The result is
that they have established a system of small
perpetual entails which is infinitely nearer akin
to the system of feudal Europe than would be
a perfect liberty of bequest . The land-law of
England , " the Herculaneum of Feudalism ," is
certainly much more closely allied to the land-law
of the Middle Ages than that of any Continental

country, and Wills with us are frequently used

to aid or imitate that preference of the eldest
son and his line which is a nearly universal feature
in marriage settlements of real property. But
nevertheless feeling and opinion in this country
have been profoundly affected by the practice
of Free Testamentary disposition ; and it appears
to me that the state of sentiment in a great part
of French society, on the subject of the conserva-
tion of property in families , is much liker that
which prevailed throughout Europe two or three
centuries ago than are the current opinions of
Englishmen.
The mention of Primogeniture introduces one
of the most difficult problems of historical juris-
prudence . Though I have not paused to explain
my expressions, it may have been noticed that I
have frequently spoken of a number of " co-heirs "
as placed by the Roman Law of Succession on the
same footing with a single Heir. In point of fact,
we know of no period of Roman jurisprudence at
which the place of the Heir, or Universal Successor,
might not have been taken by a group of co-heirs .
This group succeeded as a single unit, and the
202 IDEAS AS TO WILLS AND SUCCESSIONS [CHAP. VII

assets were afterwards divided among them in a

separate legal proceeding . When the Succession
was ab intestato, and the group consisted of the
children of the deceased, they each took an equal
share of the property ; nor , though males had at
one time some advantages over females, is there
the faintest trace of Primogeniture. The mode
of distribution is the same throughout archaic
jurisprudence. It certainly seems that, when civil
society begins and families cease to hold together
through a series of generations, the idea which
spontaneously suggests itself is to divide the
domain equally among the members of each
successive generation , and to reserve no privilege
to the eldest son or stock. Some peculiarly
significant hints as to the close relation of this
phenomenon to primitive thought are furnished
by systems yet more archaic than the Roman.
Among the Hindoos, the instant a son is born , he
acquires a vested right in his father's property,
which cannot be sold without recognition of his
joint-ownership . On the son's attaining full age,
he can sometimes compel a partition of the estate,
even against the consent of the parent ; and,
should the parent acquiesce , one son can always
have a partition even against the will of the others .
On such partition taking place, the father has no
advantage over his children , except that he has
two of the shares instead of one. The ancient law

of the German tribes was exceedingly similar.

The allod or domain of the family was the joint
property of the father and his sons. It does not,
however, appear to have been habitually divided
even at the death of the parent, and in the same
CHAP. VII] PRIMOGENITURE 203

way the possessions of a Hindoo , however divisible

theoretically, are so rarely distributed in fact, that
many generations constantly succeed each other
without a partition taking place , and thus the
Family in India has a perpetual tendency to expand
into the Village Community, under conditions
which I shall hereafter attempt to elucidate . All
this points very clearly to the absolutely equal divi-
sion of assets among the male children at death as
the practice most usual with society at the period
when family dependency is in the first stages of
disintegration . Here then emerges the historical
difficulty of Primogeniture . The more clearly we
perceive that, when the Feudal institutions were
in process of formation , there was no source in
the world whence they could derive their elements
but the Roman Law of the provincials on the one
hand and the archaic customs of the barbarians

on the other, the more are we perplexed at first

sight by our knowledge that neither Roman nor
barbarian was accustomed to give any preference
to the eldest son or his line in the succession to

property .
Primogeniture did not belong to the Customs
which the barbarians practised on their first
establishment within the Roman Empire. It is

known to have had its origin in the benefices or

beneficiary gifts of the invading chieftains. These

benefices , which were occasionally conferred by

the earlier immigrant kings, but were distributed
on a great scale by Charlemagne, were grants of
Roman provincial land to be holden by the
beneficiary on condition of military service. The
allodial proprietors do not seem to have followed
204 IDEAS AS TO WILLS AND SUCCESSIONS [CHAP. VII

their sovereign on distant or difficult enterprises,

and all the grander expeditions of the Frankish
chiefs and of Charlemagne were accomplished with
forces composed of soldiers either personally de-
pendent on the royal house or compelled to serve
it by the tenure of their land . The benefices ,
however, were not at first in any sense hereditary.
They were held at the pleasure of the grantor, or
at most for the life of the grantee ; but still, from
the very outset, no effort seems to have been
spared by the beneficiaries to enlarge the tenure,
and to continue their lands in their family after
death . Through the feebleness of Charlemagne's

successors , these attempts were universally suc-

cessful , and the Benefice gradually transformed
itself into the hereditary Fief. But, though the
fiefs were hereditary, they did not necessarily
descend to the eldest son. The rules of succession

which they followed were entirely determined by

the terms agreed upon between the grantor and
the beneficiary, or imposed by one of them on
the weakness of the other. The original tenures
were therefore extremely various ; not indeed so
capriciously various as is sometimes asserted , for
all which have hitherto been described present
some combination of the modes of succession

familiar to Romans and to barbarians, but still

exceedingly miscellaneous . In some of them the
eldest son and his stock undoubtedly succeeded
to the fief before the others , but such successions ,
so far from being universal , do not even appear to
have been general. Precisely the same phenomena
recur during that more recent transmutation of
European society which entirely substituted the
CHAP. VII] ALLODS AND FIEFS 205

feudal form of property for the domainia ( or

Roman) and the allodial (or German) . The allods
were wholly absorbed by the fiefs. The greater
allodial proprietors transformed themselves into
feudal lords by conditional alienations of portions
of their land to dependants ; the smaller sought
an escape from the oppressions of that terrible
time by surrendering their property to some
powerful chieftain , and receiving it back at his
hands on condition of service in his wars . Mean-

time, that vast mass of the population of Western

Europe whose condition was servile or semi-
servile-the Roman and German personal slaves,
the Roman coloni and the German lidi - were

concurrently absorbed by the feudal organisation ,

a few of them assuming a menial relation to the
lords , but the greater part receiving lands on terms
which in those centuries were considered degrading.
The tenures created during this era of universal
infeudation were as various as the conditions
which the tenants made with their new chiefs or

were forced to accept from them . As in the case

of the benefices, the succession to some, but by
no means all, of the estates followed the rule

of Primogeniture . No sooner , however, has the

feudal system prevailed throughout the West ,
than it becomes evident that Primogeniture has
some great advantage over every other mode of
succession . It spread over Europe with remark-
able rapidity , the principal instrument of diffusion
being Family Settlements, the Pactes de Famille
of France and Haus-Gesetze of Germany, which
universally stipulated that lands held by knightly
service should descend to the eldest son . Ulti-
206 IDEAS AS TO WILLS AND SUCCESSIONS [CHAP. VII

mately the law resigned itself to follow inveterate

practice, and we find that in all the bodies of
Customary Law, which were gradually built up,
the eldest son and stock are preferred in the suc-
cession to estates of which the tenure is free and

military. As to lands held by servile tenures

(and originally all tenures were servile which
bound the tenant to pay money or bestow manual
labour), the system of succession prescribed by
custom differed greatly in different countries and
different provinces . The more general rule was
that such lands were divided equally at death
among all the children , but still in some instances

the eldest son was preferred , in some the youngest.

But Primogeniture usually governed the inherit-
ance of that class of estates , in some respects the
most important of all, which were held by tenures
that, like the English Socage , were of later origin
than the rest, and were neither altogether free nor
altogether servile.
The diffusion of Primogeniture is usually ac-
counted for by assigning what are called Feudal
reasons for it . It is asserted that the feudal

superior had a better security for the military

service he required when the fief descended to a
single person, instead of being distributed among
a number on the decease of the last holder. With-
out denying that this consideration may partially
explain the favour gradually acquired by Primo-
geniture, I must point out that Primogeniture
became a custom of Europe much more through
its popularity with the tenants than through any
advantage it conferred on the lords . For its
origin, moreover, the reason given does not account
CHAP. VII] DIFFUSION OF PRIMOGENITURE 207

at all . Nothing in law springs entirely from a

sense of convenience . There are always certain
ideas existing antecedently on which the sense of
convenience works , and of which it can do no more
than form some new combination ; and to find
these ideas in the present case is exactly the
problem .
A valuable hint is furnished to us from a

quarter fruitful of such indications . Although in

India the possessions of a parent are divisible at
his death, and may be divisible during his life ,
among all his male children in equal shares , and
though this principle of the equal distribution of
property extends to every part of the Hindoo in-
stitutions, yet wherever public office or political
power devolves at the decease of the last Incum-
bent, the succession is nearly universally according
to the rules of Primogeniture . Sovereignties
descend therefore to the eldest son, and where
the affairs of the Village Community, the corporate
unit of Hindoo society, are confided to a single
manager, it is generally the eldest son who takes
up the administration at his parent's death . All
offices, indeed, in India , tend to become hereditary,
and, when their nature permits it, to vest in the
eldest member of the oldest stock . Comparing
these Indian successions with some of the ruder

social organisations which have survived in Europe

almost to our own day, the conclusion suggests
itself that, when Patriarchal power is not only
domestic but political, it is not distributed among
all the issue at the parent's death, but is the
birthright of the eldest son. The chieftainship of
a Highland clan , for example, followed the order
208 IDAES AS TO WILLS AND SUCCESSIONS (CHAP. VII

of Primogeniture . There seems , in truth , to be a

form of family dependency still more archaic than
any of those which we know from the primitive
records of organised civil societies . The Agnatic
Union of the kindred in ancient Roman law, and
a multitude of similar indications , point to a period
at which all the ramifying branches of the family
tree held together in one organic whole ; and it
is no presumptuous conjecture, that, when the
corporation thus formed by the kindred was in
itself an independent society, it was governed by
the eldest male of the oldest line . It is true that

we have no actual knowledge of any such society .

Even in the most elementary communities, family-
organisations , as we know them, are at most
imperia in imperio. But the position of some of
them , of the Celtic clans in particular, was suffi-
ciently near independence within historical times
to force on us the conviction that they were once
separate imperia, and that Primogeniture regulated
the succession to the chieftainship . It is, however,
necessary to be on our guard against modern
associations with the term of law. We are
speaking of a family-connection still closer and
more stringent than any with which we are made
acquainted by Hindoo society or ancient Roman
law. If the Roman Paterfamilias was visible

steward of the family possessions , if the Hindoo

father is only joint sharer with his sons , still more
emphatically must the true patriarchal chieftain
be merely the administrator of a common fund.
The examples of succession by Primogeniture
which were found among the Benefices may, there-
fore, have been imitated from a system of family-
CHAP. VII] FALL OF CARLOVINGIAN EMPIRE 209

government known to the invading races , though

not in general use. Some ruder tribes may have
still practised it, or, what is still more probable,
society may have been so slightly removed from
its more archaic condition that the minds of some
men spontaneously recurred to it, when they were
called upon to settle the rules of inheritance for
a new form of property. But there is still the

question, Why did Primogeniture gradually super-

sede every other principle of succession ? The

answer, I think, is, that European society de-

cidedly retrogaded during the dissolution of the
Carlovingian empire . It sank a point or two back
even from the miserably low degree which it had
marked during the earlier barbarian monarchies .
The great characteristic of the period was the
feebleness , or rather the abeyance, of kingly and
therefore of civil authority ; and hence it seems
as if, civil society no longer cohering , men univer-
sally flung themselves back on a social organisa-
tion older than the beginnings of civil communities.
The lord with his vassals, during the ninth and
tenth centuries , may be considered as a patriarchal
household, recruited, not as in the primitive times
by Adoption, but by Infeudation ; and to such a
confederacy, succession by Primogeniture was a
source of strength and durability . So long as
the land was kept together on which the entire
organisation rested, it was powerful for defence
and attack ; to divide the land was to divide the
little society, and voluntarily to invite aggression
in an era of universal violence . We may be
perfectly certain that into this preference for
Primogeniture there entered no idea of disin-
14
210 IDEAS AS TO WILLS AND SUCCESSIONS [CHAP. VII

heriting the bulk of the children in favour of one.

Everybody would have suffered by the division
of the fief. Everybody was a gainer by its
consolidation . The Family grew stronger by the
concentration of power in the same hands ; nor is
it likely that the lord who was invested with the
inheritance had any advantage over his brethren
and kinsfolk in occupations, interests, or indul-
gences. It would be a singular anachronism to
estimate the privileges succeeded to by the heir
of a fief, by the situation in which the eldest son
is placed under an English strict settlement .
I have said that I regard the early feudal con-
federacies as descended from an archaic form of

the Family, and as wearing a strong resemblance

to it. But then in the ancient world , and in the
societies which have not passed through the cru-
cible of feudalism, the Primogeniture which seems
to have prevailed never transformed itself into
the Primogeniture of the later feudal Europe.
When the group of kinsmen ceased to be governed
through a series of generations by a hereditary
chief, the domain which had been managed for all
appears to have been equally divided among all .
Why did this not occur in the feudal world ? If
during the confusions of the first feudal period
the eldest son held the land for the behoof of the

whole family, why was it that when feudal Europe

had consolidated itself, and regular communities
were again established , the whole family did not
resume that capacity for equal inheritance which
had belonged to Roman and German alike ? The
key which unlocks this difficulty has rarely been
seized by the writers who occupy themselves in
CHAP. VII] MODERN VIEW OF CHIEFTAINSHIP 211

tracing the genealogy of Feudalism . They per-

ceive the materials of the feudal institutions, but
they miss the cement. The ideas and social forms
which contributed to the formation of the system
were unquestionably barbarian and archaic, but
as soon as Courts and lawyers were called in to
interpret and define it , the principles of interpre-
tation which they applied to it were those of the
latest Roman jurisprudence , and were therefore
excessively refined and matured . In a patriarch-
ally governed society, the eldest son may succeed
to the government of the Agnatic group , and to
the absolute disposal of its property. But he is
not therefore a true proprietor. He has correla-
tive duties not involved in the conception of
proprietorship, but quite undefined and quite
incapable of definition . The later Roman juris-
prudence, however , like our own law, looked upon
uncontrolled power over property as equivalent
to ownership, and did not, and , in fact, could not ,
take notice of liabilities of such a kind, that the
very conception of them belonged to a period
anterior to regular law. The contact of the re-
fined and the barbarous notion had inevitably
for its effect the conversion of the eldest son into
legal proprietor of the inheritance . The clerical
and secular lawyers so defined his position from
the first ; but it was only by insensible degrees
that the younger brother, from participating on
equal terms in all the dangers and enjoyments of
his kinsman, sank into the priest, the soldier of
fortune, or the hanger-on of the mansion . The

legal revolution was identical with that which

occurred on a smaller scale, and in quite recent
212 IDEAS AS TO WILLS AND SUCCESSIONS [CHAP. VII

times , through the greater part of the Highlands

of Scotland . When called in to determine the
legal powers of the chieftain over the domains

which gave sustenance to the clan , Scottish juris-

prudence had long since passed the point at which
it could take notice of the vague limitations on
completeness of dominion imposed by the claims
of the clansmen, and it was inevitable therefore
that it should convert the patrimony of many into
the estate of one.

For the sake of simplicity, I have called the

mode of succession Primogeniture whenever a
single son or descendant succeeds to the authority
over a household or society . It is remarkable,
however, that in the few very ancient examples
which remain to us of this sort of succession ,
it is not always the eldest son , in the sense familiar
to us, who takes up the representation . The
form of Primogeniture which has spread over
Western Europe has also been perpetuated among
the Hindoos , and there is every reason to believe
that it is the normal form . Under it, not only
the eldest son , but the eldest line is always
preferred . If the eldest son fails , his eldest son
has precedence not only over brothers but over
uncles ; and, if he too fails , the same rule is
followed in the next generation . But when the
succession is not merely to civil but to political
power, a difficulty may present itself which will
appear of greater magnitude according as the
cohesion of society is less perfect . The chieftain
who last exercised authority may have outlived
his eldest son, and the grandson who is primarily
entitled to succeed may be too young and imma-
CHAP. VII] FORMS OF PRIMOGENITURE 213

ture to undertake the actual guidance of the

community, and the administration of its affairs .
In such an event , the expedient which suggests
itself to the more settled societies is to place the
infant heir under guardianship till he reaches
the age of fitness for government . The guardian-
ship is generally that of the male Agnates ; but
it is remarkable that the contingency supposed
is one of the rare cases in which ancient societies
have consented to the exercise of power by women ,

doubtless out of respect to the overshadowing

claims of the mother. In India, the widow of a
Hindoo sovereign governs in the name of her
infant son, and we cannot but remember that the
custom regulating succession to the throne of
France-which , whatever be its origin , is doubtless
of the highest antiquity- preferred the queen-
mother to all other claimants for the Regency,
at the same time that it rigorously excluded all
females from the throne . There is , however,
another mode of obviating the inconvenience
attending the devolution of sovereignty on an
infant heir, and it is one which would doubtless
occur spontaneously to rudely organised com-
munities . This is to set aside the infant heir

altogether, and confer the chieftainship on the

eldest surviving male of the first generation . The
Celtic clan-associations, among the many pheno-

mena which they preserved of an age in which

civil and political society were not yet even
rudimentarily separated, have brought down this
rule of succession to historical times . With them,
it seems to have existed in the form of a positive
canon, that, failing the eldest son , his next brother
 214 IDEAS AS TO WILLS AND SUCCESSIONS [CHAP. VII

succeeds in priority to all grandsons, whatever

be their age at the moment when the sovereignty
devolves . Some writers have explained the prin-
ciple by assuming that the Celtic customs took
the last chieftain as a sort of root or stock, and
then gave the succession to the descendant who
should be least remote from him ; the uncle thus
being preferred to the grandson as being nearer
to the common root . No objection can be taken
to this statement if it be merely intended as a
description of the system of succession ; but it
would be a serious error to conceive the men
who first adopted the rule as applying a course
of reasoning which evidently dates from the time
when feudal schemes of succession began to be
debated among lawyers. The true origin of the
preference of the uncle to the grandson is doubtless
a simple calculation on the part of rude men
in a rude society that it is better to be governed
by a grown chieftain than by a child, and that
the younger son is more likely to have come
to maturity than any of the eldest son's descen-
dants . At the same time , we have some evidence
that the form of Primogeniture with which we
are best acquainted is the primary form, in the
tradition that the assent of the clan was asked

when an infant heir was passed over in favour

of his uncle . There is a tolerably well authenti-
cated instance of this ceremony in the annals
of the Scottish Macdonalds ; and Irish Celtic
antiquities, as interpreted by recent inquirers,
are said to disclose many traces of similar prac-
tices . The substitution by means of election,
of a " worthier " Agnatic relative for an elder
CHAP. VII MAHOMETAN RULE 215

is not unknown, too , in the system of the Indian

Village Communities .
Under Mahometan law, which has probably
preserved an ancient Arabian custom, inheritances
of property are divided equally among sons , the
daughters taking a half share ; but if any of the
children die before the division of the inheritance ,
leaving issue behind, these grandchildren are
entirely excluded by their uncles and aunts.
Consistently with this principle , the succession ,
when political authority devolves, is according
to the form of Primogeniture which appears to
have obtained among the Celtic societies . In the
two great Mahometan families of the West , the
rule is believed to be, that the uncle succeeds to
the throne in preference to the nephew, though
the latter be the son of an elder brother ; but
though this rule has been followed quite recently
both in Egypt and in Turkey, I am informed
that there has always been some doubt as to its
governing the devolution of the Turkish sove-
reignty. The policy of the Sultans has in fact
generally prevented cases for its application from
occurring, and it is possible that their wholesale
massacres of their younger brothers may have
been perpetrated quite as much in the interest
of their children as for the sake of making away
with dangerous competitors for the throne. It

is evident , however, that in polygamous societies

the form of Primogeniture will always tend to
vary. Many considerations may constitute a
claim on the succession , the rank of the mother,
for example, or her degree in the affections of
the father. Accordingly, some of the Indian
216 IDEAS AS TO WILLS AND SUCCESSIONS [CHAP. VII

Mahometan sovereigns, without pretending to

any distinct testamentary power, claim the right
of nominating the son who is to succeed . The
blessing mentioned in the Scriptural history of
Isaac and his sons has sometimes been spoken
of as a will, but it seems rather to have been a
mode of naming an eldest son.
 CHAPTER VIII

THE EARLY HISTORY OF PROPERTY

THE Roman Institutional Treatises, after giving

their definition of the various forms and modifi-

cations of ownership, proceed to discuss the

Natural Modes of Acquiring Property . Those
who are unfamiliar with the history of juris-
prudence are not likely to look upon these " natural
modes " of acquisition as possessing, at first sight,
either much speculative or much practical interest .
The wild animal which is snared or killed by the
hunter, the soil which is added to our field by the
imperceptible deposits of a river, the tree which
strikes its root into our ground , are each said
by the Roman lawyers to be acquired by us
naturally. The older jurisconsults had doubtless
observed that such acquisitions were universally
sanctioned by the usages of the little societies
around them , and thus the lawyers of a later age,
finding them classed in the ancient Jus Gentium ,
and perceiving them to be of the simplest de-
scription, allotted them a place among the ordi-
nances of Nature . The dignity with which they
were invested has gone on increasing in modern
times till it is quite out of proportion to their
original importance . Theory has made them its
favourite food, and has enabled them to exercise
the most serious influence on practice.
217
 218 EARLY HISTORY OF PROPERTY [CHAP. VIII

It will be necessary for us to attend to one

only among these " natural modes of acquisition ,"
Occupatio or Occupancy . Occupancy is the ad-
visedly taking possession of that which at the
moment is the property of no man, with the view
(adds the technical definition) of acquiring pro-
perty in it for yourself. The objects which the
Roman lawyers called res nullius- things which
have not or have never had an owner-can only

be ascertained by enumerating them. Among

things which never had an owner are wild animals,
fishes, wild fowl, jewels disinterred for the first
time, and lands newly discovered or never before
cultivated. Among things which have not an
owner are movables which have been abandoned,
lands which have been deserted, and (an anoma-
lous but most formidable item) the property of
an enemy. In all these objects the full rights
of dominion were acquired by the Occupant, who
first took possession of them with the intention
of keeping them as his own-an intention which,
in certain cases, had to be manifested by specific
acts. It is not difficult, I think, to understand
the universality which caused the practice of
Occupancy to be placed by one generation of
Roman lawyers in the Law common to all Nations,
and the simplicity which occasioned its being
attributed by another to the Law of Nature.
But for its fortunes in modern legal history we

are less prepared by à priori considerations . The

Roman principle of Occupancy, and the rules
into which the jurisconsults expanded it, are the
source of all modern International Law on the

subject of Capture in War and of the acquisition

CHAP. VIII] OCCUPANCY 219

of sovereign rights in newly discovered countries .

They have also supplied a theory of the Origin
of Property, which is at once the popular theory,
and the theory which, in one form or another,
is acquiesced in by the great majority of specula-
tive jurists .
I have said that the Roman principle of
Occupancy has determined the tenor of that
chapter of International Law which is concerned
with Capture in War . The Law of Warlike
Capture derives its rules from the assumption
that communities are remitted to a state of nature

by the outbreak of hostilities , and that, in the

artificial natural condition thus produced , the
institution of private property falls into abeyance
so far as concerns the belligerents . As the later
writers on the Law of Nature have always been
anxious to maintain that private property was
in some sense sanctioned by the system which
they were expounding, the hypothesis that an
enemy's property is res nullius has seemed to
them perverse and shocking, and they are careful
to stigmatise it as a mere fiction of jurisprudence .
But, as soon as the Law of Nature is traced to
its source in the Jus Gentium , we see at once how
the goods of an enemy came to be looked upon
as nobody's property, and therefore as capable
of being acquired by the first occupant. The
idea would occur spontaneously to persons prac-
tising the ancient forms of Warfare, when victory
dissolved the organisation of the conquering army
and dismissed the soldiers to indiscriminate

plunder. It is probable, however, that originally

it was only movable property which was thus
220 EARLY HISTORY OF PROPERTY [CHAP. VIII

permitted to be acquired by the Captor. We

know on independent authority that a very
different rule prevailed in ancient Italy as to
the acquisition of ownership in the soil of a
conquered country, and we may therefore suspect
that the application of the principle of occupancy
to land (always a matter of difficulty) dates from
the period when the Jus Gentium was becoming
the Code of Nature, and that it is the result of
a generalisation effected by the jurisconsults of
the golden age . Their dogmas on the point are
preserved in the Pandects of Justinian , and
amount to an unqualified assertion that enemy's
property of every sort is res nullius to the other
belligerent, and that Occupancy, by which the
Captor makes it his own, is an institution of
Natural Law. The rules which International
jurisprudence derives from these positions have
sometimes been stigmatised as needlessly indulgent
to the ferocity and cupidity of combatants, but
the charge has been made, I think, by persons
who are unacquainted with the history of wars,
and who are consequently ignorant how great
an exploit it is to command obedience for a rule
of any kind . The Roman principle of Occupancy,
when it was admitted into the modern law of
Capture in War, drew with it a number of sub-
ordinate canons , limiting and giving precision
to its operation , and if the contests which have
been waged since the treatise of Grotius became
an authority, are compared with those of an
earlier date , it will be seen that, as soon as the
Roman maxims were received, Warfare instantly
assumed a more tolerable complexion . If the
CHAP. VIII] RULE OF DISCOVERY 221

Roman law of Occupancy is to be taxed with

having had pernicious influence on any part
of the modern Law of Nations, there is another
chapter in it which may be said, with some reason ,
to have been injuriously affected . In applying
to the discovery of new countries the same prin-
ciples which the Romans had applied to the
finding of a jewel, the Publicists forced into their
service a doctrine altogether unequal to the task
expected from it . Elevated into extreme import-
ance by the discoveries of the great navigators of
the fifteenth and sixteenth centuries, it raised more
disputes than it solved . The greatest uncertainty
was very shortly found to exist on the very two
points on which certainty was most required ,
the extent of the territory which was acquired
for his sovereign by the discoverer, and the nature
of the acts which were necessary to complete

the adprehensio or assumption of sovereign pos-

session. Moreover, the principle itself, conferring
as it did such enormous advantages as the
consequence of a piece of good luck, was instinc-
tively mutinied against by some of the most
adventurous nations in Europe, the Dutch , the
English, and the Portuguese . Our own country-
men, without expressly denying the rule of Inter-
national Law, never did, in practice, admit the
claim of the Spaniards to engross the whole of
America south of the Gulf of Mexico , or that
of the King of France to monopolise the valleys
of the Ohio and the Mississippi . From the
accession of Elizabeth to the accession of Charles

the Second, it cannot be said that there was at

any time thorough peace in the American waters ,
222 EARLY HISTORY OF PROPERTY [CHAP. VIII

and the encroachments of the New England

Colonists on the territory of the French King
continued for almost a century longer. Bentham
was so struck with the confusion attending the
application of the legal principle , that he went
out of his way to eulogise the famous Bull of
Pope Alexander the Sixth , dividing the undis-
covered countries of the world between the

Spaniards and Portuguese by a line drawn one

hundred leagues West of the Azores ; and ,
grotesque as his praises may appear at first
sight, it may be doubted whether the arrangement
of Pope Alexander is absurder in principle than
the rule of Public Law which gave half a continent
to the monarch whose servants had fulfilled the
conditions required by Roman jurisprudence for
the acquisition of property in a valuable object
which could be covered by the hand .
To all who pursue the inquiries which are the
subject of this volume, Occupancy is pre-eminently
interesting on the score of the service it has been
made to perform for speculative jurisprudence ,
in furnishing a supposed explanation of the origin
of private property. It was once universally
believed that the proceeding implied in Occupancy
was identical with the process by which the earth
and its fruits, which were at first in common ,
became the allowed property of individuals.The
course of thought which led to this assumption
is not difficult to understand, if we seize the shade
of difference which separates the ancient from
themodern conception of Natural Law. The
Roman lawyers had laid down that Occupancy
was one of the Natural modes of acquiring pro-
CHAP. VIII] ORIGIN OF PROPERTY 223

perty, and they undoubtedly believed that, were

mankind living under the institutions of Nature ,
Occupancy would be one of their practices . How
far they persuaded themselves that such a con-
dition of the race had ever existed, is a point ,

as I have already stated, which their language

leaves in much uncertainty ; but they certainly
do seem to have made the conjecture , which has
at all times possessed much plausibility , that
the institution of property was not so old as
the existence of mankind . Modern jurisprudence ,
accepting all their dogmas without reservation ,
went far beyond them in the eager curiosity with
which it dwelt on the supposed state of Nature .
Since then it had received the position that the
earth and its fruits were once res nullius , and

since its peculiar view of Nature led it to assume

without hesitation that the human race had
actually practised the Occupancy of res nullius
long before the organisation of civil societies ,
the inference immediately suggested itself that
Occupancy was the process by which the " no
man's goods " of the primitive world became the
private property of individuals in the world of
history. It would be wearisome to enumerate
the jurists who have subscribed to this theory in
one shape or another, and it is the less necessary
to attempt it because Blackstone , who is always
a faithful index of the average opinions of his
day, has summed them up in his 2nd book and
Ist chapter.
" The earth," he writes, " and all things therein
were the general property of mankind from the
immediate gift of the Creator . Not that the
224 EARLY HISTORY OF PROPERTY [CHAP. VIII

communion of goods seems ever to have been

applicable, even in the earliest ages , to aught but
the substance of the thing ; nor could be extended
to the use of it. For, by the law of nature and
reason, he who first began to use it acquired
therein a kind of transient property that lasted
so long as he was using it, and no longer ; or to
speak with greater precision , the right of possession
continued forthe same time only that the act of pos-
session lasted . Thus the ground was in common,

and no part was the permanent property of

any man in particular ; yet whoever was in the
occupation of any determined spot of it , for rest,
for shade, or the like, acquired for the time a sort
of ownership, from which it would have been
unjust and contrary to the law of nature to have
driven him by force , but the instant that he quitted
the use or occupation of it, another might seize
it without injustice ." He then proceeds to argue
that " when mankind increased in number, it
became necessary to entertain conceptions of more
permanent dominion, and to appropriate to in-
dividuals not the immediate use only , but the very
substance of the thing to be used ."
Some ambiguities of expression in this passage
lead to the suspicion that Blackstone did not
quite understand the meaning of the proposition
which he found in his authorities, that property
in the earth's surface was first acquired, under
the law of Nature, by the occupant ; but the
limitation which designedly or through misappre-
hension he has imposed on the theory brings it
into a form which it has not infrequently assumed .
Many writers more famous than Blackstone for
CHAP. VIII] BLACKSTONE'S THEORY 225

precision of language have laid down that , in the

beginning of things , Occupancy first gave a right
against the world to an exclusive but temporary
enjoyment, and that afterwards this right, while
it remained exclusive , became perpetual . Their
object in so stating their theory was to reconcile
the doctrine that in the state of Nature res nullius

became property through Occupancy, with the

inference which they drew from the Scriptural
history that the Patriarchs did not at first per-
manently appropriate the soil which had been
grazed over by their flocks and herds.
The only criticism which could be directly
applied to the theory of Blackstone would consist
in inquiring whether the circumstances which
make up his picture of a primitive society are
more or less probable than other incidents which

could be imagined with equal readiness . Pur-

suing this method of examination , we might fairly
ask whether the man who had occupied ( Blackstone
evidently uses this word with its ordinary English
meaning) a particular spot of ground for rest or
shade would be permitted to retain it without
disturbance . The chances surely are that his right
to possession would be exactly co -extensive with
his power to keep it, and that he would be con-
stantly liable to disturbance by the first comer
who coveted the spot and thought himself strong
enough to drive away the possessor. But the
truth is that all such cavil at these positions is
perfectly idle from the very baselessness of the
positions themselves . What mankind did in the
primitive state may not be a hopeless subject of
inquiry, but of their motives for doing it it is
15
226 EARLY HISTORY OF PROPERTY [CHAP. VIII

impossible to know anything . These sketches of

the plight of human beings in the first ages of the
world are effected by first supposing mankind to
be divested of a great part of the circumstances
by which they are now surrounded , and by then
assuming that , in the condition thus imagined ,
they would preserve the same sentiments and
prejudices by which they are now actuated, —
although, in fact, these sentiments may have been
created and engendered by those very circum-
stances of which, by the hypothesis , they are to
be stripped .
There is an aphorism of Savigny which has
been sometimes thought to countenance a view
of the origin of property somewhat similar to the
theories epitomised by Blackstone. The great
German jurist has laid down that all property is
founded on Adverse Possession ripened by Pre-
scription. It is only with respect to Roman law
that Savigny makes this statement , and before
it can fully be appreciated much labour must be
expended in explaining and defining the expres-
sions employed. His meaning will , however, be
indicated with sufficient accuracy if we consider
him to assert that, how far soever we carry our
inquiry into the ideas of property received among
the Romans , however closely we approach in
tracing them to the infancy of law, we can get no
farther than a conception of ownership involving
the three elements in the canon- Possession , Ad-

verseness of Possession, that is, a holding not

permissive or subordinate, but exclusive against
the world, and Prescription, or a period of time
during which the Adverse Possession has unin-
CHAP. VIII] APHORISM OF SAVIGNY 227

terruptedly continued . It is exceedingly probable

that this maxim might be enunciated with more
generality than was allowed to it by its author ,
and that no sound or safe conclusion can be looked

for from investigations into any system of laws

which are pushed farther back than the point at
which these combined ideas constitute the notion

of proprietary right . Meantime, so far from

bearing out the popular theory of the origin of
property, Savigny's canon is particularly valuable
as directing our attention to its weakest point .
In the view of Blackstone and those whom he
follows, it was the mode of assuming the exclusive
enjoyment which mysteriously affected the minds
of the fathers of our race . But the mystery does
not reside here . It is not wonderful that property
began in adverse possession . It is not surprising
that the first proprietor should have been the
strong man armed who kept his goods in peace .
But why it was that lapse of time created a senti-
ment of respect for his possession -which is the
exact source of the universal reverence of mankind

for that which has for a long period de facto existed

-are questions really deserving the profoundest
examination , but lying far beyond the boundary
of our present inquiries .
Before pointing out the quarter in which we
may hope to glean some information , scanty and
uncertain at best, concerning the early history of
proprietary right , I venture to state my opinion
that the popular impression in reference to the
part played by Occupancy in the first stages of
civilisation directly reverses the truth . Occupancy
is the advised assumption of physical possession ;
228 EARLY HISTORY OF PROPERTY [CHAP. VIII

and the notion that an act of this description

confers a title to " res nullius," so far from being
characteristic of very early societies, is in all
probability the growth of a refined jurisprudence
and of a settled condition of the laws. It is only
when the rights of property have gained a sanction
from long practical inviolability, and when the
vast majority of the objects of enjoyment have
been subjected to private ownership, that mere
possession is allowed to invest the first possessor
with dominion over commodities in which no prior
proprietorship has been asserted . The sentiment
in which this doctrine originated is absolutely
irreconcilable with that infrequency and uncer-
tainty of proprietary rights which distinguish the
beginnings of civilisation . Its true basis seems to
be, not an instinctive bias towards the institution
of Property, but a presumption, arising out of the
long continuance of that institution, that everything
ought to have an owner. When possession is taken
of a res nullius," that is, of an object which is
not, or has never been , reduced to dominion , the
possessor is permitted to become proprietor from
a feeling that all valuable things are naturally the
subjects of an exclusive enjoyment, and that in
the given case there is no one to invest with
the right of property except the Occupant. The
Occupant, in short , becomes the owner, because
all things are presumed to be somebody's property
and because no one can be pointed out as having
a better right than he to the proprietorship of
this particular thing.
Even were there no other objection to the
descriptions of mankind in their natural state
CHAP. VIII] OBJECTIONS TO POPULAR THEORY 229

which we have been discussing , there is one par-

ticular in which they are fatally at variance with
the authentic evidence possessed by us. It will
be observed, that the acts and motives which
these theories suppose are the acts and motives
of Individuals . It is each Individual who for
himself subscribes the Social Compact . It is some
shifting sandbank in which the grains are Indi-
vidual men, that according to the theory of Hobbes
is hardened into the social rock by the wholesome
discipline of force . It is an Individual who, in
the picture drawn by Blackstone, " is in the occu-
pation of a determined spot of ground for rest ,
for shade, or the like." The vice is one which
necessarily afflicts all the theories descended from
the Natural Law of the Romans, which differed
principally from their Civil Law in the account
which it took of Individuals , and which has ren-
dered precisely its greatest service to civilisation
in enfranchising the individual from the authority
of archaic society . But Ancient Law, it must
again be repeated , knows next to nothing of Indi-
viduals. It is concerned not with Individuals, but
with Families, not with single human beings , but
groups . Even when the law of the State has suc-
ceeded in penetrating the small circles of kindred
into which it had originally no means of penetrat-
ing, the view it takes of Individuals is curiously
different from that taken by jurisprudence in its
maturest stage . The life of each citizen is not
regarded as limited by birth and death ; it is but
a continuation of the existence of his forefathers,
and it will be prolonged in the existence of his
descendants.
 230 EARLY HISTORY OF PROPERTY (CHAP. VIII

The Roman distinction between the Law of

Persons and the Law of Things , which though
extremely convenient is entirely artificial, has
evidently done much to divert inquiry on the
subject before us from the true direction . The
lessons learned in discussing the Jus Personarum
have been forgotten where the Jus Rerum is
reached, and Property, Contract , and Delict, have
been considered as if no hints concerning their
original nature were to be gained from the facts
ascertained respecting the original condition of
Persons. The futility of this method would be
manifest if a system of pure archaic law could be
brought before us, and if the experiment could be
tried of applying to it the Roman classifications .
It would soon be seen that the separation of the
Law of Persons from that of Things has no meaning
in the infancy of the law, that the rules belonging
to the two departments are inextricably mingled
together, and that the distinctions of the later
jurists are appropriate only to the later jurispru-
dence . From what has been said in the earlier

portions of this treatise, it will be gathered that

there is a strong à priori improbability of our
obtaining any clue to the early history of property,
if we confine our notice to the proprietary rights
of individuals. It is more than likely that joint-
ownership, and not separate ownership, is the
really archaic institution , and that the forms of
property which will afford us instruction will
be those which are associated with the rights of
families and of groups of kindred. The Roman
jurisprudence will not here assist in enlightening
us, for it is exactly the Roman jurisprudence which,
CHAP. VIII] INDIAN VILLAGE COMMUNITIES 231

transformed by the theory of Natural Law, has

bequeathed to the moderns the impression that
individual ownership is the normal state of pro-
prietary right, and that ownership in common by
groups of men is only the exception to a general
rule. There is, however, one community which
will always be carefully examined by the inquirer
who is in quest of any lost institution of primeval
society. How far soever any such institution may
have undergone change among the branch of the
Indo-European family which has been settled for
ages in India, it will seldom be found to have

entirely cast aside the shell in which it was origin-

ally reared. It happens that, among the Hindoos ,
we do find a form of ownership which ought at
once to rivet our attention from its exactly fitting
in with the ideas which our studies in the Law of
Persons would lead us to entertain respecting the
original condition of property. The Village Com-
munity of India is at once an organised patriarchal
society and an assemblage of co-proprietors . The
personal relations to each other of the men who
compose it are indistinguishably confounded with

their proprietary rights, and to the attempts of

English functionaries to separate the two may be
assigned some of the most formidable miscarriages
of Anglo-Indian administration . The Village

Community is known to be of immense antiquity.

In whatever direction research has been pushed
into Indian history, general or local , it has always
found the Community in existence at the farthest
point of its progress . A great number of intelligent
and observant writers , most of whom had no theory
of any sort to support concerning its nature and
 232 EARLY HISTORY OF PROPERTY [CHAP. VIII

origin, agree in considering it the least destructible

institution of a society which never willingly sur-
renders any one of its usages to innovation.
Conquests and revolutions seem to have swept
over it without disturbing or displacing it, and
the most beneficent systems of government in
India have always been those which have recog-
nised it as the basis of administration.
The mature Roman law, and modern jurispru-
dence following in its wake, look upon co-ownership
as an exceptional and momentary condition of the
rights of property. This view is clearly indicated
in the maxim which obtains universally in Western
Europe, Nemo in communione potest invitus detineri
No one can be kept in co-proprietorship against
his will "). But in India this order of ideas
is reversed, and it may be said that separate
proprietorship is always on its way to become
proprietorship in common . The process has been
adverted to already. As soon as a son is born, he
acquires a vested interest in his father's substance ,
and on attaining years of discretion he is even , in
certain contingencies, permitted by the letter of
the law to call for a partition of the family estate.
As a fact, however, a division rarely takes place
even at the death of the father, and the property
constantly remains undivided for several genera-
tions, though every member of every generation
has a legal right to an undivided share in it.
The domain thus held in common is sometimes
administered by an elected manager, but more

generally, and in some provinces always, it is

managed by the eldest agnate, by the eldest re-
presentative of the eldest line of the stock . Such
CHAP. VIII] VILLAGE COMMUNITIES 233

an assemblage of joint proprietors, a body of

kindred holding domain in common, is the simplest
form of an Indian Village Community, but the
Community is more than a brotherhood of relatives

and more than an association of partners . It is

an organised society, and besides providing for
the management of the common fund, it seldom
fails to provide, by a complete staff of function-
aries, for internal government , for police, for the
administration of justice, and for the apportion-
ment of taxes and public duties .
The process which I have described as that
under which a Village Community is formed , may
be regarded as typical. Yet it is not to be sup-
posed that every Village Community in India drew
together in so simple a manner. Although, in the
North of India, the archives, as I am informed ,
almost invariably show that the Community was
founded by a single assemblage of blood-relations ,
they also supply information that men of alien
extraction have always, from time to time , been
engrafted on it, and a mere purchaser of a share
may generally, under certain conditions , be ad-
mitted to the brotherhood . In the South of the
Peninsula there are often Communities which
appear to have sprung not from one but from two
or more families : and there are some whose com-

position is known to be entirely artificial ; indeed ,

the occasional aggregation of men of different
castes in the same society is fatal to the hypothesis
of a common descent . Yet in all these brother-
hoods either the tradition is preserved, or the

assumption made , of an original common parent-

age. Mountstuart Elphinstone, who writes more
234 EARLY HISTORY OF PROPERTY [CHAP, VIII

particularly of the Southern Village Communities,

observes of them (History of India, p . 71 , 1905 edn. ) :
" The popular notion is that the Village landholders
are all descended from one or more individuals who
settled the Village ; and that the only exceptions
are formed by persons who have derived their
rights by purchase or otherwise from members of

the original stock. The supposition is confirmed

by the fact that, to this day, there are only single
families of landholders in small villages and not
many in large ones ; but each has branched out
into so many members that it is not uncommon
for the whole agricultural labour to be done by the
landholders, without the aid either of tenants or
of labourers . The rights of the landholders are

theirs collectively , and, though they almost always

have a more or less perfect partition of them, they
never have an entire separation . A landholder,
for instance, can sell or mortgage his rights ; but
he must first have the consent of the Village, and
the purchaser steps exactly into his place and
takes up all his obligations . If a family becomes
extinct, its share returns to the common stock. "
Some considerations which have been offered
in the fifth chapter of this volume will assist the
reader, I trust, in appreciating the significance
of Elphinstone's language. No institution of the
primitive world is likely to have been preserved
to our day, unless it has acquired an elasticity
foreign to its original nature through some vivify-
ing legal fiction . The Village Community then is
not necessarily an assemblage of blood-relations,
but it is either such an assemblage or a body of
co-proprietors formed on the model of an asso-
CHAP. VIII] TYPE OF THE COMMUNITY 235

ciation of kinsmen . The type with which it

should be compared is evidently not the Roman
Family, but the Roman Gens or House . The
Gens was also a group on the model of the family ;
it was the family extended by a variety of fictions
of which the exact nature was lost in antiquity .
In historical times , its leading characteristics
were the very two which Elphinstone remarks
in the Village Community . There was always
the assumption of a common origin, an assumption
sometimes notoriously at variance with fact :
and, to repeat the historian's words , " if a family
became extinct , its share returned to the common
stock ." In old Roman law, unclaimed inherit-
ances escheated to the Gentiles . It is further

suspected by all who have examined their history

that the Communities, like the Gentes, have
been very generally adulterated by the admission
of strangers, but the exact mode of absorption
cannot now be ascertained . At present, they
are recruited , as Elphinstone tells us, by the
admission of purchasers , with the consent of the
brotherhood . The acquisition of the adopted
member is, however, of the nature of a universal
succession ; together with the share he has
bought, he succeeds to the liabilities which the
vendor had incurred towards the aggregate group .

He is an Emptor Familiæ, and inherits the legal

clothing of the person whose place he begins to
fill . The consent of the whole brotherhood re-

quired for his admission may remind us of the

consent which the Comitia Curiata , the Parliament
of that larger brotherhood of self-styled kinsmen ,
the ancient Roman commonwealth, so strenuously
236 EARLY HISTORY OF PROPERTY [CHAP. VIII

insisted on as essential to the legalisation of an

Adoption or the confirmation of a Will.
The tokens of an extreme antiquity are dis-
coverable in almost every single feature of the
Indian Village Communities . We have so many
independent reasons for suspecting that the in-
fancy of law is distinguished by the prevalence
of co-ownership, by the intermixture of personal
with proprietary rights, and by the confusion
of public with private duties, that we should be
justified in deducing many important conclusions
from our observation of these proprietary brother-
hoods , even if no similarly compounded societies
could be detected in any other part of the world.
It happens, however, that much earnest curiosity
has been very recently attracted to a similar set
of phenomena in those parts of Europe which
have been most slightly affected by the feudal
transformation of property, and which in many
important particulars have as close an affinity
with the Eastern as with the Western world .
The researches of M. de Haxthausen, M. Tengo-
borski, and others, have shown us that the Russian

villages are not fortuitous assemblages of men,

nor are they unions founded on contract ; they
are naturally organised communities like those of
India . It is true that these villages are always

in theory the patrimony of some noble proprietor,

and the peasants have within historical times
been converted into the predial, and to a great
extent into the personal, serfs of the seignior .
But the pressure of this superior ownership has
never crushed the ancient organisation of the
village, and it is probable that the enactment
CHAP. VIII] RUSSIAN VILLAGES 237

of the Czar of Russia, who is supposed to have

introduced serfdom, was really intended to prevent
the peasants from abandoning that co-operation
without which the old social order could not
long be maintained . In the assumption of an
agnatic connection between the villagers , in the
blending of personal rights with privileges of
ownership, and in a variety of spontaneous pro-
visions for internal administration , the Russian
village appears to be a nearly exact repetition of
the Indian Community ; but there is one im-
portant difference which we note with the greatest
interest . The co-owners of an Indian village ,
though their property is blended, have their

rights distinct, and this separation of rights is

complete and continues indefinitely. The sever-
ance of rights is also theoretically complete in a
Russian village, but there it is only temporary.
After the expiration of a given, but not in all
cases of the same, period , separate ownerships
are extinguished, the land of the village is thrown
into a mass, and then it is redistributed among
the families composing the community, according
to their number. This repartition having been
effected, the rights of families and of individuals
are again allowed to branch out into various
lines, which they continue to follow till another
period of division comes round . An even more
curious variation from this type of ownership

occurs in some of those countries which long

formed a debatable land between the Turkish
Empire and the possessions of the House of
Austria. In Servia, in Croatia, and the Austrian
Sclavonia, the villages are also brotherhoods of
238 EARLY HISTORY OF PROPERTY (CHAP. VIII

persons who are at once co-owners and kinsmen ;

but there the internal arrangements of the com-
munity differ from those adverted to in the last
two examples . The substance of the common
property is in this case neither divided in practice
nor considered in theory as divisible, but the
entire land is cultivated by the combined labour
of all the villagers, and the produce is annually
distributed among the households, sometimes
according to their supposed wants, sometimes
according to rules which give to particular persons
a fixed share of the usufruct. All these practices
are traced by the jurists of the East of Europe
to a principle which is asserted to be found in
the earliest Sclavonian laws, the principle that
the property of families cannot be divided for a
perpetuity.
The great interest of these phenomena in an
inquiry like the present arises from the light they
throw on the development of distinct proprietary
rights inside the groups by which property seems
to have been originally held . We have the
strongest reason for thinking that property once
belonged not to individuals nor even to isolated
families, but to larger societies composed on the
patriarchal model ; but the mode of transition
from ancient to modern ownerships, obscure at
best, would have been infinitely obscurer if
several distinguishable forms of Village Com-
munities had not been discovered and examined.
It is worth while to attend to the varieties of
internal arrangement within the patriarchal groups
which are, or were till recently, observable among
races of Indo- European blood . The chiefs of the
CHAP. VIII] VARIETIES OF THE COMMUNITY 239

ruder Highland clans used, it is said, to dole out

food to the heads of the households under their

jurisdiction at the very shortest intervals , and

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

sent distinct stages in a process of transmutation

which has been everywhere accomplished in the
same manner. But, though the evidence does not
warrant our going so far as this, it renders less
presumptuous the conjecture that private pro-
perty, in the shape in which we know it, was
chiefly formed by the gradual disentanglement
of the separate rights of individuals from the
blended rights of a community. Our studies in
the Law of Persons seemed to show us the Family
expanding into the Agnatic group of kinsmen,
240 EARLY HISTORY OF PROPERTY [CHAP. VIII

then the Agnatic group dissolving into separate

households ; lastly, the household supplanted by
the individual ; and it is now suggested that each
step in the change corresponds to an analogous
alteration in the nature of Ownership . If there
be any truth in the suggestion, it is to be observed
that it materially affects the problem which
theorists on the origin of Property have generally
proposed to themselves . The question—perhaps
an insoluble one-which they have mostly agitated
is, what were the motives which first induced
men to respect each other's possessions ? It may
still be put, without much hope of finding an
answer to it, in the form of an inquiry into the
reasons which led one composite group to keep
aloof from the domain of another. But, if it be
true that far the most important passage in the
history of Private Property is its gradual separa-
tion from the co-ownership of kinsmen, then the
great point of inquiry is identical with that which
lies on the threshold of all historical law-what

were the motives which originally prompted

men to hold together in the family union ? To
such a question, Jurisprudence, unassisted by other
sciences, is not competent to give a reply. The
fact can only be noted.
The undivided state of property in ancient
societies is consistent with a peculiar sharpness
of division, which shows itself as soon as any
single share is completely separated from the
patrimony of the group . This phenomenon
springs, doubtless , from the circumstance that
the property is supposed to become the domain

of a new group, so that any dealing with it, in

CHAP. VIII] ANCIENT DIFFICULTIES OF ALIENATION 241

its divided state, is a transaction between two

highly complex bodies. I have already compared
Ancient Law to Modern International Law, in
respect of the size and complexity of the corporate
associations, whose rights and duties it settles.
As the contracts and conveyances known to
ancient law are contracts and conveyances to

which not single individuals , but organised com-

panies of men, are parties, they are in the highest
degree ceremonious ; they require a variety of
symbolical acts and words intended to impress
the business on the memory of all who take
part in it ; and they demand the presence of
an inordinate number of witnesses . From these

peculiarities, and others allied to them , springs

the universally unmalleable character of the
ancient forms of property. Sometimes the patri-
mony of the family is absolutely inalienable , as
was the case with the Sclavonians, and still oftener,
though alienations may not be entirely illegiti-
mate, they are virtually impracticable, as among
most of the Germanic tribes , from the necessity
of having the consent of a large number of persons
to the transfer . Where these impediments do
not exist , or can be surmounted, the act of con-
veyance itself is generally burdened with a perfect
load of ceremony, in which not one iota can be
safely neglected. Ancient law uniformly refuses to
dispense with a single gesture, however grotesque ;
with a single syllable , however its meaning may
have been forgotten ; with a single witness , how-
ever superfluous may be his testimony. The
entire solemnities must be scrupulously completed
by persons legally entitled to take part in it ,
16
 242 EARLY HISTORY OF PROPERTY [CHAP. VIII

or else the conveyance is null, and the seller is

re-established in the rights of which he had vainly
attempted to divest himself.
These various obstacles to the free circulation

of the objects of use and enjoyment, begin of

course to make themselves felt as soon as society
has acquired even a slight degree of activity, and
the expedients by which advancing communities
endeavour to overcome them form the staple of
the history of Property . Of such expedients there
is one which takes precedence of the rest from
its antiquity and universality. The idea seems
to have spontaneously suggested itself to a great
number of early societies, to classify property into
kinds . One kind or sort of property is placed on
a lower footing of dignity than the others, but at
the same time is relieved from the fetters which

antiquity has imposed on them. Subsequently,

the superior convenience of the rules governing
the transfer and descent of the lower order of

property becomes generally recognised , and by a

gradual course of innovation the plasticity of the
less dignified class of valuable objects is communi-
cated to the classes which stand conventionally

higher. The history of Roman Property Law is

the history of the assimilation of Res Mancipi to
Res Nec Mancipi . The history of Property on the
European continent is the history of the subver-
sion of the feudalised law of land by the Romanised
law of movables ; and though the history of
ownership in England is not nearly completed , it
is visibly the law of personalty which threatens
to absorb and annihilate the law of realty.
The only natural classification of the objects
CHAP. VIII] ANCIENT KINDS OF PROPERTY 243

of enjoyment, the only classification which corre-

sponds with an essential difference in the subject-
matter, is that which divides them into Movables
and Immovables . Familiar as is this classifica-

tion to jurisprudence , it was very slowly developed

by Roman law, from which we inherit it, and was
only finally adopted by it in its latest stage . The
classifications of Ancient Law have sometimes a

superficial resemblance to this . They occasionally

divide property into categories , and place im-
movables in one of them ; but then it is found
that they either class along with immovables a
number of objects which have no sort of relation
with them , or else divorce them from various
rights to which they have a close affinity . Thus,
the Res Mancipi of Roman Law included not only
land but slaves, horses, and oxen . Scottish law
ranks with land a certain class of securities , and
Hindoo law associates it with slaves . English law ,
on the other hand, parts leases of land for years
from other interests in the soil, and joins them
to personalty under the name of chattels real.
Moreover, the classifications of Ancient Law are
classifications implying superiority and inferiority ;
while the distinction between movables and im-
movables, so long at least as it was confined to
Roman jurisprudence , carried with it no suggestion
whatever of a difference in dignity. The Res

Mancipi, however, did certainly at first enjoy a

precedence over the Res Nec Mancipi, as did
heritable property in Scotland, and realty in
England, over the personalty to which they were
opposed . The lawyers of all systems have spared
no pains in striving to refer these classifications to
244 EARLY HISTORY OF PROPERTY [CHAP. VIII

some intelligible principle ; but the reasons of the

severance must ever be vainly sought for in the
philosophy of law : they belong not to its philo-
sophy, but to its history . The explanation which
appears to cover the greatest number of instances

is, that the objects of enjoyment honoured above

the rest were the forms of property known first
and earliest to each particular community, and
dignified therefore emphatically with the designa-
tion of Property. On the other hand , the articles
not enumerated among the favoured objects seem
to have been placed on a lower standing, because
the knowledge of their value was posterior to the
epoch at which the catalogue of superior property
was settled . They were at first unknown, rare ,
limited in their uses, or else regarded as mere
appendages to the privileged objects . Thus,
though the Roman Res Mancipi included a num-
ber of movable articles of great value , still the
most costly jewels were never allowed to take rank
as Res Mancipi, because they were unknown to
the early Romans . In the same way chattels real
in England are said to have been degraded to the
footing of personalty, from the infrequency and
valuelessness of such estates under the feudal

land-law. But the grand point of interest is the

continued degradation of these commodities when
their importance had increased and their number
had multiplied . Why were they not successively
included among the favoured objects of enjoy-
ment ? One reason is found in the stubbornness
with which Ancient Law adheres to its classifica-
tions. It is a characteristic both of uneducated

minds and of early societies, that they are little

CHAP. VIII] DEGRADATION OF INFERIOR PROPERTY 245

able to conceive a general rule apart from the

particular applications of it with which they are
practically familiar. They cannot dissociate a
general term or maxim from the special examples
which meet them in daily experience ; and in this
way the designation covering the best-known forms
of property is denied to articles which exactly
resemble them in being objects of enjoyment and
subjects of right. But to these influences, which
exert peculiar force in a subject-matter so stable
as that of law, are afterwards added others more
consistent with progress in enlightenment and in
the conceptions of general expediency . Courts and
lawyers become at last alive to the inconvenience
of the embarrassing formalities required for the
transfer, recovery, or devolution of the favoured
commodities , and grow unwilling to fetter the
newer descriptions of property with the technical
trammels which characterised the infancy of law.
Hence arises a disposition to keep these last on a
lower grade in the arrangements of Jurisprudence ,
and to permit their transfer by simpler processes
than those which, in archaic conveyances, serve
as stumbling-blocks to good faith and stepping-
stones to fraud. We are perhaps in some danger
of under-rating the inconveniences of the ancient
modes of transfer . Our instruments of conveyance

are written, so that their language , well pondered

by the professional draftsman, is rarely defective
in accuracy. But an ancient conveyance was not
written, but acted . Gestures and words took the
place of written technical phraseology, and any
formula mispronounced , or symbolical act omitted,
would have vitiated the proceeding as fatally as a
246 EARLY HISTORY OF PROPERTY [CHAP. VIII

material mistake in stating the uses or setting out

the remainders would , two hundred years ago,

have vitiated an English deed . Indeed , the mis-

chiefs of the archaic ceremonial are even thus only
half stated . So long as elaborate conveyances ,
written or acted , are required for the alienation
of land alone, the chances of mistake are not
considerable in the transfer of a description of
property which is seldom got rid of with much
precipitation . But the higher class of property
in the ancient world comprised not only land but
several of the commonest and several of the most
valuable movables. When once the wheels of
society had begun to move quickly, there must
have been immense inconvenience in demanding
a highly intricate form of transfer for a horse or
an ox, or for the most costly chattel of the old
world-the Slave . Such commodities must have
been constantly and even ordinarily conveyed
with incomplete forms, and held, therefore, under
imperfect titles.
The Res Mancipi of old Roman law were,
land ,-in historical times , land on Italian soil,-
slaves and beasts of burden , such as horses and
oxen . It is impossible to doubt that the objects
which make up the class are the instruments of
agricultural labour, the commodities of first con-
sequence to a primitive people. Such commodities
were at first, I imagine, called emphatically Things
or Property, and the mode of conveyance by which
they were transferred was called a Mancipium or
Mancipation ; but it was not probably till much
later that they received the distinctive appellation
of Res Mancipi , " Things which require a Mancipa-
CHAP. VIII] RES NEC MANCIPI 247

tion ." By their side there may have existed or

grown up a class of objects, for which it was not
worth while to insist upon the full ceremony of

Mancipation . If would be enough if, in trans-

ferring these last from owner to owner, a part only
of the ordinary formalities were proceeded with,
namely , that actual delivery, physical transfer, or
tradition, which is the most obvious index of a
change of proprietorship . Such commodities were
the Res Nec Mancipi of the ancient jurisprudence ,
" things which did not require a Mancipation ,"
little prized probably at first , and not often passed
from one group of proprietors to another. While ,
however, the list of the Res Mancipi was irrevoc-
ably closed , that of the Res Nec Mancipi admitted
of indefinite expansion ; and hence every fresh
conquest of man over material nature added an

item to the Res Nec Mancipi , or effected an im-

provement in those already recognised . Insen-
sibly, therefore , they mounted to an equality with
the Res Mancipi, and the impression of an intrinsic
inferiority being thus dissipated, men began to
observe the manifold advantages of the simple
formality which accompanied their transfer over
the more intricate and more venerable ceremonial .

Two of the agents of legal amelioration , Fictions

and Equity, were assiduously employed by the
Roman lawyers to give the practical effects of a
Mancipation to a Tradition ; and, though Roman
legislators long shrank from enacting that the
right of property in a Res Mancipi should be
immediately transferred by bare delivery of the
article, yet even this step was at last ventured
upon by Justinian , in whose jurisprudence the
248 EARLY HISTORY OF PROPERTY [CHAP. VIII

difference between Res Mancipi and Res Nec

Mancipi disappears, and Tradition or Delivery
becomes the one great conveyance known to the
law. The marked preference which the Roman
lawyers very early gave to Tradition caused them
to assign it a place in their theory which has helped
to blind their modern disciples to its true history.
It was classed among the " natural " modes of
acquisition, both because it was generally practised
among the Italian tribes, and because it was a
process which attained its object by the simplest
mechanism . If the expressions of the jurisconsults
be pressed, they undoubtedly imply that Tradition ,
which belongs to the Law Natural, is more ancient
than Mancipation , which is an institution of Civil
Society ; and this , I need not say, is the exact
reverse of the truth .

The distinction between Res Mancipi and Res

Nec Mancipi is the type of a class of distinctions
to which civilisation is much indebted, distinctions
which run through the whole mass of commodities,
placing a few of them in a class by themselves,
and relegating the others to a lower category .
The inferior kinds of property are first, from dis-
dain and disregard , released from the perplexed
ceremonies in which primitive law delights, and
then afterwards, in another state of intellectual
progress, the simple methods of transfer and re-
covery which have been allowed to come into
use serve as a model which condemns by its con-
venience and simplicity the cumbrous solemnities
inherited from ancient days.But in some societies ,
the trammels in which Property is tied up are
much too complicated and stringent to be relaxed
CHAP. VIII] OTHER ANCIENT CLASSIFICATIONS 249

in so easy a manner. Whenever male children

have been born to a Hindoo , the law of India, as
I have stated , gives them all an interest in his
property , and makes their consent a necessary
condition of its alienation . In the same spirit,
the general usage of the old Germanic peoples - it
is remarkable that the Anglo-Saxon customs seem
to have been an exception-forbade alienations
without the consent of the male children ; and
the primitive law of the Sclavonians even pro-
hibited them altogether . It is evident that such
impediments as these cannot be overcome by a
distinction between kinds of property, inasmuch
as the difficulty extends to commodities of all
sorts ; and accordingly, Ancient Law, when once
launched on a course of improvement , encounters
them with a distinction of another character, a
distinction classifying property, not according to
its nature but according to its origin. In India ,
where there are traces of both systems of classi-
fication, the one which we are considering is
exemplified in the difference which Hindoo law
establishes between Inheritances and Acquisitions .
The inherited property of the father is shared by
the children as soon as they are born ; but accord-
ing to the custom of most provinces, the acquisi-
tions made by him during his lifetime are wholly
his own, and can be transferred by him at pleasure .
A similar distinction was not unknown to Roman
Law, in which the earliest innovation on the
Parental Powers took the form of a permission
given to the son to keep for himself whatever he
might have acquired in military service . But the
most extensive use ever made of this mode of
250 EARLY HISTORY OF PROPERTY [CHAP. VIII

classification appears to have been among the

Germans. I have repeatedly stated that the allod,
though not inalienable, was commonly transferable
with the greatest difficulty ; and moreover, it
descended exclusively to the agnatic kindred .
Hence an extraordinary variety of distinctions
came to be recognised, all intended to diminish the
inconveniences inseparable from allodial property.

The wehrgeld, for example , or composition for the

homicide of a relative, which occupies so large a

space in German jurisprudence, formed no part of

the family domain, and descended according to
rules of succession altogether different . Similarly,

the reipus, or fine leviable on the re-marriage of a

widow, did not enter into the allod of the person
to whom it was paid, and followed a line of devo
lution in which the privileges of the agnates were
neglected . The law, too, as among the Hindoos,
distinguished the Acquisitions of the chief of the
household from his Inherited property, and per-
mitted him to deal with them under much more
liberal conditions . Classifications of the other sort
were also admitted, and the familiar distinction
drawn between land and movables ; but movable
property was divided into several subordinate
categories , to each of which different rules applied.
This exuberance of classification , which may strike
us as strange in so rude a people as the German
conquerors of the Empire, is doubtless to be ex-
plained by the presence in their systems of a
considerable element of Roman Law, absorbed by
them during their long sojourn on the confines of
the Roman dominion. It is not difficult to trace

a great number of the rules governing the transfer

CHAP. VIII] INHERITANCES AND ACQUISITIONS 251

and devolution of the commodities which lay out-

side the allod, to their source in Roman jurispru-
dence, from which they were probably borrowed
at widely distant epochs, and in fragmentary
importations. How far the obstacles to the free
circulation of property were surmounted by such
contrivances, we have not the means even of
conjecturing, for the distinctions adverted to have
no modern history. As I before explained, the
allodial form of property was entirely lost in the
feudal, and when the consolidation of feudalism
was once completed , there was practically but one
distinction left standing of all those which had
been known to the western world- the distinction
between land and goods, immovables and mov-
ables . Externally this distinction was the same
with that which Roman law had finally accepted ,

but the law of the middle ages differed from that

of Rome in distinctly considering immovable
property to be more dignified than movable.
Yet this one sample is enough to show the im-
portance of the class of expedients to which it
belongs . In all the countries governed by systems
based on the French codes, that is, through much
the greatest part of the Continent of Europe, the
law of movables, which was always Roman law,
has superseded and annulled the feudal law of
land . England is the only country of importance
in which this transmutation , though it has gone
some way, is not nearly accomplished . Our own,
too, it may be added, is the only considerable
European country in which the separation of
movables from immovables has been somewhat

disturbed by the same influences which caused

252 EARLY HISTORY OF PROPERTY [CHAP. VIII

the ancient classifications to depart from the only

one which is countenanced by nature. In the
main, the English distinction has been between
land and goods ; but a certain class of goods have
gone as heir-looms with the land, and a certain
description of interests in land have from historical

causes been ranked with personalty. This is not

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

I proceed to notice one or two more con-

trivances by which the ancient trammels of
proprietary right were more or less successfully
relaxed , premising that the scheme of this treatise
only permits me to mention those which are of

great antiquity . On one of them in particular

it is necessary to dwell for a moment or two ,
because persons unacquainted with the early
history of law will not be easily persuaded that
a principle, of which modern jurisprudence has
very slowly and with the greatest difficulty
obtained the recognition, was really familiar to
the very infancy of legal science . There is no
principle in all law which the moderns, in spite
of its beneficial character, have been so loath to
adopt and to carry to its legitimate consequences
as that which was known to the Romans as

Usucapion, and which has descended to modern

jurisprudence under the name of Prescription .
It was a positive rule of the oldest Roman law,
a rule older than the Twelve Tables, that com-
modities which had been uninterruptedly pos-
sessed for a certain period became the property of
CHAP. VIII] PRESCRIPTION 253

the possessor. The period of possession was

exceedingly short - one or two years , according to
the nature of the commodities -and in historical

times Usucapion was only allowed to operate

when possession had commenced in a particular
way ; but I think it likely that at a less advanced
epoch possession was converted into ownership
under conditions even less severe than we read

of in our authorities . As I have said before ,

I am far from asserting that the respect of men
for de facto possession is a phenomenon which
jurisprudence can account for by itself, but it is
very necessary to remark that primitive societies ,
in adopting the principle of Usucapion , were not
beset with any of the speculative doubts and
hesitations which have impeded its reception
among the moderns . Prescriptions were viewed
by the modern lawyers , first with repugnance ,
afterwards with reluctant approval . In several
countries , including our own, legislation long
declined to advance beyond the rude device of
barring all actions based on a wrong whch had
been suffered earlier than a fixed point of time
in the past , generally the first year of some
preceding reign ; nor was it till the middle ages
had finally closed , and James the First had
ascended the throne of England , that we obtained
a true statute of limitation of a very imperfect
kind . This tardiness in copying one of the most
famous chapters of Roman law, which was no
doubt constantly read by the majority of European
lawyers , the modern world owes to the influence
of the Canon Law. The ecclesiastical customs

out of which the Canon Law grew, concerned as

254 EARLY HISTORY OF PROPERTY [CHAP. VIII

they were with sacred or quasi -sacred interests,

very naturally regarded the privileges which they
conferred as incapable of being lost through disuse
however prolonged ; and in accordance with this
view, the spiritual jurisprudence , when afterwards
consolidated, was distinguished by a marked
leaning against Prescriptions . It was the fate
of the Canon Law, when held up by the clerical
lawyers as a pattern to secular legislation , to have
a peculiar influence on first principles . It gave
to the bodies of custom which were formed
throughout Europe far fewer express rules than
did the Roman law, but then it seems to have
communicated a bias to professional opinion on
a surprising number of fundamental points, and
the tendencies thus produced progressively gained
strength as each system was developed . One of
the dispositions it produced was a disrelish for
Prescriptions ; but I do not know that this pre-
judice would have operated as powerfully as it
has done, if it had not fallen in with the doctrine
of the scholastic jurists of the realist sect, who
taught that, whatever turn actual legislation
might take , a right, how long soever neglected,
was in point of fact indestructible . The remains
of this state of feeling still exist . Wherever the
philosophy of law is earnestly discussed , questions
respecting the speculative basis of Prescription
are always hotly disputed ; and it is still a point
of the greatest interest in France and Germany,
whether a person who has been out of possession
for a series of years is deprived of his ownership
as a penalty for his neglect , or loses it through the
summary interposition of the law in its desire
CHAP. VIII] ROMAN USUCAPION 255

to have a finis litium . But no such scruples

troubled the mind of early Roman society . Their
ancient usages directly took away the ownership
of everybody who had been out of possession ,
under certain circumstances, during one or two
years . What was the exact tenor of the rule of

Usucapion in its earliest shape , it is not easy to

say ; but, taken with the limitations which we
find attending it in the books , it was a most useful
security against the mischiefs of a too cumbrous
system of conveyance. In order to have the

benefit of Usucapion , it was necessary that the

adverse possession should have begun in good
faith , that is, with belief on the part of the possessor
that he was lawfully acquiring the property,
and it was further required that the commodity
should have been transferred to him by some
mode of alienation which, however unequal to
conferring a complete title in the particular case ,
was at least recognised by the law. In the case
therefore of a Mancipation , however slovenly the
performance might have been , yet if it had been
carried so far as to involve a Tradition or Delivery,
the vice of the title would be cured by Usucapion

in two years at most . I know nothing in the

practice of the Romans which testifies so strongly
to their legal genius as the use which they made
of Usucapion . The difficulties which beset them
were nearly the same with those which embarrassed
and still embarrass the lawyers of England .
Owing to the complexity of their system, which
as yet they had neither the courage nor the power
to reconstruct , actual right was constantly getting
divorced from technical right , the equitable
256 EARLY HISTORY OF PROPERTY [CHAP. VIII

ownership from the legal . But Usucapion , as

manipulated by the jurisconsults , supplied a
self-acting machinery, by which the defects of
titles to property were always in course of being
cured, and by which the ownerships that were
temporarily separated were again rapidly cemented
together with the briefest possible delay. Usu-
capion did not lose its advantages till the reforms
of Justinian . But as soon as law and equity
had been completely fused , and when Mancipation
ceased to be the Roman conveyance , there was
no further necessity for the ancient contrivance ,
and Usucapion, with its periods of time consider-
ably lengthened , became the Prescription which
has at length been adopted by nearly all systems
of modern law.

I pass by with brief mention another expedient

having the same object with the last , which,
though it did not immediately make its appearance
in English legal history, was of immemorial
antiquity in Roman law ; such indeed is its
apparent age that some German civilians , not
sufficiently aware of the light thrown on the
subject by the analogies of English law, have
thought it even older than the Mancipation . I
speak of the Cessio in Jure, a collusive recovery,
in a Court of Law, of property sought to be
conveyed . The plaintiff claimed the subject of
this proceeding with the ordinary forms of a
litigation ; the defendant made default ; and the
commodity was of course adjudged to the plaintiff .
I need scarcely remind the English lawyer that
this expedient suggested itself to our forefathers,
and produced those famous Fines and Recoveries
CHAP. VIII] PROPERTY AND POSSESSION 257

which did so much to undo the harshest trammels

of the feudal land-law. The Roman and English

contrivances have very much in common and
illustrate each other most instructively, but there
is this difference between them, that the object
of the English lawyers was to remove complications
already introduced into the title , while the Roman
jurisconsults sought to prevent them by sub-
stituting a mode of transfer necessarily unim-
peachable for one which too often miscarried .
The device is in fact one which suggests itself
as soon as Courts of Law are in steady operation ,
but are nevertheless still under the empire of
primitive notions. In an advanced state of legal
opinion, tribunals regard collusive litigation as
an abuse of their procedure ; but there has always
been a time when, if their forms were scrupulously
complied with, they never dreamed of looking
further .
The influence of Courts of Law and of their

procedure upon Property has been most extensive ,

but the subject is too large for the dimensions of
this treatise, and would carry us further down
the course of legal history than is consistent with
its scheme . It is desirable, however, to mention,
that to this influence we must attribute the im-

portance of the distinction between Property and

Possession - not , indeed, the distinction itself,
which (in the language of an eminent English
civilian) is the same thing as the distinction
between the legal right to act upon a thing and
the physical power to do so-but the extraordinary
importance which the distinction has obtained
.
in the philosophy of law. Few educated persons
エク
 EARL
Y
HISTO
RY ERTY
258 OF PROP [CHAP . VIII

are so little versed in legal literature as not to

have heard that the language of the Roman juris-
consults on the subject of Possession long occa-
sioned the greatest possible perplexity, and that
the genius of Savigny is supposed to have chiefly
proved itself by the solution which he discovered
for the enigma . Possession , in fact , when em-
ployed by the Roman lawyers, appears to have
contracted a shade of meaning not easily accounted
for. The word, as appears from its etymology,
must have originally denoted physical contact
or physical contact resumable at pleasure ; but
as actually used, without any qualifying epithet,
it signifies not simply physical detention , but
physical detention coupled with the intention to
hold the thing detained as one's own . Savigny,
following Niebuhr, perceived that for this anomaly
there could only be a historical origin . He
pointed out that the Patrician burghers of Rome,
who had become tenants of the greatest part
of the public domain at nominal rents, were, in
the view of the old Roman law, mere possessors ,

but then they were possessors intending to keep

their land against all comers. They, in truth ,
put forward a claim almost identical with that
which has recently been advanced in England
by the lessees of Church lands . Admitting that
in theory they were the tenants-at-will of the
State, they contended that time and undisturbed

enjoyment had ripened their holding into a species

of ownership , and that it would be unjust to eject
them for the purpose of redistributing the domain .
The association of this claim with the Patrician

tenancies , permanently influenced the sense of

CHAP. VIII] PROPERTY AND POSSESSION 259
66
possession. " Meanwhile the only legal remedies
of which the tenants could avail themselves,
if ejected or threatened with disturbance, were
the Possessory Interdicts, summary processes of
Roman law which were either expressly devised
by the Prætor for their protection, or else, ac-
cording to another theory, had in olden times
been employed for the provisional maintenance of
possessions pending the settlement of questions of
legal right. It came, therefore, to be understood
that everybody who possessed property as his
own had the power of demanding the Interdicts ,
and, by a system of highly artificial pleading,
the Interdictal process was moulded into a shape
fitted for the trial of conflicting claims to a dis-
puted possession . Then commenced a movement
which, as Mr. John Austin pointed out, exactly
reproduced itself in English law. Proprietors,
domini, began to prefer the simpler forms or
speedier course of the Interdict to the lagging
and intricate formalities of the Real Action , and
for the purpose of availing themselves of the
possessory remedy fell back upon the possession
which was supposed to be involved in their

proprietorship . The liberty conceded to persons

who were not true Possessors, but Owners , to
vindicate their rights by possessory remedies ,
though it may have been at first a boon, had
ultimately the effect of seriously deteriorating
both English and Roman jurisprudence. The
Roman law owes to it those subtleties on the

subject of Possession which have done so much

to discredit it, while English law, after the actions
which it appropriated to the recovery of real
260 EARLY HISTORY OF PROPERTY [CHAP. VIII

property had fallen into the most hopeless con-

fusion, got rid at last of the whole tangled mass
by a heroic remedy . No one can doubt that the
virtual abolition of the English real actions which
took place nearly thirty years since was a public
benefit, but still persons sensitive to the harmonies
of jurisprudence will lament that, instead of
cleansing, improving, and simplifying the true
proprietary actions, we sacrificed them all to
the possessory action of ejectment, thus basing
our whole system of land recovery upon a legal
fiction .

Legal tribunals have also powerfully assisted

to shape and modify conceptions of proprietary
right by means of the distinction between Law
and Equity, which always makes its first appear-
ance as a distinction between jurisdictions . Equit-
able property in England is simply property held
under the jurisdiction of the Court of Chancery.
At Rome, the Prætor's Edict introduced its novel
principles in the guise of a promise that under
certain circumstances a particular action or a
particular plea would be granted ; and, accord-
ingly, the property in bonis, or Equitable Pro-
perty, of Roman Law was property exclusively
protected by remedies which had their source
in the Edict. The mechanism by which equitable
rights were saved from being overridden by the
claims of the legal owner was somewhat different
in the two systems . With us their independence
is secured by the Injunction of the Court of
Chancery. Since , however, Law and Equity,
while not as yet consolidated , were administered
under the Roman system by the same Court,
CHAP. VIII] EQUITABLE PROPERTY 261

nothing like the Injunction was required, and

the Magistrate took the simpler course of refusing
to grant to the Civil Law Owner those actions
and pleas by which alone he could obtain the
property that belonged in equity to another.
But the practical operation of both systems was
nearly the same. Both, by means of a distinction
in procedure , were able to preserve new forms
of property in a sort of provisional existence ,
until the time should come when they were
recognised by the whole law. In this way, the
Roman Prætor gave an immediate right of property
to the person who had acquired a Res Mancipi
by mere delivery, without waiting for the ripening
of Usucapion. Similarly he in time recognised
an ownership in the Mortgagee, who had at first
been a mere " bailee " or depositary, and in the
Emphyteuta, or tenant of land which was subject
to a fixed perpetual rent. Following a parallel
line of progress, the English Court of Chancery
created a special proprietorship for the Mortgagor,
for the Cestui que Trust, for the Married Woman
who had the advantage of a particular kind of
settlement , and for the Purchaser who had not
yet acquired a complete legal ownership . All

these are examples in which forms of proprietary

right, distinctly new, were recognised and pre-
served . But indirectly Property has been affected
in a thousand ways by equity, both in England
and at Rome. Into whatever corner of juris-
prudence its authors pushed the powerful instru-
ment in their command, they were sure to meet,
and touch, and more or less materially modify the
law of property. When in the preceding pages
262 EARLY HISTORY OF PROPERTY [CHAP. VIII

I have spoken of certain ancient legal distinctions

and expedients as having powerfully affected the
history of ownership, I must be understood to
mean that the greatest part of their influence has
arisen from the hints and suggestions of improve-
ment infused by them into the mental atmosphere
which was breathed by the fabricators of equitable
systems.
But to describe the influence of Equity on

Ownership would be to write its history down

to our own days . I have alluded to it principally
because several esteemed contemporary writers
have thought that in the Roman severance of
Equitable from Legal property we have the clue
to that difference in the conception of Ownership ,
which apparently distinguishes the law of the
middle ages from the law of the Roman Empire.
The leading characteristic of the feudal conception
is its recognition of a double proprietorship, the
superior ownership of the lord of the fief co-
existing with the inferior property or estate of the
tenant . Now, this duplication of proprietary right
looks, it is urged, extremely like a generalised form
of the Roman distribution of rights over property

into Quiritarian or legal , and (to use a word of

late origin) Bonitarian or equitable . Gaius himself
observes upon the splitting of dominion into two
parts as a singularity of Roman law, and expressly
contrasts it with the entire or allodial ownership
to which other nations were accustomed . Jus-

tinian, it is true, reconsolidated dominion into

one, but then it was the partially reformed system
of the Western Empire, and not Justinian's
jurisprudence, with which the barbarians were
CHAP. VIII] ROMAN AND BARBARIAN LAW 263

in contact during so many centuries . While they

remained poised on the edge of the Empire, it
may well be that they learned this distinction,
which afterwards bore remarkable fruit . In

favour of this theory, it must at all events be

admitted that the element of Roman law in the
various bodies of barbarian custom has been very
imperfectly examined . The erroneous or in-
sufficient theories which have served to explain
Feudalism resemble each other in their tendency
to draw off attention from this particular ingre-
dient in its texture . The older investigators ,
who have been mostly followed in this country,
attached an exclusive importance to the circum-
stances of the turbulent period during which the
Feudal system grew to maturity ; and in later
times a new source of error has been added to

those already existing, in that pride of nationality

which has led German writers to exaggerate the
completeness of the social fabric which their
forefathers had built up before their appearance
in the Roman world . One or two English inquirers
who looked in the right quarter for the foundations
of the feudal system , failed nevertheless to conduct
their investigations to any satisfactory result ,
either from searching too exclusively for analogies
in the compilations of Justinian , or from confining
their attention to the compendia of Roman law
which are found appended to some of the extant
barbarian codes. But, if Roman jurisprudence
had any influence on the barbarous societies,
it had probably produced the greatest part of
its effects before the legislation of Justinian, and
before the preparation of these compendia . It
264 EARLY HISTORY OF PROPERTY [CHAP. VIII

was not the reformed and purified jurisprudence

of Justinian, but the undigested system which
prevailed in the Western Empire, and which the
Eastern Corpus Juris never succeeded in dis-
placing, that I conceive to have clothed with flesh
.
and muscle the scanty skeleton of barbarous
usage . The change must be supposed to have
taken place before the Germanic tribes had dis-
tinctly appropriated, as conquerors, any portion
of the Roman dominions, and therefore long before
Germanic monarchs had ordered breviaries of

Roman law to be drawn up for the use of their

Roman subjects . The necessity for some such
hypothesis will be felt by everybody who can
appreciate the difference between archaic and
developed law. Rude as are the Leges Barbarorum
which remain to us, they are not rude enough
to satisfy the theory of their purely barbarous
origin ; nor have we any reason for believing
that we have received, in written records, more
than a fraction of the fixed rules which were
practised among themselves by the members of
the conquering tribes . If we can once persuade
ourselves that a considerable element of debased
Roman law already existed in the barbarian
systems, we shall have done something to remove
a grave difficulty. The German Law of the
conquerors and the Roman law of their subjects
would not have combined if they had not possessed
more affinity for each other than refined juris-
prudence has usually for the customs of savages.
It is extremely likely that the codes of the bar-
barians, archaic as they seem , are only a compound
of true primitive usage with half-understood
CHAP. VIII] THE EMPHYTEUSIS 265

Roman rules, and that it was the foreign ingre-

dient which enabled them to coalesce with a

Roman jurisprudence that had already receded

somewhat from the comparative finish which it
had acquired under the Western Emperors .
But, though all this must be allowed , there are
several considerationswhich render it unlikely
that the feudal form of ownership was directly
suggested by the Roman duplication of domainial
rights . The distinction between legal and equit-
able property strikes one as a subtlety little likely
to be appreciated by barbarians ; and , moreover,
it can scarcely be understood unless Courts of Law
are contemplated in regular operation . But the
strongest reason against this theory is the existence
in Roman law of a form of property-a creation
of Equity, it is true-which supplies a much
simpler explanation of the transition from one set
of ideas to the other. This is the Emphyteusis ,
upon which the Fief of the middle ages has often
been fathered, though without much knowledge
of the exact share which it had in bringing feudal
ownership into the world. The truth is that the
Emphyteusis, not probably as yet known by its
Greek designation , marks one stage in a current
of ideas which led ultimately to feudalism . The
first mention in Roman history of estates larger
than could be farmed by a Paterfamilias , with his
household of sons and slaves, occurs when we come
to the holdings of the Roman patricians . These
great proprietors appear to have had no idea of
any system of farming by free tenants. Their

latifundia seem to have been universally cultivated

by slave-gangs , under bailiffs who were themselves
266 EARLY HISTORY OF PROPERTY [CHAP, VIII

slaves or freedmen ; and the only organisation

attempted appears to have consisted in dividing
the inferior slaves into small bodies , and making

them the peculium of the better and trustier sort,

who thus acquired a kind of interest in the effi-
ciency of their labour . This system was, however,
especially disadvantageous to one class of estated
proprietors, the Municipalities . Functionaries in
Italy were changed with the rapidity which often
surprises us in the administration of Rome herself ;
so that the superintendence of a large landed
domain by an Italian corporation must have been
excessively imperfect . Accordingly, we are told
that with the municipalities began the practice of
letting out agri vectigales , that is, of leasing land
for a perpetuity to a free tenant, at a fixed rent,
and under certain conditions . The plan was

afterwards extensively imitated by individual

proprietors, and the tenant, whose relation to
the owner had originally been determined by his
contract, was subsequently recognised by the
Prætor as having himself a qualified proprietorship,
which in time became known as an Emphyteusis.
From this point the history of tenure parts into
two branches . In the course of that long period
during which our records of the Roman Empire
are most incomplete , the slave-gangs of the great
Roman families became transformed into the
coloni, whose origin and situation constitute one
of the obscurest questions in all history. We may
suspect that they were formed partly by the
elevation of the slaves, and partly by the degrada-
tion of the free farmers ; and that they prove
the richer classes of the Roman Empire to have
CHAP. VIII] THE COLONI 267

become aware of the increased value which

landed property obtains when the cultivator has

an interest in the produce of the land . We know
that their servitude was predial ; that it wanted
many of the characteristics of absolute slavery,
and that they acquitted their service to the
landlord in rendering to him a fixed portion of
the annual crop . We know further that they
survived all the mutations of society in the ancient
and modern worlds. Though included in the
lower courses of the feudal structure, they con-
tinued in many countries to render to the landlord
precisely the same dues which they had paid to
the Roman dominus , and from a particular class
among them , the coloni medietarii, who reserved
half the produce for the owner, are descended
the metayer tenantry, who still conduct the
cultivation of the soil in almost all the South of

Europe. On the other hand, the Emphyteusis ,

if we may so interpret the allusions to it in the
Corpus Juris, became a favourite and beneficial
modification of property ; and it may be conjec-
tured that wherever free farmers existed, it was

this tenure which regulated their interest in the

land . The Prætor, as has been said, treated the
Emphyteuta as a true proprietor. When ejected,
he was allowed to reinstate himself by a Real
Action, the distinctive badge of proprietary right ,
and he was protected from disturbance by the
author of his lease so long as the canon, or quit-rent,
was punctually paid. But at the same time it
must not be supposed that the ownership of the
author of the lease was either extinct or dormant .

It was kept alive by a power of re-entry on non-

268 EARLY HISTORY OF PROPERTY [CHAP. VIII

payment of the rent, a right of pre-emption in

case of sale , and a certain control over the mode
of cultivation . We have , therefore , in the Emphy-
teusis a striking example of the double ownership
which characterised feudal property, and one,
moreover, which is much simpler and much more
easily imitated than the juxtaposition of legal
and equitable rights . The history of the Roman
tenure does not end , however, at this point . We
have clear evidence that between the great
fortresses which, disposed along the line of the
Rhine and Danube , long secured the frontier of
the Empire against its barbarian neighbours ,
there extended a succession of strips of land , the

agri limitrophi , which were occupied by veteran

soldiers of the Roman army on the terms of an
Emphyteusis. There was a double ownership .
The Roman State was landlord of the soil , but
the soldiers cultivated it without disturbance so
long as they held themselves ready to be called
out for military service whenever the state of
the border should require it . In fact, a sort of
garrison-duty, under a system closely resembling
that of the military colonies on the Austro -Turkish
border, had taken the place of the quit- rent
which was the service of the ordinary Emphyteuta .
It seems impossible to doubt that this was the
precedent copied by the barbarian monarchs who
founded feudalism . It had been within their
view for some hundred years , and many of the
veterans who guarded the border were, it is to be
remembered, themselves of barbarian extraction ,
who probably spoke the Germanic tongues . Not
only does the proximity of so easily followed a
CHAP. VIII] FEUDAL SERVICES 269

model explain whence the Frankish and Lombard

Sovereigns got the idea of securing the military
service of their followers by granting away

portions of their public domain ; but it perhaps

explains the tendency which immediately showed
itself in the Benefices to become hereditary , for
an Emphyteusis , though capable of being moulded
to the terms of the original contract , nevertheless
descended as a general rule to the heirs of the
grantee . It is true that the holder of a benefice ,
and more recently the lord of one of those fiefs
into which the benefices were transformed , appears
to have owed certain services which were not

likely to have been rendered by the military

colonist, and were certainly not rendered by the
Emphyteuta . The duty of respect and gratitude
to the feudal superior, the obligation to assist
in endowing his daughter and equipping his son ,
the liability to his guardianship in minority, and
many other similar incidents of tenure , must
have been literally borrowed from the relations
of Patron and Freedman under Roman law,
that is, of quondam-master and quondam-slave .
But then it is known that the earliest beneficiaries

were the personal companions of the sovereign ,

and it is indisputable that this position , brilliant
as it seems, was at first attended by some shade
of servile debasement . The person who minis-
tered to the Sovereign in his Court had given
up something of that absolute personal freedom
which was the proudest privilege of the allodial
proprietor.
 CHAPTER IX

THE EARLY HISTORY OF CONTRACT

THERE are few general propositions concerning the

age to which we belong which seem at first sight
likely to be received with readier concurrence
than the assertion that the society of our day

is mainly distinguished from that of preceding

generations by the largeness of the sphere which
is occupied in it by Contract. Some of the

phenomena on which this proposition rests are

among those most frequently singled out for
notice, for comment, and for eulogy. Not many
of us are so unobservant as not to perceive that
in innumerable cases where old law fixed a man's

social position irreversibly at his birth, modern

law allows him to create it for himself by con-
vention ; and indeed several of the few exceptions
which remain to this rule are constantly de-
nounced with passionate indignation . The point,
for instance, which is really debated in the vigorous
controversy still carried on upon the subject of
negro servitude, is whether the status of the slave
does not belong to by-gone institutions, and
whether the only relation between employer and
labourer which commends itself to modern morality
be not a relation determined exclusively by
contract. The recognition of this difference be-
tween past ages and the present enters into the
270
CHAP. IX] CONTRACT AND POLITICAL ECONOMY 271

very essence of the most famous contemporary

speculations . It is certain that the science of

Political Economy, the only department of moral

inquiry which has made any considerable progress
in our day, would fail to correspond with the facts
of life if it were not true that Imperative Law
had abandoned the largest part of the field which
it once occupied, and had left men to settle
rules of conduct for themselves with a liberty
never allowed to them till recently. The bias
indeed of most persons trained in political economy
is to consider the general truth on which their
science reposes as entitled to become universal,
and, when they apply it as an art, their efforts
are ordinarily directed to enlarging the province
of Contract and to curtailing that of Imperative
Law, except so far as law is necessary to enforce
the performance of Contracts . The impulse given
by thinkers who are under the influence of these
ideas is beginning to be very strongly felt in the
Western world. Legislation has nearly confessed
its inability to keep pace with the activity of man
in discovery, in invention , and in the manipulation
of accumulated wealth ; and the law even of
the least advanced communities tends more and

more to become a mere surface-stratum, having

under it an ever-changing assemblage of contrac-
tual rules with which it rarely interferes except
to compel compliance with a few fundamental
principles, or unless it be called in to punish the
violation of good faith .
Social inquiries, so far as they depend on the
consideration of legal phenomena , are in so back-
ward a condition that we need not be surprised
272 EARLY HISTORY OF CONTRACT (CHAP. IX

at not finding these truths recognised in the

commonplaces which pass current concerning
the progress of society. These commonplaces

answer much more to our prejudices than to our

convictions . The strong disinclination of most
men to regard morality as advancing seems to
be especially powerful when the virtues on which
Contract depends are in question , and many of us
have an almost instinctive reluctance to admitting

that good faith and trust in our fellows are more

widely diffused than of old , or that there is any-
thing in contemporary manners which parallels
the loyalty of the antique world . From time to
time, these prepossessions are greatly strengthened
by the spectacle of frauds, unheard of before the
period at which they were observed , and aston-
ishing from their complication as well as shocking
from their criminality. But the very character
of these frauds shows clearly that, before they
became possible, the moral obligations of which
they are the breach must have been more than
proportionately developed . It is the confidence

reposed and deserved by the many which affords

facilities for the bad faith of the few, so that,
if colossal examples of dishonesty occur, there is
no surer conclusion than that scrupulous honesty
is displayed in the average of the transactions
which, in the particular case , have supplied the
delinquent with his opportunity. If we insist
on reading the history of morality as reflected
in jurisprudence , by turning our eyes not on the
law of Contract but on the law of Crime , we must
be careful that we read it aright . The only form
of dishonesty treated of in the most ancient
CHAP. IX] THEORIES OF CONTRACT 273

Roman law is Theft . At the moment at which

I write, the newest chapter in the English criminal
law is one which attempts to prescribe punishment
for the frauds of Trustees . The proper inference
from this contrast is not that the primitive Romans
practised a higher morality than ourselves. We
should rather say that, in the interval between
their days and ours , morality has advanced from
a very rude to a highly refined conception-from
viewing the rights of property as exclusively
sacred , to looking upon the rights growing out
of the mere unilateral reposal of confidence as
entitled to the protection of the penal law.
The definite theories of jurists are scarcely
nearer the truth in this point than the opinions
of the multitude . To begin with the views of the
Roman lawyers, we find them inconsistent with
the true history of moral and legal progress . One
class of contracts , in which the plighted faith of
the contracting parties was the only material
ingredient, they specifically denominated Contracts
juris gentium, and though these contracts were
undoubtedly the latest born into the Roman
system , the expression employed implies, if a
definite meaning be extracted from it, that they
were more ancient than certain other forms of
engagement treated of in Roman law, in which the
neglect of a mere technical formality was as fatal
to the obligation as misunderstanding or deceit .
But then the antiquity to which they were re-
ferred was vague, shadowy , and only capable of
being understood through the Present ; nor was
it until the language of the Roman lawyers became
the language of an age which had lost the key to
18
274 EARLY HISTORY OF CONTRACT [CHAP . IX

their mode of thought that a " Contract of the

Law of Nations " came to be distinctly looked
upon as a contract known to man in a state of
Nature . Rousseau adopted both the juridical and
the popular error . In the Dissertation on the
effects of Art and Science upon Morals, the first
of his works which attracted attention and the
one in which he states most unreservedly the
opinions which made him the founder of a sect,
the veracity and good faith attributed to the
ancient Persians are repeatedly pointed out as
traits of primitive innocence which have been
gradually obliterated by civilisation ; and at a
later period he found a basis for all his speculations
in the doctrine of an original Social Contract.
The Social Contract or Compact is the most
systematic form which has ever been assumed by
the error we are discussing. It is a theory which,
though nursed into importance by political pas-
sions , derived all its sap from the speculations of
lawyers . True it certainly is that the famous
Englishmen, for whom it had first had attraction,
valued it chiefly for its political serviceableness ,
but, as I shall presently attempt to explain , they
would never have arrived at it , if politicians had
not long conducted their controversies in legal
phraseology. Nor were the English authors of
the theory blind to that speculative amplitude
which recommended it so strongly to the French-
men who inherited it from them. Their writings
show they perceived that it could be made to
account for all social, quite as well as for all
political phenomena . They had observed the
fact, already striking in their day, that of the
CHAP. IX] ANALYSIS OF SOCIAL PHENOMENA 275

positive rules obeyed by men, the greater part

were created by Contract , the lesser by Imperative
Law. But they were ignorant or careless of the
historical relation of these two constituents of

jurisprudence. It was for the purpose, therefore,

of gratifying their speculative tastes by attributing
all jurisprudence to a uniform source , as much as
with the view of eluding the doctrines which
claimed a divine parentage for Imperative Law,
that they devised the theory that all Law had its
origin in Contract . In another stage of thought ,
they would have been satisfied to leave their
theory in the condition of an ingenious hypothesis
or a convenient verbal formula . But that age
was under the dominion of legal superstitions .
The State of Nature had been talked about till
it had ceased to be regarded as paradoxical , and
hence it seemed easy to give a fallacious reality
and definiteness to the contractual origin of Law
by insisting on the Social Compact as a historical
fact.

Our own generation has got rid of these

erroneous juridical theories , partly by outgrowing
the intellectual state to which they belong, and
partly by almost ceasing to theorise on such
subjects altogether . The favourite occupation of
active minds at the present moment, and the one
which answers to the speculations of our fore-
fathers on the origin of the social state , is the
analysis of society as it exists and moves before
our eyes ; but, through omitting to call in the
assistance of history, this analysis too often de-
generates into an idle exercise of curiosity, and
is especially apt to incapacitate the inquirer for
276 EARLY HISTORY OF CONTRACT [CHAP. IX

comprehending states of society which differ con-

siderably from that to which he is accustomed.
The mistake of judging the men of other periods
by the morality of our own day has its parallel in
the mistake of supposing that every wheel and bolt
in the modern social machine had its counterpart

in more rudimentary societies . Such impressions

ramify very widely, and masque themselves very
subtly, in historical works written in the modern
fashion ; but I find the trace of their presence in
the domain of jurisprudence in the praise which
is frequently bestowed on the little apologue of
Montesquieu concerning the Troglodytes, inserted
in the " Lettres Persanes." The Troglodytes were

a people who systematically violated their Con-

tracts , and so perished utterly. If the story

bears the moral which its author intended, and is

employed to expose an anti-social heresy by which
this century and the last have been threatened , it
is most unexceptionable ; but if the inference be
obtained from it that society could not possibly
hold together without attaching a sacredness to
promises and agreements which should be on

something like a par with the respect that is paid

to them by a mature civilisation , it involves an
error so grave as to be fatal to all sound under-
standing of legal history. The fact is that the

Troglodytes have flourished and founded powerful

states with very small attention to the obligations
of Contract. The point which before all others
has to be apprehended in the constitution of
primitive societies is that the individual creates
for himself few or no rights, and few or no duties.
The rules which he obeys are derived first from the
CHAP, IX] EARLY NOTIONS OF CONTRACT 277

station into which he is born , and next from the

imperative commands addressed to him by the
chief of the household of which he forms part.
Such a system leaves the very smallest room for
Contract. The members of the same family (for
so we may interpret the evidence) are wholly
incapable of contracting with each other, and the
family is entitled to disregard the engagements
by which any one of its subordinate members has
attempted to bind it . Family, it is true, may
contract with family, chieftain with chieftain, but
the transaction is one of the same nature , and

encumbered by as many formalities, as the

alienation of property, and the disregard of one
iota of the performance is fatal to the obligation .
The positive duty resulting from one man's
reliance on the word of another is among the
slowest conquests of advancing civilisation .
Neither Ancient Law nor any other source of
evidence discloses to us society entirely destitute
of the conception of Contract . But the concep-
tion, when it first shows itself, is obviously rudi-
mentary. No trustworthy primitive record can
be read without perceiving that the habit of mind
which induces us to make good a promise is as yet
imperfectly developed, and that acts of flagrant
perfidy are often mentioned without blame and
sometimes described with approbation . In the
Homeric literature , for instance, the deceitful
cunning of Ulysses appears as a virtue of the same
rank with the prudence of Nestor, the constancy
of Hector, and the gallantry of Achilles. Ancient
law is still more suggestive of the distance which
separates the crude form of Contract from its
278 EARLY HISTORY OF CONTRACT [CHAP. IX

maturity. At first, nothing is seen like the inter-

position of law to compel the performance of
a promise . That which the law arms with its
sanctions is not a promise , but a promise accom-
panied with a solemn ceremonial . Not only are
the formalities of equal importance with the
promise itself, but they are, if anything, of greater
importance ; for that delicate analysis which
mature jurisprudence applies to the conditions of
mind under which a particular verbal assent is
given appears, in ancient law, to be transferred
to the words and gestures of the accompanying
performance . No pledge is enforced if a single
form be omitted or misplaced , but, on the other
hand, if the forms can be shown to have been
accurately proceeded with, it is of no avail to
plead that the promise was made under duress
or deception. The transmutation of this ancient
view into the familiar notion of a Contract is
plainly seen in the history of jurisprudence . First
one or two steps in the ceremonial are dispensed
with ; then the others are simplified or permitted

to be neglected on certain conditions ; lastly, a

few specific contracts are separated from the rest
and allowed to be entered into without form ,
the selected contracts being those on which the
activity and energy of social intercourse depend .
Slowly, but most distinctly, the mental engage-
ment isolates itself amid the technicalities, and
gradually becomes the sole ingredient on which
the interest of the jurisconsult is concentrated.
Such a mental engagement , signified through
external acts , the Romans called a Pact or Con-
vention ; and when the Convention has once been
CHAP. IX] EARLY ROMAN CONTRACTS 279

conceived as the nucleus of a Contract, it soon

becomes the tendency of advancing jurisprudence
to break away the external shell of form and
ceremony. Forms are thenceforward only retained
so far as they are guarantees of authenticity and
securities for caution and deliberation . The idea
of a Contract is fully developed, or, to employ the
Roman phrase, Contracts are absorbed in Pacts .
The history of this course of change in Roman
law is exceedingly instructive . At the earliest
dawn of the jurisprudence , the term in use for a
Contract was one which is very familiar to the
students of historical Latinity . It was nexum,
and the parties to the contract were said to be
nexi, expressions which must be carefully attended
to on account of the singular durableness of the
metaphor on which they are founded . The notion
that persons under a contractual engagement are
connected together by a strong bond or chain ,
continued till the last to influence the Roman

jurisprudence of Contract ; and flowing thence it

has mixed itself with modern ideas . What then
was involved in this nexum or bond ? A definition
which has descended to us from one of the Latin

antiquarians describes nexum as omne quod geritur

per as et libram, " every transaction with the
copper and the balance, " and these words have
occasioned a good deal of perplexity . The copper
and the balance are the well-known accompani-
ments of the Mancipation, the ancient solemnity
described in a former chapter, by which the right
of ownership in the highest form of Roman
Property was transferred from one person to
another. Mancipation was a conveyance, and
280 EARLY HISTORY OF CONTRACT [CHAP, IX

hence has arisen the difficulty, for the definition

thus cited appears to confound Contracts and
Conveyances, which in the philosophy of juris-
prudence are not simply kept apart, but are
actually opposed to each other . The jus in re,
right in rem, right " availing against all the world,"
or Proprietary Right, is sharply distinguished by
the analyst of mature jurisprudence from the jus
ad rem, right in personam, right " availing against
a single individual or group ," or Obligation . Now
Conveyances transfer Proprietary Rights, Con-
tracts create Obligations- how then can the two
be included under the same name or same general
conception ? This , like many similar embarrass-
ments , has been occasioned by the error of ascrib-
ing to the mental condition of an unformed society
a faculty which pre-eminently belongs to an
advanced stage of intellectual development, the
faculty of distinguishing in speculation ideas
which are blended in practice . We have indica-
tions not to be mistaken of a state of social affairs
in which Conveyances and Contracts were practi-
cally confounded ; nor did the discrepance of the
conceptions become perceptible till men had begun
to adopt a distinct practice in contracting and
conveying .
It may here be observed that we know enough
of ancient Roman law to give some idea of the
mode of transformation followed by legal con-
ceptions and by legal phraseology in the infancy
of Jurisprudence . The change which they under-
go appears to be a change from general to special ;
or, as we might otherwise express it, the ancient
conceptions and the ancient terms are subjected
CHAP. IX] SPECIALISING PROCESS IN ANCIENT LAW 281

to a process of gradual specialisation . An ancient

legal conception corresponds not to one but to
several modern conceptions . An ancient technical
expression serves to indicate a variety of things
which in modern law have separate names allotted
to them . If, however, we take up the history
of Jurisprudence at the next stage, we find that
the subordinate conceptions have gradually dis-
engaged themselves, and that the old general
names are giving way to special appellations . The
old general conception is not obliterated , but it
has ceased to cover more than one or a few of the
notions which it first included. So too the old

technical name remains , but it discharges only one

of the functions which it once performed . We
may exemplify this phenomenon in various ways .
Patriarchal Power of all sorts appears , for instance ,
to have been once conceived as identical in cha-

racter, and it was doubtless distinguished by one

name. The Power exercised by the ancestor was
the same whether it was exercised over the family
or the material property-over flocks, herds ,
slaves , children, or wife . We cannot be abso-
lutely certain of its old Roman name, but there
is very strong reason for believing, from the
number of expressions indicating shades of the
notion of power into which the word manus enters ,
that the ancient general term was manus . But,
when Roman law has advanced a little , both the
name and the idea have become specialised .
Power is discriminated , both in word and in con-
ception, according to the object over which it is
exerted . Exercised over material commodities
or slaves, it has become dominium -over children,
282 EARLY HISTORY OF CONTRACT [CHAP. IX

it is Potestas-over free persons whose services

have been made away to another by their own
ancestor, it is mancipium-over a wife, it is still
manus . The old word , it will be perceived, has
not altogether fallen into desuetude, but is confined
to one very special exercise of the authority it had
formerly denoted . This example will enable us
to comprehend the nature of the historical alliance
between Contracts and Conveyances. There seems
to have been one solemn ceremonial at first for all
solemn transactions , and its name at Rome appears
to have been nexum . Precisely the same forms
which were in use when a conveyance of property

was effected seem to have been employed in the

making of a contract . But we have not very far
to move onwards before we come to a period at
which the notion of a Contract has disengaged
itself from the notion of a Conveyance . A double
change has thus taken place . The transaction
" with the copper and the balance," when intended
to have for its office the transfer of property, is
known by the new and special name of Mancipa-
tion . The ancient Nexum still designates the
same ceremony, but only when it is employed for
the special purpose of solemnising a contract .
When two or three legal conceptions are spoken
of as anciently blended in one , it is not intended
to imply that some one of the included notions
may not be older than the others, or, when those
others have been formed, may not greatly pre-
dominate over and take precedence of them. The
reason why one legal conception continues so long
to cover several conceptions, and one technical
phrase to do instead of several, is doubtless that
CHAP. IX] THE NEXUM 283

practical changes are accomplished in the law

of primitive societies long before men see occasion
to notice or name them. Though I have said that
Patriarchal Power was not at first distinguished
according to the objects over which it was exer-
cised , I feel sure that Power over Children was the
root of the old conception of Power ; and I cannot
doubt that the earliest use of the Nexum, and the
one primarily regarded by those who resorted to
it, was to give proper solemnity to the alienation
of property. It is likely that a very slight per-
version of the Nexum from its original functions
first gave rise to its employment in Contracts , and
that the very slightness of the change long pre-
vented its being appreciated or noticed . The old
name remained because men had not become
conscious that they wanted a new one ; the old
notion clung to the mind because nobody had
seen reason to be at the pains of examining it.
We have had the process clearly exemplified in
the history of Testaments . A Will was at first
a simple conveyance of Property. It was only
the enormous practical difference that gradually
showed itself between this particular conveyance
and all others which caused it to be regarded
separately, and even as it was , centuries elapsed
before the ameliorators of law cleared away the
useless encumbrance of the nominal mancipation ,
and consented to care for nothing in the Will but
the expressed intentions of the Testator . It is
unfortunate that we cannot track the early
history of Contracts with the same absolute con-
fidence as the early history of Wills, but we are
not quite without hints that contracts first showed
284 EARLY HISTORY OF CONTRACT [CHAP. IX

themselves through the nexum being put to a new

use and afterwards obtained recognition as dis-
tinct transactions through the important practical
consequences of the experiment . There is some,
but not very violent , conjecture in the following
delineation of the process . Let us conceive a sale
for ready money as the normal type of the Nexum .
The seller brought the property of which he
intended to dispose -a slave , for example-the
purchaser attended with the rough ingots of copper
which served for money-and an indispensable
assistant, the libripens, presented himself with
a pair of scales . The slave with certain fixed
formalities was handed over to the vendee-the

copper was weighed by the libripens and passed

to the vendor. So long as the business lasted it
was a nexum, and the parties were nexi ; but the
moment it was completed , the nexum ended, and
the vendor and purchaser ceased to bear the name
derived from their momentary relation . But
now, let us move a step onward in commercial
history. Suppose the slave transferred , but the
money not paid . In that case, the nexum is
finished, so far as the seller is concerned, and when
he has once handed over his property, he is no
longer nexus ; but, in regard to the purchaser, the
nexum continues . The transaction , as to his part
of it, is incomplete , and he is still considered to be
nexus. It follows, therefore , that the same term

described the conveyance by which the right of

property was transmitted , and the personal obliga-
tion of the debtor for the unpaid purchase-money.
We may still go forward, and picture to ourselves

a proceeding wholly formal, in which nothing is

CHAP. IX] CONVEYANCES AND CONTRACTS 285

handed over and nothing paid ; we are brought

at once to a transaction indicative of much

higher commercial activity, an executory Contract

of Sale.
If it be true that , both in the popular and in
the professional view, a Contract was long regarded
as an incomplete Conveyance, the truth has im-
portance for many reasons. The speculations of
the last century concerning mankind in a state
of nature, are not unfairly summed up in the
doctrine that " in the primitive society property

was nothing, and obligation everything " ; and it

will now be seen that, if the proposition were
reversed, it would be nearer the reality. On the
other hand, considered historically , the primitive
association of Conveyances and Contracts ex-
plains something which often strikes the scholar

and jurist as singularly enigmatical , I mean the

extraordinary and uniform severity of very ancient
systems of law to debtors, and the extravagant
powers which they lodge with creditors . When
once we understand that the nexum was artificially
prolonged to give time to the debtor , we can better
comprehend his position in the eye of the public
and of the law. His indebtedness was doubtless

regarded as an anomaly, and suspense of payment

in general as an artifice and a distortion of strict
rule . The person who had duly consummated his
part in the transaction must , on the contrary ,
have stood in peculiar favour ; and nothing would
seem more natural than to arm him with stringent
facilities for enforcing the completion of a pro-
ceeding which, of strict right , ought never to have
been extended or deferred .
286 EARLY HISTORY OF CONTRACT [CHAP. IX

Nexum, therefore , which originally signified

a Conveyance of property, came insensibly to
denote a Contract also , and ultimately so constant
became the association between this word and the

notion of a Contract , that a special term , Manci-

pium or Mancipatio , had to be used for the purpose
of designating the true nexum or transaction in
which the property was really transferred . Con-
tracts are therefore now severed from Convey-
ances, and the first stage in their history is accom-
plished, but still they are far enough from that
epoch of their development when the promise of
the contractor has a higher sacredness than the
formalities with which it is coupled . In attempt-
ing to indicate the character of the changes passed
through in this interval, it is necessary to trespass
a little on a subject which lies properly beyond
the range of these pages, the analysis of Agreement
effected by the Roman jurisconsults. Of this
analysis , the most beautiful monument of their
sagacity, I need not say more than that it is based
on the theoretical separation of the Obligation
from the Convention or Pact. Bentham and Mr.
Austin have laid down that the " two main
essentials of a contract are these : first, a signifi-
cation by the promising party of his intention to
do the acts or to observe the forbearances which
he promises to do or to observe . Secondly, a
signification by the promisee that he expects the
promising party will fulfil the proffered promise . "
This is virtually identical with the doctrine of the
Roman lawyers, but then, in their view, the result
of these " significations " was not a Contract, but
a Convention or Pact. A Pact was the utmost
CHAP. IX] ROMAN ANALYSIS OF AGREEMENT 287

product of the engagements of individuals agreeing

among themselves, and it distinctly fell short of
a Contract . Whether it ultimately became a
Contract depended on the question whether the
law annexed an Obligation to it. A Contract was
a Pact (or Convention) plus an Obligation . So
long as the Pact remained unclothed with the
Obligation, it was called nude or naked.
What was an Obligation ? It is defined by
the Roman lawyers as " Juris vinculum, quo
necessitate adstringimur alicujus solvendæ rei ."
This definition connects the Obligation with the
Nexum through the common metaphor on which
they are founded, and shows us with much clear-

ness the pedigree of a peculiar conception . The

Obligation is the " bond " or " chain, " with which
the law joins together persons or groups of persons,
in consequence of certain voluntary acts . The
acts which have the effect of attracting an Obliga-
tion are chiefly those classed under the heads of
Contract and Delict, of Agreement and Wrong ;
but a variety of other acts have a similar conse-
quence which are not capable of being comprised
in an exact classification . It is to be remarked ,
however, that the Pact does not draw to itself the
Obligation in consequence of any moral necessity ;

it is the law which annexes it in the plenitude of

its power, a point the more necessary to be noted ,
because a different doctrine has sometimes been
propounded by modern interpreters of the Civil
Law who had moral or metaphysical theories of
their own to support . The image of a vinculum
juris colours and pervades every part of the
Roman law of Contract and Delict . The law
288 EARLY HISTORY OF CONTRACT [CHAP. IX

bound the parties together, and the chain could

only be undone by the process called solutio, an
expression still figurative, to which our word
""
payment " is only occasionally and incidentally
equivalent. The consistency with which the figu-
rative image was allowed to present itself, explains
an otherwise puzzling peculiarity of Roman legal
phraseology, the fact that " Obligation " signifies
rights as well as duties, the right , for example, to
have a debt paid as well as the duty of paying it.
The Romans kept, in fact, the entire picture of
the " legal chain " before their eyes, and regarded
one end of it no more and no less than the other.

In the developed Roman law, the Convention,

as soon as it was completed, was, in almost all
cases, at once crowned with the Obligation, and
so became a Contract ; and this was the result
to which contract-law was surely tending. But
for the purpose of this inquiry, we must attend
particularly to the intermediate stage-that in
which something more than a perfect agreement
was required to attract the obligation . This
epoch is synchronous with the period at which the
famous Roman classification of Contracts into four

sorts-the Verbal, the Literal, the Real, and the

Consensual - had come into use, and during which
these four orders of contract constituted the only
descriptions of engagement which the law would
enforce . The meaning of the fourfold distribution
is readily understood as soon as we apprehend the
theory which severed the Obligation from the
Convention. Each class of contracts was in fact
named from certain formalities which were re-

quired ov and above the mere agreement of the

CHAP. IX] CONVENTION AND CONTRACT 289

contracting parties . In the Verbal Contract , as

soon as the Convention was effected , a form of
words had to be gone through before the " vin-
culum juris was attached to it. In the Literal
Contract, an entry in a ledger or table-book had
the effect of clothing the Convention with the
Obligation, and the same result followed , in the
case of the Real Contract, from the delivery of
the Res or Thing which was the subject of the
preliminary engagement . The contracting parties
came, in short, to an understanding in each case ;
but, if they went no further, they were not obliged
to one another , and could not compel performance
or ask redress for a breach of faith . But let them

comply with certain prescribed formalities, and

the Contract was immediately complete , taking
its name from the particular form which it had
suited them to adopt. The exceptions to this
practice will be noticed presently .
I have enumerated the four Contracts in their
historical order, which order, however, the Roman
Institutional writers did not invariably follow .
There can be no doubt that the Verbal Contract

was the most ancient of the four, and that it is

the eldest known descendant of the primitive
Nexum . Several species of Verbal Contract were
anciently in use , but the most important of all ,
and the only one treated of by our authorities,
was effected by means of a stipulation , that is ,
a Question and Answer ; a question addressed
by the person who exacted the promise, and an
answer given by the person who made it . This
question and answer constituted the additional

ingredient which, as I have just explained , was

19
290 EARLY HISTORY OF CONTRACT [CHAP. IX

demanded by the primitive notion over and above

the mere agreement of the persons interested .
They formed the agency by which the Obligation
was annexed . The old Nexum has now be-

queathed to maturer jurisprudence first of all

the conception of a chain uniting the contracting
parties, and this has become the Obligation . It
has further transmitted the notion of a ceremonial

accompanying and consecrating the engagement,

and this ceremonial has been transmuted into the

Stipulation . The conversion of the solemn con-

veyance, which was the prominent feature of the
original Nexum, into a mere question and answer,
would be more of a mystery than it is if we had
not the analogous history of Roman Testaments
to enlighten us . Looking at that history, we
can understand how the formal conveyance was

first separated from the part of the proceeding

which had immediate reference to the business
in hand, and how afterwards it was omitted
altogether. As then the question and answer of
the Stipulation were unquestionably the Nexum
in a simplified shape, we are prepared to find
that they long partook of the nature of a technical
form . It would be a mistake to consider them
as exclusively recommending themselves to the
older Roman lawyers through their usefulness
in furnishing persons meditating an agreement
with an opportunity for consideration and re-
flection. It is not to be disputed that they had
a value of this kind, which was gradually recog-
nised ; but there is proof that their function
in respect to Contracts was at first formal and
ceremonial in the statement of our authorities ,
CHAP. IX] THE VERBAL CONTRACT 291

that not every question and answer was of old

sufficient to constitute a Stipulation , but only
a question and answer couched in technical

phraseology specially appropriated to the par-

ticular occasion .
But although it is essential for the proper
appreciation of the history of contract-law that
the Stipulation should be understood to have been
looked upon as a solemn form before it was
recognised as a useful security , it would be wrong
on the other hand to shut our eyes to its real
usefulness.The Verbal Contract , though it had
lost much of its ancient importance , survived to
the latest period of Roman jurisprudence ; and
we may take it for granted that no institution
of Roman law had so extended a longevity unless
it served some practical advantage . I observe
in an English writer some expressions of surprise
that the Romans even of the earliest times were
content with so meagre a protection against haste
and irreflection . But on examining the Stipu-
lation closely, and remembering that we have to
do with a state of society in which written evidence
was not easily procurable, I think we must admit
that this Question and Answer, had it been
expressly devised to answer the purpose which it
served , would have been justly designated a highly
ingenious expedient . It was the promisee who,
in the character of stipulator, put all the terms
of the contract into the form of a question , and
the answer was given by the promisor . " Do you
promise that you will deliver me such and such a
slave , at such and such a place , on such and such
a day ? " " I do promise." Now, if we reflect
292 EARLY HISTORY OF CONTRACT [CHAP. IX

for a moment, we shall see that this obligation

to put the promise interrogatively inverts the
natural position of the parties , and, by effectually
breaking the tenor of the conversation , prevents
the attention from gliding over a dangerous
pledge . With us , a verbal promise is , generally
speaking, to be gathered exclusively from the
words of the promisor. In old Roman law, another
step was absolutely required ; it was necessary
for the promisee , after the agreement had been
made, to sum up all its terms in a solemn interro-
gation ; and it was of this interrogation, of course,
and of the assent to it, that proof had to be given
at the trial - not of the promise, which was not
in itself binding . How great a difference this
seemingly insignificant peculiarity may make in
the phraseology of contract-law is speedily realised
by the beginner in Roman jurisprudence, one of
whose first stumbling-blocks is almost universally
created by it . When we in English have occasion,
in mentioning a contract, to connect it for con-
venience' sake with one of the parties, -for ex-
ample, if we wished to speak generally of a con-
tractor, it is always the promisor at whom our
words are pointing . But the general language
of Roman law takes a different turn ; it always
regards the contract, if we may so speak, from
the point of view of the promisee ; in speaking
of a party to a contract , it is always the Stipulator,
the person who asks the question , who is primarily
alluded to . But the serviceableness of the stipu-
lation is most vividly illustrated by referring to
the actual examples in the pages of the Latin
comic dramatists . If the entire scenes are read
CHAP. IX] THE LITERAL CONTRACT 293

down in which these passages occur (ex. gra .

Plautus, Pseudolus, Act I. sc . I ; Act IV. sc. 6 ;
Trinummus , Act V. sc. 2) , it will be perceived
how effectually the attention of the person medi-
tating the promise must have been arrested by
the question, and how ample was the opportunity
for withdrawal from an improvident undertaking .
In the Literal or Written Contract , the formal
act by which an Obligation was superinduced on
the Convention, was an entry of the sum due,
where it could be specifically ascertained , on the
debit side of a ledger. The explanation of this
contract turns on a point of Roman domestic
manners, the systematic character and exceeding
regularity of book- keeping in ancient times . There
are several minor difficulties of old Roman law,
as, for example , the nature of the Slave's Peculium,
which are only cleared up when we recollect that
a Roman household consisted of a number of
persons strictly accountable to its head, and that
every single item of domestic receipt and expendi-
ture, after being entered in waste books, was
transferred at stated periods to a general house-
hold ledger. There are some obscurities , however,
in the descriptions we have received of the Literal
Contract, the fact being that the habit of keeping
books ceased to be universal in later times, and
the expression " Literal Contract " came to signify
a form of engagement entirely different from that
originally understood . We are not, therefore, in
a position to say, with respect to the primitive
Literal Contract, whether the obligation was
created by a simple entry on the part of the
creditor, or whether the consent of the debtor or
294 EARLY HISTORY OF CONTRACT [CHAP. IX

a correspondent entry in his own books was

necessary to give it legal effect . The essential

point is however established , that , in the case

of this Contract, all formalities were dispensed
with on a condition being complied with. This
is another step downwards in the history of
contract- law .
The Contract which stands next in historical

succession , the Real Contract, shows a great

advance in ethical conceptions . Whenever any
agreement had for its object the delivery of a
specific thing- and this is the case with the large
majority of simple engagements-the Obligation
was drawn down as soon as the delivery had
actually taken place . Such a result must have
involved a serious innovation on the oldest ideas

of Contract ; for doubtless, in the primitive

times , when a contracting party had neglected
to clothe his agreement in a stipulation , nothing
done in pursuance of the agreement would be
recognised by the law. A person who had paid
over money on loan would be unable to sue for

its repayment unless he had formally stipulated

for it . But, in the Real Contract, performance
on one side is allowed to impose a legal duty on
the other- evidently on ethical grounds. For
the first time then moral considerations appear
as an ingredient in Contract-law, and the Real
Contract differs from its two predecessors in
being founded on these, rather than on respect
for technical forms or on deference to Roman
domestic habits .

We now reach the fourth class, or Consensual

Contracts, the most interesting and important of
CHAP. IX] THE CONSENSUAL CONTRACTS 295

all . Four specified Contracts were distinguished

by this name : Mandatum, i.e. Commission or
Agency ; Societas or Partnership ; Emtio Ven-
ditio or Sale ; and Locatio Conductio or Letting
and Hiring . A few pages back, after stating that
a Contract consisted of a Pact or Convention to

which an Obligation had been superadded , I spoke

of certain acts or formalities by which the law
permitted the Obligation to be attracted to the
Pact. I used this language on account of the
advantage of a general expression, but it is not
strictly correct unless it be understood to include
the negative as well as the positive . For, in truth,
the peculiarity of these Consensual Contracts is
that no formalities are required to create them out
of the Pact . Much that is indefensible, and much
more that is obscure, has been written about the
Consensual Contracts , and it has even been asserted
that in them the consent of the Parties is more

emphatically given than in any other species of

agreement . But the term Consensual merely
indicates that the Obligation is here annexed
at once to the Consensus . The Consensus , or
mutual assent of the parties, is the final and
crowning ingredient in the Convention , and it
is the special characteristic of agreements falling
under one of the four heads of Sale, Partnership ,
Agency, and Hiring, that, as soon as the assent
of the parties has supplied this ingredient , there
is at once a Contract. The Consensus draws

with it the Obligation , performing, in transactions

of the sort specified , the exact functions which
are discharged, in the other contracts , by the
Res or Thing, by the Verba stipulationis , and by
296 EARLY HISTORY OF CONTRACT [CHAP. IX

the Literæ or written entry in a ledger. Consensual

is therefore a term which does not involve the

slightest anomaly, but is exactly analogous to

Real, Verbal, and Literal.
In the intercourse of life the commonest and

most important of all the contracts are unquestion-

ably the four styled Consensual . The larger part
of the collective existence of every community

is consumed in transactions of buying and selling,

of letting and hiring, of alliances between men
for purposes of business, of delegation of business
from one man to another ; and this is no doubt the
consideration which led the Romans, as it has led
most societies, to relieve these transactions from
technical incumbrance, to abstain as much as
possible from clogging the most efficient springs
of social movement. Such motives were not of
course confined to Rome, and the commerce of the
Romans with their neighbours must have given
them abundant opportunities for observing that
the contracts before us tended everywhere to
become Consensual, obligatory on the mere signi-
fication of mutual assent. Hence, following their
usual practice, they distinguished these contracts
as contracts Juris Gentium . Yet I do not think
that they were so named at a very early period .
The first notions of a Jus Gentium may have been
deposited in the minds of the Roman lawyers
long before the appointment of a Prætor Pere-
grinus, but it would only be through extensive
and regular trade that they would be familiarised
with the contractual system of other Italian
communities, and such a trade would scarcely
attain considerable proportions before Italy had
CHAP . IX] THE CONSENSUAL CONTRACTS 297

been thoroughly pacified, and the supremacy of

Rome conclusively assured . Although, however,
there is strong probability that the Consensual
Contracts were the latest born into the Roman

system , and though it is likely that the qualifica-

tion, Juris Gentium, stamps the recency of their
origin, yet this very expression , which attributes
them to the " Law of Nations," has in modern
times produced the notion of their extreme
antiquity . For, when the " Law of Nations "
had been converted into the " Law of Nature,"
it seemed to be implied that the Consensual
Contracts were the type of the agreements most
congenial to the natural state ; and hence arose
the singular belief that the younger the civilisation ,
the simpler must be its forms of contract.
The Consensual Contracts , it will be observed,
were extremely limited in number. But it cannot

be doubted that they constituted the stage in

the history of Contract-law from which all modern
conceptions of contract took their start . The
motion of the will which constitutes agreement
was now completely insulated, and became the
subject of separate contemplation ; forms were
entirely eliminated from the notion of contract,
and external acts were only regarded as symbols
of the internal act of volition . The Consensual

Contracts had, moreover , been classed in the

Jus Gentium , and it was not long before this
classification drew with it the inference that they
were the species of agreement which represented
the engagements approved of by Nature and
included in her code . This point once reached ,
we are prepared for several celebrated doctrines
298 EARLY HISTORY OF CONTRACT (CHAP. IX

and distinctions of the Roman lawyers. One of

them is the distinction between Natural and

Civil Obligations . When a person of full in-

tellectual maturity had deliberately bound himself
by an engagement, he was said to be under a

natural obligation , even though he had omitted

some necessary formality, and even though through
some technical impediment he was devoid of
the formal capacity for making a valid contract .
The law (and this is what the distinction implies)
would not enforce the obligation, but it did not
absolutely refuse to recognise it ; and natural
obligations differed in many respects from obliga-
tions which were merely null and void, more
particularly in the circumstance that they could
be civilly confirmed, if the capacity for contract
were subsequently acquired . Another very pecu-
liar doctrine of the jurisconsults could not have
had its origin earlier than the period at which the
Convention was severed from the technical ingre-
dients of Contract . They taught that though
nothing but a Contract could be the foundation
of an action , a mere Pact or Convention could be

the basis of a plea. It followed from this, that

though nobody could sue upon an agreement
which he had not taken the precaution to mature
into a Contract by complying with the proper
forms, nevertheless a claim arising out of a valid
contract could be rebutted by proving a counter-
agreement which had never got beyond the state
of a simple convention . An action for the re-
covery of a debt could be met by showing a mere
informal agreement to waive or postpone the
payment.
CHAP. IX] NATURAL AND CIVIL OBLIGATION 299

The doctrine just stated indicates the hesitation

of the Prætors in making their advances towards
the greatest of their innovations . Their theory
of Natural law must have led them to look with
especial favour on the Consensual Contracts and
on those Pacts or Conventions of which the
Consensual Contracts were only particular in-
stances ; but they did not at once venture on
extending to all Conventions the liberty of the
Consensual Contracts . They took advantage of
that special superintendence over procedure which
had been confided to them since the first beginnings
of Roman law, and, while they still declined to
permit a suit to be launched which was not based
on a formal contract , they gave full play to their
new theory of agreement in directing the ulterior
stages of the proceeding. But , when they had
proceeded thus far , it was inevitable that they
should proceed farther. The revolution of the
ancient law of Contract was consummated when

the Prætor of some one year announced in his

Edict that he would grant equitable actions upon
Pacts which had never been matured at all into

Contracts, provided only that the Pacts in question

had been founded on a consideration (causa) .
Pacts of this sort are always enforced under the
advanced Roman jurisprudence. The principle
is merely the principle of the Consensual Contract
carried to its proper consequence ; and , in fact ,
if the technical language of the Romans had been
as plastic as their legal theories, these Pacts
enforced by the Prætor would have been styled
new Contracts , new Consensual Contracts. Legal
phraseology is, however, the part of the law which
300 EARLY HISTORY OF CONTRACT [CHAP. IX

is the last to alter, and the Pacts equitably

enforced continued to be designated simply Præ-
torian Pacts . It will be remarked that unless
there were consideration for the Pact, it would
continue nude so far as the new jurisprudence
was concerned ; in order to give it effect, it would
be necessary to convert it by a stipulation into a
Verbal Contract.

The extreme importance of this history of

Contract, as a safeguard against almost innumer-
able delusions , must be my justification for dis-
cussing it at so considerable a length . It gives
a complete account of the march of ideas from
one great landmark of jurisprudence to another.
We begin with the Nexum, in which a Contract
and a Conveyance are blended , and in which the
formalities which accompany the agreement are
even more important than the agreement itself.
From the Nexum we pass to the Stipulation ,
which is a simplified form of the older ceremonial .
The Literal Contract comes next, and here all
formalities are waived, if proof of the agreement
can be supplied from the rigid observances of a
Roman household . In the Real Contract a moral

duty is for the first time recognised , and persons

who have joined or acquiesced in the partial
performance of an engagement are forbidden to
repudiate it on account of defects in form. Lastly,
the Consensual Contracts emerge, in which the
mental attitude of the contractors is solely

regarded, and external circumstances have no

title to notice except as evidence of the inward
undertaking . It is of course uncertain how far

this progress of Roman ideas from a gross to a

CHAP. IX] PROGRESS OF CONTRACT LAW 301

refined conception exemplifies the necessary pro-

gress of human thought on the subject of Contract .
The Contract-law of all other ancient societies
but the Roman is either too scanty to furnish
information , or else is entirely lost ; and modern
jurisprudence is so thoroughly leavened with the
Roman notions that it furnishes us with no
contrasts or parallels from which instruction
can be gleaned . From the absence , however, of
everything violent, marvellous , or unintelligible
in the changes I have described, it may be reason-
ably believed that the history of Ancient Roman
Contracts is, up to a certain point , typical of the
history of this class of legal conceptions in other
ancient societies . But it is only up to a certain
point that the progress of Roman law can be taken
to represent the progress of other systems of
jurisprudence . The theory of Natural law is
exclusively Roman . The notion of the vinculum
juris, so far as my knowledge extends, is exclu-
sively Roman. The many peculiarities of the
mature Roman Law of Contract and Delict which

are traceable to these two ideas , whether singly

or in combination , are therefore among the ex-
clusive products of one particular society . These
later legal conceptions are important, not because
they typify the necessary results of advancing
thought under all conditions, but because they
have exercised perfectly enormous influence on
the intellectual diathesis of the modern world .
I know nothing more wonderful than the
variety of sciences to which Roman law, Roman
Contract-law more particularly, has contributed
modes of thought, courses of reasoning, and a
302 EARLY HISTORY OF CONTRACT (CHAP. IX

technical language . Of the subjects which have

whetted the intellectual appetite of the moderns,
there is scarcely one, except Physics, which has
not been filtered through Roman jurisprudence .
The science of pure Metaphysics had, indeed,
rather a Greek than a Roman parentage, but
Politics , Moral Philosophy, and even Theology,
found in Roman law not only a vehicle of ex-
pression, but a nidus in which some of their pro-
foundest inquiries were nourished into maturity.
For the purpose of accounting for this phenomenon ,
it is not absolutely necessary to discuss the mys
terious relation between words and ideas , or to
explain how it is that the human mind has never
grappled with any subject of thought, unless
it has been provided beforehand with a proper
store of language and with an apparatus of
appropriate logical methods . It is enough to
remark, that, when the philosophical interests of
the Eastern and Western worlds were separated,
the founders of Western thought belonged to
a society which spoke Latin and reflected in
Latin . But in the Western provinces the only
language which retained sufficient precision for
philosophical purposes was the language of Roman
law, which by a singular fortune had preserved
nearly all the purity of the Augustan age, while
vernacular Latin was degenerating into a dialect
of portentous barbarism . And if Roman juris-
prudence supplied the only means of exactness
in speech, still more emphatically did it furnish
the only means of exactness, subtlety , or depth in
thought . For at least three centuries philosophy
and science were without a home in the West ;
CHAP. IX] STATE OF THÔUGHT IN THE EMPIRE 303

and though metaphysics and metaphysical theo-

logy were engrossing the mental energies of
multitudes of Roman subjects , the phraseology

employed in these ardent inquiries was exclusively

Greek, and their theatre was the Eastern half of
the Empire . Sometimes, indeed , the conclusions
of the Eastern disputants became so important
that every man's assent to them, or dissent from
them , had to be recorded , and then the West was
introduced to the results of Eastern controversy ,
which it generally acquiesced in without interest
and without resistance . Meanwhile , one depart-
ment of inquiry, difficult enough for the most
laborious, deep enough for the most subtile ,
delicate enough for the most refined, had never
lost its attractions for the educated classes of the

Western provinces . To the cultivated citizen of

Africa, of Spain , of Gaul, and of Northern Italy, it
was jurisprudence, and jurisprudence only , which
stood in the place of poetry and history, of philo-
sophy and science . So far then from there being

anything mysterious in the palpably legal com-

plexion of the earliest efforts of Western thought,
it would rather be astonishing if it had assumed
any other hue. I can only express my surprise
at the scantiness of the attention which has been

given to the difference between Western ideas

and Eastern, between Western theology and
Eastern, caused by the presence of a new ingre-
dient . It is precisely because the influence of
jurisprudence begins to be powerful that the
foundation of Constantinople and the subsequent
separation of the Western empire from the Eastern
are epochs in philosophical history. But Con-
304 EARLY HISTORY OF CONTRACT (CHAP. 1X

tinental thinkers are doubtless less capable of

appreciating the importance of this crisis by the
very intimacy with which notions derived from

Roman law are mingled up with their everyday

ideas. Englishmen , on the other hand, are blind
to it through the monstrous ignorance to which
they condemn themselves of the most plentiful
source of the stream of modern knowledge , of the
one intellectual result of the Roman civilisation.

At the same time , an Englishman who will be at

the pains to familiarise himself with the classical
Roman law, is perhaps, from the very slightness
of the interest which his countrymen have hitherto
taken in the subject , a better judge than a French-
man or a German of the value of the assertions

I have ventured to make . Anybody who knows

what Roman jurisprudence is, as actually practised
by the Romans, and who will observe in what
characteristics the earliest Western theology and
philosophy differ from the phases of thought
which preceded them, may be safely left to pro-
nounce what was the new element which had

begun to pervade and govern speculation .

The part of Roman law which has had most
extensive influence on foreign subjects of inquiry
has been the law of Obligation, or, what comes
nearly to the same thing, of Contract and Delict.
The Romans themselves were not unaware of
the offices which the copious and malleable
terminology belonging to this part of their system
might be made to discharge , and this is proved by
their employment of the peculiar adjunct quasi
in such expressions as Quasi-Contract and Quasi-
Delict. Quasi," so used, is exclusively a term
CHAP. IX] QUASI-CONTRACT 305

of classification . It has been usual with English

.
critics to identify the Quasi- Contracts with implied
contracts , but this is an error, for implied contracts
are true contracts , which quasi -contracts are not.
In implied contracts, acts and circumstances are
the symbols of the same ingredients which are
symbolised, in express contracts , by words ; and
whether a man employs one set of symbols or
the other must be a matter of indifference so

far as concerns the theory of agreement . But

a Quasi-Contract is not a contract at all . The
commonest sample of the class is the relation
subsisting between two persons , one of whom has
paid money to the other through mistake . The
law, consulting the interests of morality, imposes
an obligation on the receiver to refund , but the
very nature of the transaction indicates that it

is not a contract, inasmuch as the Convention , the

most essential ingredient of Contract, is wanting.
This word " quasi ," prefixed to a term of Roman
law, implies that the conception to which it serves
as an index is connected with the conception with
which the comparison is instituted by a strong
superficial analogy or resemblance . It does not
denote that the two conceptions are the same,
or that they belong to the same genus . On the

contrary, it negatives the notion of an identity

between them ; but it points out that they are
sufficiently similar for one to be classed as the
sequel to the other, and that the phraseology
taken from one department of law may be trans-
ferred to the other, and employed without violent
straining in the statement of rules which would
otherwise be imperfectly expressed .
20
 Y ORY OF CONTRACT
306 EARL HIST [CHAP . IX

It has been shrewdly remarked , that the

confusion between Implied Contracts, which are
true contracts , and Quasi- Contracts, which are not
contracts at all, has much in common with the
famous error which attributed political rights and
duties to an Original Compact between the
governed and the governor. Long before this
theory had clothed itself in definite shape, the
phraseology of Roman contract-law had been

largely drawn upon to describe that reciprocity

of rights and duties which men had always con-
ceived as existing between sovereigns and subjects.
While the world was full of maxims setting forth
with the utmost positiveness the claims of kings
to implicit obedience- maxims which pretended
to have had their origin in the New Testament,
but which were really derived from indelible
recollections of the Cæsarian despotism-the con-
sciousness of correlative rights possessed by the
governed would have been entirely without the
means of expression if the Roman law of Obligation
had not supplied a language capable of shadowing
forth an idea which was as yet imperfectly de-
veloped . The antagonism between the privileges
of kings and their duties to their subjects was
never, I believe , lost sight of since Western history
began, but it had interest for few except speculative
writers so long as feudalism continued in vigour,
for feudalism effectually controlled by express
customs the exorbitant theoretical pretensions of
most European sovereigns . It is notorious , how-
ever, that as soon as the decay of the Feudal
System had thrown the medieval constitutions
out of working order, and when the Reformation
CHAP. IX] SOCIAL COMPACT 307

had discredited the authority of the Pope , the

doctrine of the divine right of Kings rose imme-
diately into an importance which had never before
attended it. The vogue which it obtained entailed
still more constant resort to the phraseology of
Roman law, and a controversy which had origin-
ally worn a theological aspect assumed more and
more the air of a legal disputation . A phenomenon
then appeared which has repeatedly shown itself
in the history of opinion . Just when the argument
for monarchical authority rounded itself into the
definite doctrine of Filmer, the phraseology,
borrowed from the Law of Contract , which had
been used in defence of the rights of subjects ,
crystallised into the theory of an actual original
compact between king and people, a theory which ,
first in English and afterwards, and more particu-
larly, in French hands, expanded into a compre-
hensive explanation of all the phenomena of
society and law. But the only real connection
between political and legal science had consisted
in the last giving to the first the benefit of its
peculiarly plastic terminology . The Roman juris-
prudence of Contract had performed for the
relation of sovereign and subject precisely the
same service which, in a humbler sphere, it
rendered to the relation of persons bound together
by an obligation of " quasi- contract." It had
furnished a body of words and phrases which
approximated with sufficient accuracy to the
ideas which then were from time to time forming
on the subject of political obligation . The doctrine
of an Original Compact can never be put higher
than it is placed by Dr. Whewell, when he suggests
308 EARLY HISTORY OF CONTRACT [CHAP. IX

that, though unsound , " it may be a convenient

form for the expression of moral truths ."
The extensive employment of legal language
on political subjects previously to the invention
of the Original Compact, and the powerful influence
which that assumption has exercised subsequently,
amply account for the plentifulness in political
science of words and conceptions, which were
the exclusive creation of Roman jurisprudence.
Of their plentifulness in Moral Philosophy a
rather different explanation must be given,
inasmuch as ethical writings have laid Roman
law under contribution much more directly than
political speculations, and their authors have
been much more conscious of the extent of their

obligation . In speaking of moral philosophy as

extraordinarily indebted to Roman jurisprudence ,
I must be understood to intend moral philosophy
as understood previously to the break in its
history effected by Kant, that is, as the science
of the rules governing human conduct, of their
proper interpretation , and of the limitations to
which they are subject. Since the rise of the

Critical Philosophy, moral science has almost

wholly lost its older meaning, and, except where
it is preserved under a debased form in the
casuistry still cultivated by Roman Catholic theo-
logians , it seems to be regarded nearly universally
as a branch of ontological inquiry. I do not know
that there is a single contemporary English writer,
with the exception of Dr. Whewell , who under-
stands moral philosophy as it was understood
before it was absorbed by metaphysics and before
the groundwork of its rules came to be a more
CHAP. IX] ETHICS AND ROMAN LAW 309

important consideration than the rules themselves.

So long, however, as ethical science had to do with
the practical regimen of conduct, it was more or
less saturated with Roman law. Like all the

great subjects of modern thought , it was originally

incorporated with theology . The science of Moral
Theology, as it was at first called, and as it is still
designated by the Roman Catholic divines , was
undoubtedly constructed, to the full knowledge
of its authors, by taking principles of conduct
from the system of the Church, and by using
the language and methods of jurisprudence for
their expression and expansion . While this pro-
cess went on, it was inevitable that jurisprudence ,
though merely intended to be the vehicle of
thought, should communicate its colour to the
thought itself. The tinge received through contact
with legal conceptions is perfectly perceptible in
the earliest ethical literature of the modern world,
and it is evident , I think, that the Law of Contract ,
based as it is on the complete reciprocity and
indissoluble connection of rights and duties, has
acted as a wholesome corrective to the predis-
positions of writers who, if left to themselves ,
might have exclusively viewed a moral obligation
as the public duty of a citizen in the Civitas Dei .
But the amount of Roman Law in moral theology
becomes sensibly smaller at the time of its culti-
vation by the great Spanish moralists. Moral
theology, developed by the juridical method of
doctor commenting on doctor, provided itself
with a phraseology of its own ; and Aristotelian
peculiarities of reasoning and expression , imbibed
doubtless in great part from the Disputations on
 310 EARLY HISTORY OF CONTRACT [CHAP. IX

Morals in the academical schools, take the place

of that special turn of thought and speech which
can never be mistaken by any person conversant
with the Roman law. If the credit of the Spanish
school of moral theologians had continued , the
juridical ingredient in ethical science would have
been insignificant, but the use made of their
conclusions by the next generation of Roman
Catholic writers on these subjects almost entirely
destroyed their influence . Moral Theology, de-
graded into Casuistry, lost all interest for the
leaders of European speculation ; and the new
science of Moral Philosophy, which was entirely
in the hands of the Protestants , swerved greatly
aside from the path which the moral theologians
had followed. The effect was vastly to increase
the influence of Roman law on ethical inquiry.
Shortly after the Reformation, we find
two great schools of thought dividing this class
of subjects between them. The most influential
of the two was at first the sect or school known

to us as the Casuists, all of them in spiritual

communion with the Roman Catholic Church,
and nearly all of them affiliated to one or other
of her religious orders . On the other side were
a body of writers connected with each other by a
common intellectual descent from the great author
of the treatise ' De Jure Belli et Pacis ,' Hugo
Grotius. Almost all of the latter were adherents
of the Reformation ; and though it cannot be said
that they were formally and avowedly at conflict

The passage quoted is transcribed, with slight alterations,

from a paper contributed by the author to the " Cambridge
Essays " for 1856.
CHAP. IX] GROTIUS AND HIS SCHOOL 3II

with the Casuists, the origin and objects of their

system were nevertheless essentially different from
those of Casuistry . It is necessary to call attention
to this difference , because it involves the question
of the influence of Roman law on that department
of thought with which both systems are concerned .
The book of Grotius, though it touches questions
of pure Ethics in every page, and though it is
the parent immediate or remote of innumerable
volumes of formal morality, is not, as is well
known, a professed treatise on Moral Philosophy ;
it is an attempt to determine the Law of Nature,
or Natural Law. Now, without entering upon

the question whether the conception of a Law

Natural be not exclusively a creation of the
Roman jurisconsults , we may lay down that,
even on the admission of Grotius himself, the
dicta of the Roman jurisprudence as to what
parts of known positive law must be taken to
be parts of the Law of Nature , are, if not infallible ,
to be received at all events with the profoundest
respect . Hence the system of Grotius is impli-
cated with Roman law at its very foundation ,
and this connection rendered inevitable - what

the legal training of the writer would perhaps

have entailed without it-the free employment
in every paragraph of technical phraseology, and
of modes of reasoning, defining, and illustrating ,
which must sometimes conceal the sense , and
almost always the force and cogency , of the argu-
ment from the reader who is unfamiliar with the
sources whence they have been derived . On the
other hand, Casuistry borrows little from Roman
law, and the views of morality contended for
 312 EARLY HISTORY OF CONTRACT (CHAP. IX

have nothing whatever in common with the

undertaking of Grotius. All that philosophy of
right and wrong which has become famous, or
infamous , under the name of Casuistry, had its
origin in the distinction between Mortal and
Venial sin . A natural anxiety to escape the

awful consequences of determining a particular

act to be mortally sinful, and a desire, equally
intelligible, to assist the Roman Catholic Church
in its conflict with Protestantism by disburthening
it of an inconvenient theory, were the motives
which impelled the authors of the Casuistical
philosophy to the invention of an elaborate system
of criteria, intended to remove immoral actions,
in as many cases as possible, out of the category
of mortal offences, and to stamp them as venial
sins . The fate of this experiment is matter of
ordinary history. We know that the distinctions
of Casuistry, by enabling the priesthood to adjust
spiritual control to all the varieties of human
character, did really confer on it an influence
with princes, statesmen, and generals, unheard
of in the ages before the Reformation, and did
really contribute largely to that great reaction
which checked and narrowed the first successes
of Protestantism . But beginning in the attempt ,
not to establish, but to evade- not to discover a
principle, but to escape a postulate- not to settle
the nature of right and wrong, but to determine
what was not wrong of a particular nature,—
Casuistry went on with its dexterous refinements
till it ended in so attenuating the moral features
of actions, and so belying the moral instincts of
our being, that at length the conscience of mankind
CHAP. IX] ETHICS AND ROMAN LAW 313

rose suddenly in revolt against it, and consigned

to one common ruin the system and its doctors .
The blow, long pending, was finally struck in
the ' Provincial Letters ' of Pascal, and since
the appearance of those memorable Papers, no
moralist of the smallest influence or credit has

ever avowedly conducted his speculations in the

footsteps of the Casuists. The whole field of
ethical science was thus left at the exclusive
command of the writers who followed Grotius ;
and it still exhibits in an extraordinary degree
the traces of that entanglement with Roman law
which is sometimes imputed as a fault, and
sometimes the highest of its recommendations,
to the Grotian theory. Many inquiriers since
Grotius's day have modified his principles , and
many, of course, since the rise of the Critical

Philosophy, have quite deserted them ; but even

those who have departed most widely from his
fundamental assumptions have inherited much of
his method of statement , of his train of thought ,
and of his mode of illustration ; and these have
little meaning and no point to the person ignorant
of Roman jurisprudence ."
I have already said that, with the exception
of the physical sciences, there is no walk of
knowledge which has been so slightly affected by
Roman law as Metaphysics . The reason is that
discussion on metaphysical subjects has always
been conducted in Greek, first in pure Greek, and
afterwards in a dialect of Latin expressly con-
structed to give expression to Greek conceptions.
The modern languages have only been fitted to
metaphysical inquiries by adopting this Latin
 314 EARLY HISTORY OF CONTRACT [CHAP. IX

dialect, or by imitating the process which was

originally followed in its formation . The source
of the phraseology which has been always employed
for metaphysical discussion in modern times was
the Latin translations of Aristotle, in which,
whether derived or not from Arabic versions,

the plan of the translator was not to seek for

analogous expressions in any part of Latin litera-
ture, but to construct anew from Latin roots
a set of phrases equal to the expression of Greek
philosophical ideas. Over such a process the
terminology of Roman law can have exercised
little influence ; at most, a few Latin law terms
in a transmuted shape have made their way into
metaphysical language. At the same time it is
worthy of remark that whenever the problems
of metaphysics are those which have been most
strongly agitated in Western Europe , the thought,
if not the language , betrays a legal parentage.
Few things in the history of speculation are more
impressive than the fact that no Greek-speaking
people has ever felt itself seriously perplexed by
the great question of Free-will and Necessity. I
do not pretend to offer any summary explanation
of this, but it does not seem an irrelevant suggestion
that neither the Greeks, nor any society speaking
and thinking in their language, ever showed the
smallest capacity for producing a philosophy of
law. Legal science is a Roman creation , and the
problem of Free-will arises when we contemplate
a metaphysical conception under a legal aspect.
How came it to be a question whether invariable
sequence was identical with necessary connection ?
I can only say that the tendency of Roman law,
CHAP. IX] THEOLOGY AND ROMAN LAW 315

which became stronger as it advanced, was to

look upon legal consequences as united to legal
causes by an inexorable necessity, a tendency
most markedly exemplified in the definition of
Obligation which I have repeatedly cited , " Juris
vinculum quo necessitate adstringimur alicujus
solvendæ rei."

But the problem of Free-will was theological

before it became philosophical , and , if its terms
have been affected by jurisprudence, it will be
because Jurisprudence has made itself felt in
Theology. The great point of inquiry which is
here suggested has never been satisfactorily
elucidated . What has to be determined , is

whether jurisprudence has ever served as the

medium through which theological principles have
been viewed ; whether, by supplying a peculiar
language, a peculiar mode of reasoning, and a
peculiar solution of many of the problems of life ,
it has ever opened new channels in which theolo-
gical speculation could flow out and expand itself.
For the purpose of giving an answer it is necessary
to recollect what is already agreed upon by the
best writers as to the intellectual food which
theology first assimilated . It is conceded on all
sides that the earliest language of the Christian
Church was Greek, and that the problems to
which it first addressed itself were those for which

Greek philosophy in its later forms had prepared

the way. Greek metaphysical literature contained
the sole stock of words and ideas out of which the
human mind could provide itself with the means
of engaging in the profound controversies as
to the Divine Persons, the Divine Substance, and
 Y OF CONTRACT
316 EARLY HISTOR [CHAP. IX

the Divine Natures . The Latin language and the

meagre Latin philosophy were quite unequal to
the undertaking, and accordingly the Western or
Latin-speaking provinces of the Empire adopted
the conclusions of the East without disputing
or reviewing them . " Latin Christianity ," says
Dean Milman , " accepted the creed which its
narrow and barren vocabulary could hardly
express in adequate terms. Yet, throughout,
the adhesion of Rome and the West was a passive
acquiescence in the dogmatic system which had
been wrought out by the profounder theology
of the Eastern divines, rather than a vigorous
and original examination on her part of those
mysteries .The Latin Church was the scholar
as well as the loyal partisan of Athanasius. "
But when the separation of East and West became
wider, and the Latin-speaking Western Empire
began to live with an intellectual life of its own,
its deference to the East was all at once exchanged
for the agitation of a number of questions entirely
foreign to Eastern speculation . " While Greek
theology (Milman , ' Latin Christianity,' Preface,
5) went on defining with still more exquisite
subtlety the Godhead and the nature of Christ "
" while the interminable controversy still
lengthened out and cast forth sect after sect from
the enfeebled community "-the Western Church
threw itself with passionate ardour into a new
order of disputes, the same which from those
days to this have never lost their interest for any
family of mankind at any time included in the
Latin communion . The nature of Sin and its
transmission by inheritance-the debt owed by
CHAP. IX] ROMAN LAW IN THE WEST 317

man and its vicarious satisfaction-the necessity

and sufficiency of the Atonement - above all the
apparent antagonism between Free-will and the
Divine Providence- these were the points which
the West began to debate as ardently as ever
the East had discussed the articles of its more

special creed. Why is it then that on the two

sides of the line which divides the Greek-speaking
from the Latin-speaking provinces there lie two
classes of theological problems so strikingly dif-
ferent from one another ? The historians of the

Church have come close upon the solution when

they remark that the new problems were more
66
practical," less absolutely speculative, than
those which had torn Eastern Christianity asunder,
but none of them, so far as I am aware , has quite
reached it . I affirm without hesitation that the
difference between the two theological systems
is accounted for by the fact that, in passing from
the East to the West , theological speculation had
passed from a climate of Greek metaphysics to
a climate of Roman law. .
For some centuries
before these controversies rose into overwhelming
importance , all the intellectual activity of the
Western Romans had been expended on juris-
prudence exclusively. They had been occupied
in applying a peculiar set of principles to all the
combinations in which the circumstances of life
are capable of being arranged . No foreign pursuit
or taste called off their attention from this en-

grossing occupation , and for carrying it on they

possessed a vocabulary as accurate as it was
copious, a strict method of reasoning , a stock of
general propositions on conduct more or less
318 EARLY HISTORY OF CONTRACT [CHAP . IX

verified by experience , and a rigid moral philo-

sophy. It was impossible that they should not
select from the questions indicated by the Christian
records those which had some affinity with the
order of speculations to which they were accus-
tomed, and that their manner of dealing with them
should not borrow something from their forensic
habits . Almost everybody who has knowledge
enough of Roman law to appreciate the Roman
penal system , the Roman theory of the obligations
established by Contract or Delict, the Roman
view of Debts and of the modes of incurring ,
extinguishing, and transmitting them , the Roman
notion of the continuance of individual existence
by Universal Succession , may be trusted to say
whence arose the frame of mind to which the
problems of Western theology proved so congenial,
whence came the phraseology in which these
problems were stated, and whence the description
of reasoning employed in their solution . It must
only be recollected that the Roman law which
had worked itself into Western thought was
neither the archaic system of the ancient city,
nor the pruned and curtailed jurisprudence of the
Byzantine Emperors ; still less , of course, was it
the mass of rules, nearly buried in a parasitical
overgrowth of modern speculative doctrine, which
passes by the name of Modern Civil Law. I
speak only of that philosophy of jurisprudence,
wrought out by the great juridical thinkers of the
Antonine age, which may still be partially re-
produced from the Pandects of Justinian , a system
to which few faults can be attributed except
perhaps that it aimed at a higher degree of
CHAP. IX] CAUSES OF IMPROVEMENT 319

elegance, certainty, and precision than human

affairs will permit to the limits within which
human law seeks to confine them .

It is a singular result of that ignorance of

Roman law which Englishmen readily confess , and
of which they are sometimes not ashamed to boast,
that many English writers of note and credit
have been led by it to put forward the most un-
tenable of paradoxes concerning the condition
of human intellect during the Roman empire .
It has been constantly asserted, as unhesitatingly
as if there were no temerity in advancing the
proposition , that from the close of the Augustan
era to the general awakening of interest on the
points of the Christian faith , the mental energies
of the civilised world were smitten with a paralysis .
Now there are two subjects of thought- the only
two perhaps with the exception of physical science
—which are able to give employment to all the
powers and capacities which the mind possesses .
One of them is Metaphysical inquiry , which knows
no limits so long as the mind is satisfied to work
on itself ; the other is Law, which is as extensive

as the concerns of mankind . It happens that,

during the very period indicated, the Greek-
speaking provinces were devoted to one , the Latin-
speaking provinces to the other of these studies .
I say nothing of the fruits of speculation in
Alexandria and the East , but I confidently affirm
that Rome and the West had an occupation in
hand fully capable of compensating them for the
absence of every other mental exercise , and I
add that the results achieved, so far as we know
them, were not unworthy of the continuous and
320 EARLY HISTORY OF CONTRACT [CHAP. IX

exclusive labour bestowed on producing them.

Nobody except a professional lawyer is perhaps
in a position completely to understand how much
of the intellectual strength of individuals Law
is capable of absorbing, but a layman has no
difficulty in comprehending why it was that an
unusual share of the collective intellect of Rome

was engrossed by jurisprudence . " The pro-

ficiency of a given community in jurisprudence
depends in the long run on the same conditions
as its progress in any other line of inquiry ; and
the chief of these are the proportion of the national
intellect devoted to it, and the length of time
during which it is so devoted . Now, a combina-
tion of all the causes, direct and indirect, which
contribute to the advancing and perfecting of a
science, continued to operate on the jurisprudence
of Rome through the entire space between the
Twelve Tables and the severance of the two

Empires, and that not irregularly or at intervals ,

but in steadily increasing force and constantly
augmenting number. We should reflect that the
earliest intellectual exercise to which a young

nation devotes itself is the study of its laws . As

soon as the mind makes its first conscious efforts

towards generalisation , the concerns of every-day

life are the first to press for inclusion within
general rules and comprehensive formulas. The
popularity of the pursuit on which all the energies
of the young commonwealth are bent is at the
outset unbounded ; but it ceases in time. The
monopoly of mind by law is broken down . The

crowd at the morning audience of the great

* " Cambridge Essays, " 1856.
 CHAP. IX) CAUSES OF IMPROVEMENT
321

Roman jurisconsult lessens . The students

are
counted by hundreds instead of thousands in the
English Inns of Court. Art , Literature , Science ,
and Politics claim their share of the national

intellect ; and the practice of jurisprudence is

confined within the circle of a profession , never
indeed limited or insignificant, but attracted as
much by the rewards as by the intrinsic recom-
mendations of their science . This succession of
changes exhibited itself even more strikingly at
Rome than in England . To the close of the
Republic the law was the sole field for all ability
except the special talent of a capacity for general-
ship. But a new stage of intellectual progress
began with the Augustan age , as it did with our
own Elizabethan era. We all know what were its
achievements in poetry and prose ; but there
are some indications , it should be remarked, that ,
besides its efflorescence in ornamental literature,
it was on the eve of throwing out new aptitudes
for conquest in physical science . Here , however,
is the point at which the history of mind in the
Roman States ceases to be parallel to the routes
which mental progress has since then pursued .
The brief span of Roman literature, strictly so
called, was suddenly closed under a variety of
influences, which, though they may partially be
traced, it would be improper in this place to
analyse. Ancient intellect was forcibly thrust
back into its old courses, and law again became
no less exclusively the proper sphere for talent
than it had been in the days when the Romans
despised philosophy and poetry as the toys of a
childish race .
Of what nature were the external
21
322 EARLY HISTORY OF CONTRACT [CHAP. IX

inducements which, during the Imperial period,

tended to draw a man of inherent capacity to the

pursuits of the jurisconsult may best be under-
stood by considering the option which was prac-
tically before him in his choice of a profession.
He might become a teacher of rhetoric, a com-
mander of frontier-posts , or a professional writer
of panegyrics . The only other walk of active
life which was open to him was the practice of
the law. Through that lay the approach to wealth,
to fame, to office , to the council-chamber of the
monarch-it may be to the very throne itself."
The premium on the study of jurisprudence
was so enormous that there were schools of law
in every part of the Empire, even in the very
domain of Metaphysics. But, though the transfer
of the seat of empire to Byzantium gave a per-
ceptible impetus to its cultivation in the East,
jurisprudence never dethroned the pursuits which
there competed with it . Its language was Latin,
an exotic dialect in the Eastern half of the Empire.
It is only of the West that we can lay down that
law was not only the mental food of the ambitious
and aspiring, but the sole aliment of all intellectual
activity. Greek philosophy had never been more
than a transient fashionable taste with the edu-
cated class of Rome itself, and when the new
Eastern capital had been created , and the Empire
subsequently divided into two, the divorce of the
Western provinces from Greek speculation, and
their exclusive devotion to jurisprudence, became
more decided than ever. As soon then as they
ceased to sit at the feet of the Greeks and began
to ponder out a theology of their own , the theology
CHAP. IX] ROMAN LAW IN WESTERN THEOLOGY 323

proved to be permeated with forensic ideas and

couched in a forensic phraseology. It is certain
that this substratum of law in Western theology
lies exceedingly deep . A new set of Greek
theories , the Aristotelian philosophy, made their
way afterwards into the West , and almost entirely
buried its indigenous doctrines . But when at
the Reformation it partially shook itself free from
their influence, it instantly supplied their place
with Law. It is difficult to say whether the
religious system of Calvin or the religious system
of the Arminians has the more markedly legal
character.
The vast influence of this specific jurisprudence
of Contract produced by the Romans upon the
corresponding department of modern Law belongs
rather to the history of mature jurisprudence than
to a treatise like the present . It did not make
itself felt till the school of Bologna founded the
legal science of modern Europe . But the fact that
the Romans, before their Empire fell, had so fully
developed the conception of Contract becomes
of importance at a much earlier period than this .
Feudalism , I have repeatedly asserted , was a
compound of archaic barbarian usage with Roman
law ; no other explanation of it is tenable, or
even intelligible . The earliest social forms of the
feudal period differ in little from the ordinary
associations in which the men of primitive civilisa-
tions are everywhere seen united . A Fief was
an organically complete brotherhood of associates

whose proprietary and personal rights were in-

extricably blended together. It had much in
common with an Indian Village Community and
324 EARLY HISTORY OF CONTRACT [CHAP. IX

much in common with a Highland clan . But

still it presents some phenomena which we never
find in the associations which are spontaneously
formed by beginners in civilisation . True archaic
communities are held together not by express

rules , but by sentiment , or, we should perhaps

say, by instinct ; and new comers into the brother-
hood are brought within the range of this instinct
by falsely pretending to share in the blood-

relationship from which it naturally springs.

But the earliest feudal communities were neither

bound together by mere sentiment nor recruited

by a fiction. The tie which united them was
Contract, and they obtained new associates by
contracting with them. The relation of the lord
to the vassals had originally been settled by
express engagement, and a person wishing to
engraft himself on the brotherhood by commen-
dation or infeudation came to a distinct under-
standing as to the conditions on which he

was to be admitted . It is therefore the sphere

occupied in them by Contract which principally
distinguishes the feudal institutions from the un-
adulterated usages of primitive races . The lord

had many of the characteristics of a patriarchal

chieftain, but his prerogative was limited by a
variety of settled customs traceable to the express
conditions which had been agreed upon when the
infeudation took place . Hence flow the chief
differences which forbid us to class the feudal
societies with true archaic communities . They
were much more durable and much more various ;
more durable , because express rules are less
destructible than instinctive habits , and more
CHAP. IX] CONTRACT LAW AND FEUDALISM 325

various, because the contracts on which they

were founded were adjusted to the minutest
circumstances and wishes of the persons who
surrendered or granted away their lands . This
last consideration may serve to indicate how
greatly the vulgar opinions current among us
as to the origin of modern society stand in need
of revision . It is often said that the irregular
and various contour of modern civilisation is

due to the exuberant and erratic genius of the

Germanic races , and it is often contrasted with the
dull routine of the Roman Empire . The truth
is that the Empire bequeathed to modern society
the legal conception to which all this irregularity
is attributable ; if the customs and institutions
of barbarians have one characteristic more striking
than another, it is their extreme uniformity.
 CHAPTER X

THE EARLY HISTORY OF DELICT AND CRIME

THE Teutonic Codes, including those of our Anglo-

Saxon ancestors, are the only bodies of archaic
secular law which have come down to us in such a
state that we can form an exact notion of their

original dimensions . Although the extant frag-

ments of Roman and Hellenic codes suffice to
prove to us their general character, there does
not remain enough of them for us to be quite
sure of their precise magnitude or of the proportion
of their parts to each other. But still on the whole |
all the known collections of ancient law are
characterised by a feature which broadly dis-
tinguishes them from systems of mature juris-
prudence . The proportion of criminal to civil
law is exceedingly different. In the German
codes, the civil part of the law has trifling dimen-
sions as compared with the criminal. The tradi-
tions which speak of the sanguinary penalties
inflicted by the code of Draco seem to indicate
that it had the same characteristic . In the
Twelve Tables alone, produced by a society of
greater legal genius and at first of gentler manners,
the civil law has something like its modern
precedence ; but the relative amount of space
given to the modes of redressing wrong, though
not enormous, appears to have been large. It
326
CHAP. X] PENAL LAW IN ANCIENT CODES 327

may be laid down , I think, that the more archaic

the code, the fuller and the minuter is its penal
legislation . The phenomenon has often been
observed, and has been explained , no doubt to
a great extent correctly, by the violence habitual
to the communities which for the first time reduced

their laws to writing. The legislator, it is said ,

proportioned the divisions of his work to the
frequency of a certain class of incidents in bar-
barian life . I imagine, however, that this account
is not quite complete . It should be recollected
that the comparative barrenness of civil law in
archaic collections is consistent with those other

characteristics of ancient jurisprudence which

have been discussed in this treatise . Nine-tenths

of the civil part of the law practised by civilised

societies are made up of the Law of Persons , of
the Law of Property and of Inheritance, and of
the Law of Contract . But it is plain that all these
provinces of jurisprudence must shrink within
narrower boundaries, the nearer we make our
approaches to the infancy of social brotherhood .
The Law of Persons, which is nothing else than
the Law of Status, will be restricted to the scantiest
limits as long as all forms of status are merged
in common subjection to Paternal Power, as long
as the wife has no rights against her Husband,
the Son none against his Father, and the infant
Ward none against the Agnates who are his
Guardians. Similarly, the rules relating to Pro-
perty and Succession can never be plentiful ,
so long as land and goods devolve within the
family, and, if distributed at all, are distributed
inside its circle . But the greatest gap in ancient
 328 EARLY HISTORY OF DELICT AND CRIME [CHAP.

civil law will always be caused by the absence

of Contract, which some archaic codes do not
mention at all, while others significantly attest
the immaturity of the moral notions on which
Contract depends by supplying its place with an
elaborate jurisprudence of Oaths . There are no
corresponding reasons for the poverty of penal
law, and accordingly, even if it be hazardous to
pronounce that the childhood of nations is always
a period of ungoverned violence, we shall still
be able to understand why the modern relation
of criminal law to civil should be inverted in
ancient codes .

I have spoken of primitive jurisprudence as

giving to criminal law a priority unknown in a
later age. The expression has been used for
convenience' sake, but in fact the inspection of
ancient codes shows that the law which they

exhibit in unusual quantities is not true criminal

law. All civilised systems agree in drawing a
distinction between offences against the State or
Community and offences against the Individual,
and the two classes of injuries, thus kept apart,
I may here, without pretending that the terms
have always been employed consistently in juris-
prudence, call Crimes and Wrongs, crimina and
delicta. Now the penal Law of ancient com-
munities is not the law of Crimes ; it is the law

of Wrongs, or, to use the English technical word,

of Torts . The person injured proceeds against
the wrong-doer by an ordinary civil action, and
recovers compensation in the shape of money-
damages if he succeeds . If the Commentaries
of Gaius be opened at the place where the writer
CHAP. X] CRIMES AND WRONGS 329

treats of the penal jurisprudence founded on the

Twelve Tables, it will be seen that at the head of
the civil wrongs recognised by the Roman law
stood Furtum or Theft. Offences which we are
accustomed to regard exclusively as crimes are
exclusively treated as torts , and not theft only,
but assault and violent robbery, are associated
by the jurisconsult with trespass, libel , and
slander. All alike gave rise to an Obligation or
vinculum juris, and were all requited by a payment
of money. This peculiarity, however, is most
strongly brought out in the consolidated Laws
of the Germanic tribes. Without an exception,
they describe an immense system of money
compensations for homicide, and with few ex-
ceptions, as large a scheme of compensation for
minor injuries . " Under Anglo- Saxon law," writes
Mr. Kemble (" Anglo - Saxons ," i . 177), " a sum was
placed on the life of every free man, according
to his rank, and a corresponding sum on every
wound that could be inflicted on his person, for
nearly every injury that could be done to his

civil rights , honour, or peace ; the sum being

aggravated according to adventitious circum-
stances ." These compositions are evidently re-

garded as a valuable source of income ; highly

complex rules regulate the title to them and the

responsibility for them ; and , as I have already

had occasion to state, they often follow a very
peculiar line of devolution , if they have not been
acquitted at the decease of the person to whom
they belong. If therefore the criterion of a
delict, wrong, or tort be that the person who suffers
it, and not the State , is conceived to be wronged,
 330 EARLY HISTORY OF DELICT AND CRIME [CHAP. X

it may be asserted that in the infancy of juris-

prudence the citizen depends for protection against
violence or fraud not on the Law of Crime but on
the Law of Tort .

Torts then are copiously enlarged upon in

primitive jurisprudence . It must be added that
Sins are known to it also . Of the Teutonic codes

it is almost unnecessary to make this assertion,

because those codes, in the form in which we have
received them , were compiled or recast by Christian
legislators. But it is also true that non-Christian
bodies of archaic law entail penal consequences
on certain classes of acts and on certain classes
of omissions, as being violations of divine pre-
scriptions and commands. The law administered
at Athens by the Senate of Areopagus was probably
a special religious code , and at Rome, apparently
from a very early period, the Pontifical juris-
prudence punished adultery, sacrilege, and perhaps
murder. There were therefore in the Athenian

and in the Roman States laws punishing sins.

There were also laws punishing torts . The con-
ception of offence against God produced the first
class or ordinances ; the conception of offence
against one's neighbour
produced the second ;
but the idea of offence against the State or aggre-
gate community did not at first produce a true
criminal jurisprudence .

Yet it is not to be supposed that a conception

so simple and elementary as that of wrong done
to the State was wanting in any primitive society.
It seems rather that the very distinctness with
which this conception is realised is the true cause
which at first prevents the growth of a criminal
CHAP. X] CONCEPTION OF CRIME 331

law. At all events, when the Roman community

conceived itself to be injured, the analogy of a
personal wrong received was carried out to its
consequences with absolute literalness, and the
State avenged itself by a single act on the
individual wrong-doer . The result was that , in
the infancy of the commonwealth, every offence
vitally touching its security or its interests was
punished by a separate enactment of the legis-
lature .And this is the earliest conception of a
crimen or Crime-an act involving such high
issues that the State , instead of leaving its cognis-
ance to the civil tribunal or the religious court,

directed a special law or privilegium against the

perpetrator. Every indictment therefore took

the form of a bill of pains and penalties , and the

trial of a criminal was a proceeding wholly extra-
ordinary, wholly irregular, wholly independent
of settled rules and fixed conditions . Conse-
quently, both for the reason that the tribunal
dispensing justice was the sovereign State itself
and also for the reason that no classification

of the acts prescribed or forbidden was possible,

there was not at this epoch any Law of Crimes,
any criminal jurisprudence. The procedure was
identical with the forms of passing an ordinary
statute ; it was set in motion by the same persons
and conducted with precisely the same solemnities .
And it is to be observed that, when a regular
criminal law with an apparatus of Courts and
officers for its administration had afterwards come

into being, the old procedure, as might be supposed

from its conformity with theory, still in strictness
remained practicable ; and, much as resort to
332 EARLY HISTORY OF DELICT AND CRIME [CHAP. X

such an expedient was discredited , the people

of Rome always retained the power of punishing
by a special law offences against its majesty.
The classical scholar does not require to be
reminded that in exactly the same manner the
Athenian Bill of Pains and Penalties, or εἰσαγγελία,

survived the establishment of regular tribunals .

It is known too that when the freemen of the
Teutonic races assembled for legislation , they also
claimed authority to punish offences of peculiar
blackness or perpetrated by criminals of exalted
station . Of this nature was the criminal juris-
diction of the Anglo-Saxon Witenagemot .
It may be thought that the difference which I
have asserted to exist between the ancient and

modern view of penal law has only a verbal exist-

ence. The community, it may be said, besides

interposing to punish crimes legislatively, has from

the earliest times interfered by its tribunals to
compel the wrong-doer to compound for his wrong,
and if it does this, it must always have supposed
that in some way it was injured through his
offence. But , however rigorous this inference may
seem to us nowadays, it is very doubtful whether
it was actually drawn by the men of primitive
antiquity. How little the notion of injury to the
community had to do with the earliest inter-
ferences of the State through its tribunals, is shown
by the curious circumstances that in the original
administration of justice, the proceedings were a
close imitation of the series of acts which were

likely to be gone through in private life by persons

who were disputing, but who afterwards suffered

their quarrel to be appeased . The magistrate

CHAP, X] THE ROMAN LEGIS ACTIO 333

carefully simulated the demeanour of a private

arbitrator casually called in .
In order to show that this statement is not a
mere fanciful conceit , I will produce the evidence
on which it rests . Very far the most ancient
judicial proceeding known to us is the Legis Actio
Sacramenti of the Romans , out of which all the
later Roman Law of Actions may be proved to
have grown . Gaius carefully describes its cere-
monial. Unmeaning and grotesque as it appears
at first sight, a little attention enables us to
decipher and interpret it .
The subject of litigation is supposed to be in
Court. If it is movable , it is actually there . If
it be immovable, a fragment or sample of it is
brought in its place ; land, for instance , is repre-
sented by a clod, a house by a single brick. In the
example selected by Gaius , the suit is for a slave .
The proceeding begins by the plaintiff's advancing
with a rod, which, as Gaius expressly tells , sym-
bolised a spear. He lays hold of the slave and
asserts a right to him with the words, “ Hunc ego
hominem ex Jure Quiritium meum esse dico secun-
dum suam causam sicut dixi " ; and then saying,
" Ecce tibi Vindictam imposui ," he touches him
with the spear. The defendant goes through the
same series of acts and gestures . On this the
Prætor intervenes, and bids the litigants relax
their hold, " Mittite ambo hominem." They obey,
and the plaintiff demands from the defendant the
reason of his interference, " Postulo anne dicas quâ
ex causâ vindicaveris ," a question which is replied
to by a fresh assertion of right , " Jus peregi sicut
vindictam imposui ." On this, the first claimant
334 EARLY HISTORY OF DELICT AND CRIME (CHAP. X

offers to stake a sum of money , called a Sacra-

mentum, on the justice of his own case, " Quando
tu injuriâ provocasti , D æris Sacramento te provoco ,"
and the defendant, in the phrase, " Similiter ego
te," accepts the wager. The subsequent proceed-
ings were no longer of a formal kind, but it is to
be observed that the Prætor took security for the
Sacramentum , which always went into the coffers
of the State .

Such was the necessary preface of every ancient

Roman suit. It is impossible , I think, to refuse
assent to the suggestion of those who see in it
a dramatisation of the origin of Justice . Two
armed men are wrangling about some disputed

property. The Prætor, vir pietate gravis , happens

to be going by and interposes to stop the contest .
The disputants state their case to him , and agree
that he shall arbitrate between them, it being
arranged that the loser, besides resigning the
subject of the quarrel, shall pay a sum of money
to the umpire as remuneration for his trouble and
loss of time. This interpretation would be less
plausible than it is, were it not that, by a sur-
prising coincidence , the ceremony described by
Gaius as the imperative course of proceeding in
a Legis Actio is substantially the same with one
of the two subjects which the God Hephæstus is
described by Homer as moulding into the First
Compartment of the Shield of Achilles. In the
Homeric trial- scene, the dispute, as if expressly
intended to bring out the characteristics of
primitive society , is not about property, but about
the composition for a homicide. One person
asserts that he has paid it , the other that he has
CHAP. X] ANCIENT VIEW OF PROCEDURE 335

never received it . The point of detail, however ,

which stamps the picture as the counterpart of
the archaic Roman practice is the reward designed
for the judges. Two talents of gold lie in the
middle , to be given to him who shall explain the
grounds of the decision most to the satisfaction
of the audience . The magnitude of this sum as
compared with the trifling amount of the Sacra-
mentum seems to me indicative of the difference

between fluctuating usage and usage consolidated

into law. The scene introduced by the poet as a
striking and characteristic, but still only occa-
sional , feature of city life in the heroic age has
stiffened, at the opening of the history of civil
process, into the regular, ordinary formalities of
a lawsuit. It is natural therefore that in the

Legis Actio the remuneration of the Judge should

be reduced to a reasonable sum , and that, instead
of being adjudged to one of a number of arbitrators
by popular acclamation, it should be paid as a
matter of course to the State which the Prætor
represents . But that the incidents described so
vividly by Homer, and by Gaius with even more
than the usual crudity of technical language, have
substantially the same meaning, I cannot doubt ;
and in confirmation of this view it may be added
that many observers of the earliest judicial usages

of modern Europe have remarked that the fines

inflicted by Courts on offenders were originally
sacramenta. The State did not take from the
defendant a composition for any wrong supposed
to be done to itself, but claimed a share in the
compensation awarded to the plaintiff simply as
the fair price of its time and trouble. Mr. Kemble
336 EARLY HISTORY OF DELICT AND CRIME (CHAP. X

expressly assigns this

character to the Anglo-
Saxon bannum or fredum .
Ancient law furnishes other proofs that the
earliest administrators of justice simulated the
probable acts of persons engaged in a private
quarrel . In settling the damages to be awarded ,
they took as their guide the measure of vengeance
likely to be exacted by an aggrieved person under
the circumstances of the case . This is the true

explanation of the very different penalties imposed

by ancient law on offenders caught in the act
or soon after it and on offenders detected after
considerable delay. Some strange exemplifica-

tions of this peculiarity are supplied by the old

Roman law of Theft. The laws of the Twelve
Tables seem to have divided Thefts into Manifest
and Non-Manifest, and to have allotted extra-
ordinarily different penalties to the offence accord-
ing as it fell under one head or the other. The

Manifest Thief was he who was caught within the

house in which he had been pilfering, or who was
taken while making off to a place of safety with
the stolen goods ; the Twelve Tables condemned
him to be put to death if he were already a slave,
and if he were a freeman, they made him the
bondsman of the owner of the property. The
Non-Manifest Thief was he who was detected
under any other circumstances than those de-
scribed ; and the old code simply directed that
an offender of this sort should refund double the
value of what he had stolen . In Gaius's day the
excessive severity of the Twelve Tables to the
Manifest Thief had naturally been much mitigated,
but the law still maintained the old principle by
CHAP. X] OLD ROMAN LAW OF THEFT 337

mulcting him in fourfold the value of the stolen

goods , while the Non-Manifest Thief still continued
to pay merely the double. The ancient lawgiver
doubtless considered that the injured proprietor ,
if left to himself, would inflict a very different
punishment when his blood was hot from that
with which he would be satisfied when the Thief
was detected after a considerable interval ; and to
this calculation the legal scale of penalties was
adjusted . The principle is precisely the same as
that followed in the Anglo- Saxon and other
Germanic codes , when they suffer a thief chased
down and caught with the booty to be hanged or
decapitated on the spot, while they exact the full
penalties of homicide from anybody who kills him
after the pursuit has been intermitted . These
archaic distinctions bring home to us very forcibly
the distance of a refined from a rude jurisprudence .
The modern administrator of justice has con-
fessedly one of his hardest tasks before him when
he undertakes to discriminate between the degrees
of criminality which belong to offences falling
within the same technical description . It is
always easy to say that a man is guilty of man-
slaughter, larceny, or bigamy, but it is often most
difficult to pronounce what extent of moral guilt
he has incurred, and consequently what measure
of punishment he has deserved . There is hardly
any perplexity in casuistry, or in the analysis of
motive, which we may not be called upon to
confront, if we attempt to settle such a point with
precision ; and accordingly the law of our day
shows an increasing tendency to abstain as much
as possible from laying down positive rules on the
22
338 EARLY HISTORY OF DELICT AND CRIME (CHAP. X

subject. In France , the jury is left to decide

whether the offence which it finds committed has
been attended by extenuating circumstances ; in
England, a nearly unbounded latitude in the
selection of punishments is now allowed to the
judge ; while all States have in reserve an ultimate
remedy for the miscarriages of law in the Pre-
rogative of Pardon , universally lodged with the
Chief Magistrate. It is curious to observe how
little the men of primitive times were troubled
with these scruples , how completely they were
persuaded that the impulses of the injured person
were the proper measure of the vengeance he was
entitled to exact, and how literally they imitated
the probable rise and fall of his passions in fixing
their scale of punishment. I wish it could be said
that their method of legislation is quite extinct.
There are, however , several modern systems of law
which, in cases of graver wrong, admit the fact of
the wrong-doer having been taken in the act to
be pleaded in justification of inordinate punish-
ment inflicted on him by the sufferer-an indul-
gence which, though superficially regarded it may
seem intelligible , is based , as it seems to me, on a
very low morality.
Nothing, I have said , can be simpler than the
considerations which ultimately led ancient socie-
ties to the formation of a true criminal jurispru-
dence . The State conceived itself to be wronged,
and the Popular Assembly struck straight at the
offender with the same movement which accom-
panied its legislative action . It is further true
of the ancient world-though not precisely of the
modern, as I shall have occasion to point out-
CHAP X]. CRIMINAL JURISPRUDENCE 339

that the earliest criminal tribunals were merely

subdivisions , or committees , of the legislature .
This, at all events, is the conclusion pointed at by
the legal history of the two great states of antiquity
with tolerable clearness in one case , and with
absolute distinctness in the other. The primitive
penal law of Athens intrusted the castigation of
offences partly to the Archons, who seem to have
punished them as torts, and partly to the Senate
of Areopagus, which punished them as sins . Both
jurisdictions were substantially transferred in the
end to the Heliæa, the High Court of Popular
Justice, and the functions of the Archons and of
the Areopagus became either merely ministerial
or quite insignificant . But " Heliæa " is only an
old word for assembly ; the Heliæa of classical
times was simply the Popular Assembly convened
for judicial purposes, and the famous Dikasteries
of Athens were only its subdivisions or panels.
The corresponding changes which occurred at
Rome are still more easily interpreted , because the
Romans confined their experiments to the penal
law, and did not , like the Athenians, construct
popular courts with a civil as well as a criminal
jurisdiction . The history of Roman criminal
jurisprudence begins with the old Judicia Populi ,
at which the Kings are said to have presided .
These were simply solemn trials of great offenders
under legislative forms . It seems, however , that
from an early period the Comitia had occasionally
delegated its criminal jurisdiction to a Quæstio or
Commission, which bore much the same relation
to the Assembly which a Committee of the House
of Commons bears to the House itself, except that
258 EARLY HISTORY OF PROPERTY [CHAP. VIII

are so little versed in legal literature as not to

have heard that the language of the Roman juris-
consults on the subject of Possession long occa-
sioned the greatest possible perplexity, and that
the genius of Savigny is supposed to have chiefly
proved itself by the solution which he discovered
for the enigma . Possession, in fact , when em-
ployed by the Roman lawyers, appears to have
contracted a shade of meaning not easily accounted
for . The word, as appears from its etymology,
must have originally denoted physical contact
or physical contact resumable at pleasure ; but
as actually used , without any qualifying epithet,
it signifies not simply physical detention, but
physical detention coupled with the intention to
hold the thing detained as one's own . Savigny,
following Niebuhr, perceived that for this anomaly
there could only be a historical origin . He
pointed out that the Patrician burghers of Rome,
who had become tenants of the greatest part
of the public domain at nominal rents, were, in
the view of the old Roman law, mere possessors,
but then they were possessors intending to keep
their land against all comers . They, in truth,
put forward a claim almost identical with that
which has recently been advanced in England
by the lessees of Church lands. Admitting that
in theory they were the tenants-at-will of the
State, they contended that time and undisturbed
enjoyment had ripened their holding into a species
of ownership , and that it would be unjust to eject
them for the purpose of redistributing the domain.
The association of this claim with the Patrician
tenancies, permanently influenced the sense of
CHAP. VIII] PROPERTY AND POSSESSION 259
66
possession. " Meanwhile the only legal remedies
of which the tenants could avail themselves,
if ejected or threatened with disturbance, were
the Possessory Interdicts, summary processes of
Roman law which were either expressly devised
by the Prætor for their protection, or else, ac-
cording to another theory, had in olden times
been employed for the provisional maintenance of
possessions pending the settlement of questions of
legal right. It came, therefore, to be understood

that everybody who possessed property as his

own had the power of demanding the Interdicts ,
and, by a system of highly artificial pleading,
the Interdictal process was moulded into a shape
fitted for the trial of conflicting claims to a dis-
puted possession . Then commenced a movement

which, as Mr. John Austin pointed out, exactly

reproduced itself in English law. Proprietors ,
domini, began to prefer the simpler forms or
speedier course of the Interdict to the lagging
and intricate formalities of the Real Action , and
for the purpose of availing themselves of the
possessory remedy fell back upon the possession
which was supposed to be involved in their

proprietorship . The liberty conceded to persons

who were not true Possessors , but Owners , to
vindicate their rights by possessory remedies,
though it may have been at first a boon, had
ultimately the effect of seriously deteriorating
both English and Roman jurisprudence . The
Roman law owes to it those subtleties on the
subject of Possession which have done so much
to discredit it, while English law, after the actions
which it appropriated to the recovery of real
 340 EARLY HISTORY OF DELICT AND CRIME [CHAP. X

the Roman Commissioners or Quæstores did not

merely report to the Comitia, but exercised all

powers which that body was itself in the habit of
exercising, even to the passing sentence on the
accused . A Quæstio of this sort was only ap-
pointed to try a particular offender, but there was
nothing to prevent two or three Quæstiones sitting
at the same time ; and it is probable that several
of them were appointed simultaneously, when
several grave cases of wrong to the community
had occurred together . There are also indications
that now and then these Quæstiones approached
the character of our Standing Committees, in that
they were appointed periodically, and without
waiting for occasion to arise in the commission of
some serious crime . The old Quæstores Parricidii,
who are mentioned in connection with transactions
of very ancient date, as being deputed to try (or,
as some take it, to search out and try) all cases
of parricide and murder, seem to have been
appointed regularly every year ; and the Duum-
viri Perduellionis , or Commission of Two for trial
of violent injury to the Commonwealth, are also
believed by most writers to have been named
periodically . The delegations of power to these
latter functionaries bring us some way forwards.
Instead of being appointed when and as state-
offences were committed, they had a general,
though a temporary jurisdiction over such as
might be perpetrated . Our proximity to a regular
criminal jurisprudence is also indicated by the
general terms " Parricidium " and " Perduellio,"
which mark the approach to something like a
classification of crimes.
CHAP. X] QUESTIONES PERPETUE 341

The true criminal law did not however come

into existence till the year B.C. 149, when L.

Calpurnius Piso carried the statute known as the
Lex Calpurnia de Repetundis. The law applied
to cases Repetundarum Pecuniarum, that is,
claims by Provincials to recover monies improperly
received by a Governor-General, but the great
and permanent importance of this statute arose
from its establishing the first Quæstio Perpetua .
A Quæstio Perpetua was a Permanent Commission
as opposed to those which were occasional and
to those which were temporary. It was a regular
criminal tribunal, whose existence dated from
the passing of the statute creating it and continued
till another statute should pass abolishing it . Its
members were not specially nominated , as were the
members of the older Quæstiones, but provision
was made in the law constituting it for selecting
from particular classes the judges who were to
officiate, and for renewing them in conformity
with definite rules . The offences of which it took
cognisance were also expressly named and defined
in this statute, and the new Quæstio had authority
to try and sentence all persons in future whose acts
should fall under the definitions of crime supplied
by the law. It was therefore a regular criminal
judicature, administering a true criminal juris-
prudence .
The primitive history of criminal law divides
itself therefore into four stages . Understanding

that the conception of Crime, as distinguished

from that of Wrong or Tort, and from that of Sin,
involves the idea of injury to the State or collec-
tive community, we first find that the common-
 342 EARLY HISTORY OF DELICT AND CRIME [CHAP. X

wealth, in literal conformity with the conception,

itself interposed directly , and by isolated acts, to
avenge itself on the author of the evil which it had
suffered . This is the point from which we start ;
each indictment is now a bill of pains and penalties ,
a special law naming the criminal and prescribing
his punishment . A second step is accomplished
when the multiplicity of crimes compels the
legislature to delegate its powers to particular
Quæstiones or Commissions, each of which is
deputed to investigate a particular accusation,
and, if it be proved, to punish the particular
offender . Yet another movement is made when

the legislature, instead of waiting for the alleged

commission of a crime as the occasion of appointing

a Quæstio, periodically nominates Commissioners

like the Quæstores Parricidii and the Duumviri
Perduellionis, on the chance of certain classes of
crimes being committed , and in the expectation
that they will be perpetrated . The last stage is
reached when the Quæstiones from being periodical
or occasional become permanent Benches or
Chambers - when the judges , instead of being
named in the particular law nominating the
Commission, are directed to be chosen through all
future time in a particular way and from a parti-
cular class- and when certain acts are described

in general language and declared to be crimes,

to be visited , in the event of their perpetration ,
with specified penalties appropriated to each
description .

If the Quæstiones Perpetuæ had had a longer

history, they would doubtless have come to be
regarded as a distinct institution , and their
CHAP. X] QUÆSTIONES PERPETUÆ 343

relation to the Comitia would have seemed no

closer than the connection of our own Courts of
Law with the Sovereign, who is theoretically the
fountain of justice . But the Imperial despotism
destroyed them before their origin had been com-
pletely forgotten, and so long as they lasted,
these permanent Commissions were looked upon
by the Romans as the mere depositaries of a
delegated power. The cognisance of crimes was
considered a natural attribute of the legislature ,
and the mind of the citizen never ceased to be

carried back from the Quæstiones to the Comitia

which had deputed them to put into exercise
some of its own inalienable functions . The view

which regarded the Quæstiones , even when they

became permanent, as mere Committees of the
Popular Assembly-as bodies which only minis-
tered to a higher authority- had some important
legal consequences which left their mark on the
criminal law to the very latest period . One
immediate result was that the Comitia continued
to exercise criminal jurisdiction by way of bills
of pains and penalties, long after the Quæstiones
had been established . Though the legislature had
consented to delegate its powers for the sake of
convenience to bodies external to itself, it did not
follow that it surrendered them. The Comitia
and the Quæstiones went on trying and punishing
offenders side by side ; and any unusual outburst
of popular indignation was sure, until the extinc-
tion of the Republic , to call down upon its object
an indictment before the Assembly of the Tribes.
One of the most remarkable peculiarities of
the institutions of the Republic is also traceable
 344 EARLY HISTORY OF DELICT AND CRIME [CHAP. X

to this dependence of the Quæstiones on the

Comitia . The disappearance of the punishment
of death from the penal system of Republican
Rome used to be a very favourite topic with the
writers of the last century, who were perpetually
using it to point some theory of the Roman
character or of modern social economy. The

reason which can be confidently assigned for it

stamps it as purely fortuitous. Of the three
forms which the Roman legislature successively
assumed, one, it is well known-the Comitia
Centuriata-was exclusively taken to represent
the State as embodied for military operations.
The Assembly of the Centuries, therefore, had all
powers which may be supposed to be properly
lodged with a General commanding an army,
and, among them, it had authority to subject all
offenders to the same correction to which a soldier

rendered himself liable by breaches of discipline.

The Comitia Centuriata could therefore inflict
capital punishment. Not so, however, the Comitia
Curiata or Comitia Tributa. They were fettered
on this point by the sacredness with which the
person of a Roman citizen, inside the walls of the
city, was invested by religion and law ; and,
with respect to the last of them, the Comitia
Tributa, we know for certain that it became a
fixed principle that the Assembly of the Tribes
could at most impose a fine. So long as criminal
jurisdiction was confined to the legislature, and
so long as the assemblies of the Centuries and
of the Tribes continued to exercise co-ordinate
powers, it was easy to prefer indictments for
graver crimes before the legislative body which
CHAP. X] PUNISHMENT OF DEATH 345

dispensed the heavier penalties ; but then it

happened that the more democratic assembly,
that of the Tribes, almost entirely superseded
the others, and became the ordinary legislature
of the later Republic . Now the decline of the
Republic was exactly the period during which the
Quæstiones Perpetuæ were established, so that
the statutes creating them were all passed by a
legislativeassembly which itself could not, at
its ordinary sittings, punish a criminal with death .
It followed that the Permanent Judicial Com-
missions , holding a delegated authority, were
circumscribed in their attributes and capacities
by the limits of the powers residing with the body
which deputed them. They could do nothing
which the Assembly of the Tribes could not have
done ; and, as the Assembly could not sentence
to death, the Quæstiones were equally incompetent
to award capital punishment . The anomaly thus
resulting was not viewed in ancient times with
anything like the favour which it has attracted
among the moderns , and indeed , while it is
questionable whether the Roman character was
at all the better for it , it is certain that the Roman
Constitution was a great deal the worse . Like

every other institution which has accompanied

the human race down the current of its history ,
the punishment of death is a necessity of society
in certain stages of the civilising process. There
is a time when the attempt to dispense with it
baulks both of the two great instincts which lie
at the root of all penal law. Without it , the
community neither feels that it is sufficiently
revenged on the criminal , nor thinks that the
 346 EARLY HISTORY OF DELICT AND CRIME [CHAP, X

example of his punishment is adequate to deter

others from imitating him. The incompetence
of the Roman Tribunals to pass sentence of death
led distinctly and directly to those frightful
Revolutionary intervals, known as the Proscrip-
tions, during which all law was formally suspended
simply because party violence could find no other
avenue to the vengeance for which it was thirsting.
No cause contributed so powerfully to the decay
of political capacity in the Roman people as this
periodical abeyance of the laws ; and, when it
had once been resorted to, we need not hesitate
to assert that the ruin of Roman liberty became
merely a question of time. If the practice of
the Tribunals had afforded an adequate vent for
popular passion, the forms of judicial procedure
would no doubt have been as flagrantly perverted
as with us in the reigns of the later Stuarts, but
national character would not have suffered as
deeply as it did, nor would the stability of Roman
institutions have been as seriously enfeebled .
I will mention two more singularities of the
Roman Criminal System which were produced
by the same theory of judicial authority. They
are, the extreme multiplicity of the Roman
criminal tribunals, and the capricious and anoma-
lous classification of crimes which characterised

Roman penal jurisprudence throughout its entire

history. Every Quæstio, it has been said, whether
Perpetual or otherwise, had its origin in a distinct
statute . From the law which created it, it derived
its authority ; it rigorously observed the limits
which its charter prescribed to it, and touched
no form of criminality which that charter did not
CHAP. X] RESULTS TRACEABLE TO THE QUÆSTIONES 347

expressly define. As then the statutes which

constituted the various Quæstiones were all called

forth by particular emergencies, each of them
being in fact passed to punish a class of acts
which the circumstances of the time rendered
particularly odious or particularly dangerous,
these enactments made not the slightest reference
to each other, and were connected by no common
principle. Twenty or thirty different criminal

laws were in existence together, with exactly

the same number of Quæstiones to administer
them ; nor was any attempt made during the
Republic to fuse these distinct judicial bodies
into one, or to give symmetry to the provisions
of the statutes which appointed them and defined
their duties . The state of the Roman criminal

jurisdiction at this period, exhibited some resem-

blances to the administration of civil remedies
in England at the time when the English Courts
of Common Law had not as yet introduced those
fictitious averments into their writs which enabled

them to trespass on each other's peculiar province .

Like the Quæstiones, the Courts of Queen's Bench ,
Common Pleas , and Exchequer, were all theo-
retical emanations from a higher authority, and
each entertained a special class of cases supposed
to be committed to it by the fountain of its
but then the Roman Quæstiones
jurisdiction ;
were many more than three in number, and it
was infinitely less easy to discriminate the acts
which fell under the cognisance of each Quæstio,
than to distinguish between the provinces of the
three Courts in Westminster Hall . The difficulty
of drawing exact lines between the spheres of
 348 EARLY HISTORY OF DELICT AND CRIME [CHAP. X

the different Quæstiones made the multiplicity

of Roman tribunals something more than a mere
inconvenience ; for we read with astonishment
that when it was not immediately clear under
what general description a man's alleged offences
ranged themselves, he might be indicted at once
or successively before several different Commis-
sions, on the chance of some one of them declaring
itself competent to convict him ; and, although
conviction by one Quæstio ousted the jurisdiction
of the rest, acquittal by one of them could not be
pleaded to an accusation before another. This
was directly contrary to the rule of the Roman
civil law ; and we may be sure that a people so
sensitive as the Romans to anomalies (or, as their
significant phrase was, to inelegancies) in juris-
prudence, would not long have tolerated it, had
not the melancholy history of the Quæstiones
caused them to be regarded much more as tem-
porary weapons in the hands of factions than
as permanent institutions for the correction of
crime. The Emperors soon abolished this multi-
plicity and conflict of jurisdiction ; but it is
remarkable that they did not remove another
singularity of the criminal law which stands in
} close connection with the number of the Courts.
The classifications of crimes which are contained
even in the Corpus Juris of Justinian are remark-
ably capricious . Each Quæstio had, in fact,
confined itself to the crimes committed to its
cognisance by its charter. These crimes, however,
were only classed together in the original statute
because they happened to call simultaneously
for castigation at the moment of passing it. They
CHAP. X] CLASSIFICATION OF CRIMES 349

had not therefore anything necessarily in common ;

but the fact of their constituting the particular
subject-matter of trials before a particular Quæstio
impressed itself naturally on the public attention ,
and so inveterate did the association become
between the offences mentioned in the same
statute that, even when formal attempts were
mode by Sylla and by the Emperor Augustus
to consolidate the Roman criminal law, the
legislator preserved the old grouping . The Statutes
of Sylla and Augustus were the foundation of the
penal jurisprudence of the Empire , and nothing
can be more extraordinary than some of the
classifications which they bequeathed to it. I
need only give a single example in the fact that
perjury was always classed with cutting and
wounding and with poisoning, no doubt because
a law of Sylla , the Lex Cornelia de Sicariis et
Veneficis , had given jurisdiction over all these
three forms of crime to the same Permanent
Commission . It seems too that this capricious
grouping of crimes affected the vernacular speech
of the Romans . People naturally fell into the
habit of designating all the offences enumerated
in one law by the first name on the list, which
doubtless gave its style to the Law Court deputed
to try them all . All the offences tried by the
Quæstio De Adulteriis would thus be called
Adultery .
I have dwelt on the history and characteristics
of the Roman Quæstiones because the formation
of a criminal jurisprudence is nowhere else so
instructively exemplified . The last Quæstiones
were added by the Emperor Augustus, and from
 350 EARLY HISTORY OF DELICT AND CRIME (CHAP. X

that time the Romans may be said to have had

a tolerably complete criminal law. Concurrently
with its growth, the analogous process had gone
on, which I have called the conversion of Wrongs
into Crimes, for, though the Roman legislature
did not extinguish the civil remedy for the more
heinous offences, it offered the sufferer a redress
which he was sure to prefer . Still, even after
Augustus had completed his legislation, several
offences continued to be regarded as Wrongs,
which modern societies look upon exclusively as
crimes ; nor did they become criminally punishable
till some late but uncertain date, at which the
law began to take notice of a new description of
offences called in the Digest crimina extraordinaria.
These were doubtless a class of acts which the

theory of Roman jurisprudence treated merely

as wrongs ; but the growing sense of the majesty
of society revolted from their entailing nothing
worse on their perpetrator than the payment of
money damages, and accordingly the injured
person seems to have been permitted, if he
pleased, to pursue them as crimes extra ordinem ,
that is, by a mode of redress departing in some
respect or other from the ordinary procedure.
From the period at which these crimina extra-
ordinaria were first recognised, the list of crimes
in the Roman State must have been as long as
in any community of the modern world.
It is unnecessary to describe with any minute-
ness the mode of administering criminal justice
under the Roman Empire, but it is to be noted
that both its theory and practice have had powerful
effect on modern society. The Emperors did not
CHAP. X] LATER LAW OF CRIMES 351

immediately abolish the Quæstiones , and at first

they committed an extensive criminal jurisdiction
to the Senate, in which, however servile it might
show itself in fact, the emperor was no more
nominally than a Senator like the rest . But
some sort of collateral criminal jurisdiction had
been claimed by the Prince from the first ; and
this , as recollections of the free commonwealth
decayed, tended steadily to gain at the expense
of the old tribunals . Gradually the punishment
of crimes was transferred to magistrates directly
nominated by the Emperor, and the privileges
of the Senate passed to the Imperial Privy Council
which also became a Court of ultimate criminal

appeal. Under these influences the doctrine ,

familiar to the moderns , insensibly shaped itself
that the Sovereign is the fountain of all Justice
and the depositary of all Grace . It was not so
much the fruit of increasing adulation and servility
as of the centralisation of the Empire which had
by this time perfected itself. The theory of
criminal justice had , in fact, worked round almost
to the point from which it started . It had begun
in the belief that it was the business of the collec-
tive community to avenge its own wrongs by its
own hand ; and it ended in the doctrine that the
chastisement of crimes belonged in an especial
manner to the Sovereign as representative and
mandatory of his people. The new view differed
from the old one chiefly in the air of awfulness
and majesty which the guardianship of justice
appeared to throw around the person of the
Sovereign .
This later Roman view of the Sovereign's
352 EARLY HISTORY OF DELICT AND CRIME (CHAP. X

relation to justice certainly assisted in saving

modern societies from the necessity of travelling
through the series of changes which I have illus-
trated by the history of the Quæstiones. In the
primitive law of almost all the races which have
peopled Western Europe there are vestiges of
the archaic notion that the punishment of crimes
belongs to the general assembly of freemen ; and
there are some States-Scotland is said to be one

of them- in which the parentage of the existing

judicature can be traced up to a Committee of
the legislative body. But the development of
the criminal law was universally hastened by two
causes, the memory of the Roman Empire and
the influence of the Church. On the one hand,
traditions of the majesty of the Cæsars, perpetu-
ated by the temporary ascendancy of the House
of Charlemagne, were surrounding Sovereigns
with a prestige which a mere barbarous chieftain
could never otherwise have acquired, and were
communicating to the pettiest feudal potentate
the character of guardian of society and repre-
sentative of the State . On the other hand, the
Church, in its anxiety to put a curb on sanguinary
ferocity, sought about for authority to punish the
graver misdeeds, and found it in those passages
of Scripture which speak with approval of the
powers of punishment committed to the civil
magistrate. The New Testament was appealed
to as proving that secular rulers exist for the
terror of evil-doers ; the Old Testament , as laying
down that " whoso sheddeth man's blood, by man
shall his blood be shed ." There can be no doubt,

I imagine, that modern ideas on the subject of

CHAP. X] KING ALFRED'S OPINION 353

crime are based upon two assumptions contended

for by the Church in the Dark Ages- first , that
each feudal ruler, in his degree , might be assimi-
lated to the Roman Magistrates spoken of by
Saint Paul ; and next, that the offences which
he was to chastise were those selected for pro-
hibition in the Mosaic Commandments , or rather
such of them as the Church did not reserve to

her own cognisance . Heresy, supposed to be

included in the First and Second Commandments ,
Adultery, and Perjury were ecclesiastical offences ,
and the Church only admitted the co-operation
of the secular arm for the purpose of inflicting
severer punishment in cases of extraordinary
aggravation. At the same time, she taught that
murder and robbery, with their various modi-
fications , were under the jurisdiction of civil
rulers , not as an accident of their position , but
by the express ordinance of God .
There is a passage in the writings of King
Alfred (Kemble , ii . 209 ) which brings out into
remarkable clearness the struggle of the various
ideas that prevailed in his day as to the origin
of criminal jurisdiction . It will be seen that
Alfred attributes it partly to the authority of
the Church and partly to that of the Witan , while
he expressly claims for treason against the lord
the same immunity from ordinary rules which
the Roman Law of Majestas had assigned to
treason against the Cæsar. " After this it hap-
pened," he writes, " that many nations received
the faith of Christ , and there were many synods
assembled throughout the earth, and among the
English race also after they had received the
23
354 EARLY HISTORY OF DELICT AND CRIME [CHAP. X

faith of Christ, both of holy bishops and of their

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

ADOPTION BENTHAM
ADOPTION, fiction of, 115 Archon of Athens, the office of
- influence of the sacra gentilicia the , 9
on the law of, 5, 6, 24 Aristocracies, origin of the rule
in Hindoo law, 171 of, 9
Adprehensio ; or assumption of - those of Greece, Italy, and
sovereign power in a newly dis- Asia Minor, 9
covered country, 221 difference between those of the
Equitas, the term, 51. See East and West, 10
Equity -- aristocracies the depositaries
Equus, the word, 52 and administrators of the
Agnatic and Cognatic relationship, law, 10, 11
difference between, 52 , 129 - importance of judicial , before
Agnation described , 129, 131 the invention of writing, II
Agreement, Roman analysis of, foundation of aristocracies, 117
286 Aristotle, his Treatise on Rhe-
Agri vectigales, Roman practice of toric, referred to, 66
letting out, 266 Assignees in Bankruptcy, succes-
limitrophi of the Romans on sion of, 160
the banks of the Rhine and Athenian wills, 174
Danube, 268 Athens, primitive penal law of,
Alexander the Sixth, Pope, his 339
Bull, 222 Augustus, the Emperor, his altera-
Alfred , King, his remarks on tions in the Roman law, 37,
criminal jurisdiction , quoted, 38
353 Austin's " Province of Jurispru-
Alienation of property, ancient dence Determined " referred
difficulties of, 240, 241 to, 6
- archaic ceremonies of, 241
Allodial property, of the ancient BAYLE referred to, 77
Germans , 202, 250 Benefices of the invading chiefs of
America, United States of, De- the Roman Empire, 203
claration of Independence of, 84 -- transformation of the Benefice
Anglo- Saxons, character of their into the hereditary Fief, 214
kingship, 95 Bengalee Wills, 175
- their law of succession, 249 66 Fragment on
Bentham, his
-- their penal law, 329, 332 , 337 Government," referred to, 6
355
 356 INDEX

BENTHAM CO-HEIRS
Bentham, causes of his influence Chancellor, the Lord, compared
in England, 69 with a Roman Prætor, 57, 58
the Roman counterpart of Chancery, Court of, in England,
Benthamism , 69 remarks on the, 39
- the theory of Jurisprudence, origin of its system , 39, 40
105 Charlemagne, his claim to univer-
his eulogy of the Bull of Pope sal dominion, 93
Alexander the Sixth, 222 - his distribution of Benefices,
Bentham and Austin's rules as 203
to the essentials of a contract, Children, disinherison of, under
286 the Romans , 191
Blackstone, Sir William, his China, cause of the arrest of
theory of the first principles of progress in, 21
law, 100, 1OI Churches, Eastern and Western,
-- his justification for the exclu- conclusion of the East on theo-
sion of the half-blood, 134 logical subjects accepted by the
- his theory of the origin of West without dispute or review,
property quoted, 223 316
his theory criticised, 225 - problems of the Western
Bonorum Possessio of the Romans, Church, 317
187 Cicero referred to, 54
Bracton, his Plagiarisms, 72 -- his allusions to the ancient
Burgundians, the, referred to, 91 Roman Sacra, 171
Code Napoléon, restraints imposed
CÆSAR, Julius, his contemplated by it on the Testamentary
additions to the Roman Statute Power, 157
Law, 38 Codes, Ancient, 1
Capet, Hugh, character of his sources of knowledge afforded
sovereignty, 95 by the Greek Homeric poems,
Capture in War, sources of the 2
modern International Law of, Themistes, 3, 4
218 -- Hindoo Laws of Manu, 5
ancient Law of, 219 -- difference between Case- law
Caracalla, effect of his constitution and Code-law, 12
in enlarging the Patria Potestas, era of Codes, 12
128 the Twelve Tables, 1, 12
Casuists, the, 311 -- the Codes of Solon and Draco,
comparison of their system 14
with that of Grotius and his – importance of Codes to ancient
school, 311 societies, 14-17
-origin of Casuistry, 312 Coemption, or higher form of civil
- blow struck at Casuistry by marriage of the ancient Ro-
Pascal, 313 mans, 136
Cessio in Jure of Property, in Cognatic relationship described,
Roman and in English Law, 129, 130
256 Co-heirs, rights and duties of, 161
Cestui que Trust, special pre- - rights of, under the Roman
prietorship created for the, 261 Law, 201
 INDEX 357

COLONI CUSTOMARY
Coloni of the Romans , 205 Contract, the Roman Obligation,
-origin and situation of the, 266 287
Comitia Calata, ancient Roman - Roman classification of Con-
execution of Wills in the, 176 tracts, 288
- end of the, 180 -the Verbal Contract, 289
Comitia Centuriata, power of the, the Literal or Written Con-
344 tract, 293
- - Curiata, powers of the, 344 - the Real Contract, 294
- Tributa , powers of the, 344 - Consensual Contracts, 294
Commentaries of the Roman law- changes in Contract law, 299
yers, 32 - history of the progress of Con-
Common law of England, formerly tract law, 300
an unwritten law, II - Quasi-Contracts, 304
- difference between Case- law Contract law and Fiefs, 323
and Code-law, 12 Conveyances, relation of Wills to,
Case-law and its anomalies , 28 under the Roman Law, 180
similarity between English consequence of this relation, 182
Case-law and the Responsa remedies , 183
Prudentium of the Romans , historical alliance between Con-
30 tracts and Conveyances, 282
Confarreation, or religious mar- Co-ownership of property,
riage of the ancient Romans , 136 amongst the Hindoos, 231 , 232
Constantine, the Emperor, his - regarded by the Roman Law as
improvements in the Law, 38 exceptional and momentary,
- his modification of the Patria 232
Potestas , 126 Corporations aggregate, 166
Contract, movement of societies sole, leading attribute of, 166
from Status to, 151 64
Corpus Juris Civilis " of Jus-
early history of, 270 tinian, 60
Contract and Political Eco- resorted to by English Chan-
nomy, 271 cery judges, 39
Rousseau's doctrine of an Creation, Greek philosophical ex-
original Social Contract, 274 planation of the fabric of, 47
- Montesquieu's apologue of the Creditors, cause of the extrava-
Troglodytes, 276 gant powers given to, by ancient
- early notions of Contract, 277 laws, 285
- Roman Contracts , 279 Crimes and Wrongs. See Delict
specialising process in ancient and Crime
law, 280 Croatia, co-ownership of the villa-
- historical alliance between Con- gers of, 237
tracts and Conveyances, 282 Curatores of male Orphans under
- - changes in the Nexum , 282 the Roman law, 143
- Executory Contracts of Sale, Curse, inherited , Greek notion of
285 an, 112
- primitive association of Con- Customary Law, 6
veyances and Contracts, 285 Homeric terms for customs, 5
ancient and modern doctrine of — origin of customary law, 8
Contracts, 286 -― epoch of customary law and its
 358 INDEX
CYCLOPS
EQUALITY
custody by a privileged order, Delict and Crime, statutes of Sylla
II
and Augustus , 349
Cyclops, Homer's account of, - later law of crimes, 351
quoted, 110 - crimina extraordinaria, 350
- - mode of administering criminal
DEATH, disappearance of, from
justice under the Roman
the penal system of republican Empire, 350
Rome, 344
modern history of crimes, 352
- causes for this, 344 - King Alfred on Criminal juris-
-- death punishment a necessity
diction quoted, 353
in certain stages of society,
Discovery, considered as a mode
345
of acquiring dominion, 221
Debtors, cause of the severity of Dominion, its nature, limitation,
ancient laws against, 285
and mode of securing it, 89
Decretals, forged, motives of the -- of the Romans, 281
author of the, 72
Dower, the principle of, engrafted
Delict and Crime, early history of, on the Customary Law of
326 Western Europe, 199
Penal law in ancient codes, 327
Draco, rudeness of the Code of, 14
Crimes and Wrongs, crimina - penal laws of, 326
and delicta , 328 Dumoulin referred to, 75
· Furtum or Theft of the Roman Dumont's Sophismes Anar-
Law, 329, 336
chiques," remarks, 81
Wrongs and Sins both known Duumviri Perduellionis , the, 340
to primitive jurisprudence ,
330 EDICT of the Roman Prætor, 37,
- difference between the ancient
50, 56-8, 185, 260
and modern conception of
Egypt, Modern, rule of succession
Crime , 331 to the throne of, 215
the Roman Legis Actio Sacra- Eldon, Lord, his Chancellorship,
menti , 333 61
Homer's description of an
ancient law- suit , 335 Elphinstone's " History of India "
quoted , 234
- primitive penal law of Athens, Emphyteusis, system of, 265 et
339
seq.
-old Roman criminal jurispru- - - rights of the Emphyteuta, 267
dence , 339
Emptor Familiæ. See Familiæ
the Quæstiones, 340
- - Quæstores Parricidii , 340 Emptor
Duumviri Perduellionis , 340 England, the Land-law of, at the
the first true Roman Criminal present time, 201
Law, 341 English Common Law, formerly
an unwritten law, II
the primitive history of crimi- ―- law, hesitation of our Courts in
nal law, 341
extreme multiplicity of Roman declaring principles of, 36
criminal tribunals , 346 Equality of men, doctrine of the,
81
- capricious classification of -
crimes , 348 as understood by the Roman
jurisconsults, 82
 INDEX 359

EQUALITY FIDEI-COMMISSA
Equality of men, its meaning in its guage of the ancient Roman
modern dress, 82 Law, 184
ordinance of Louis Hutin Familia Emptor, office of the,
quoted, 82 181
- declaration of American Inde- - - rights and duties of the, 182
pendence, 84 -- remarks on the expression
- assumption of the Grotian Familiæ Emptor , 184
school, 88 Family, the, of Archaic society,
Equity, early history of, 22 117
- equity considered as an agent disintegration of the Family,
by which the adaptation of 149
law to social wants is carried regarded as a corporation, 163
on, 25 organisations of elementary
— meaning of the term equity, 25 communities, 208
difference between equity and - Highland chieftainship , 207
legal fictions, 25 - - - Families, not Individuals,
between equity and legisla- known to ancient law, 229
tion, 26, 27 Indian, Russian, Croatian, and
-- remarks on the law of nature Sclavonian laws respecting
and equity, 39 et seq. the property of Families, 238,
- - the English Court of Chancery, 239
39 Feudal view of the ownership of
- origin of its system, 39, 40 property, 263
the equity of Rome, 40 Feudal services, 269
--- origin and history of the term Feudalism , its connection with
66 territorial sovereignty, 94
Equity," 51
- the term Equitas and 'Iobrns, - feudal organisation, 94, 95
51 -the modern Will an accidental
— picture presented to the Roman fruit of, 199, 200
mind by the word " Equity," - - Feudalism and Contract law,
53 324
- the English Chancellor com- Fictions, legal, 19, 21
pared with the Roman - - early history of, 21
Prætor, 58 - meaning of fictio in old Roman
exhaustion of the power of Law, 23
growth in Roman Equity, - object of the fictiones, 23
бо - instances cited from the Eng.
- features common to English lish and Roman Law, 24
and Roman Equity , 60 et seq. -- their former importance and
distinction between Law and modern uselessness , 24, 25
Equity in their conceptions of - difference between legal fictions
proprietary right, 260 and equity, 25 , 26
Ethics, obligations of, to the - and between legal fictions and
Roman Law, 308 legislation, 26
the Casuists' , 310 - instances of legal fictions, 27
Grotius and his school, 310 - Case-law and its anomalies, 28
Fidei-Commissa, or Bequests in
FAMILIA, meaning of, in the lan- Trust, of the Roman Law, 198
 360 INDEX

FIEFS HÆREDITAS
Fiefs, hereditary, gradual trans- Germans, penal laws of the ancient,
formation of Benefices into, 204 326
--- original tenures, 204, 205 - Patria Potestas of the, 126
laws of fiefs, 323 — primitive property of, 175
Foreigners, causes of immigration - the ancient law of allodial
of, into ancient Rome, 41 , 42 property, 202
""
- exclusion of, under the early " Germany " of Tacitus, its value,
Roman republic, 42 106
France, lawyers and juridical - suspicions as to its fidelity, 107
science of, 70 et seq. allodial property of, 249
- effects of the alliance between Greece, aristocracies of, 9
the lawyers and the kings , on Greek theory of a Law of Nature,
the fortunes of, 70, 71 46, 47
- difference between the Pays Greeks, equality of laws on which
de Droit Coutumier and the they prided themselves, 51
Pays de Droit Écrit, 73, 74 - their tendency to confound
pre-eminence given in France law and fact, 66
to Natural Law, 75 their notion of an inherited
Rousseau , 77 curse, 112
the Revolution , 80 - assistance afforded by, in the
Franks, the, referred to, 91 formation of the Roman
Roman institution of the Patria codes , 13, 14
Potestas not known to the, -- limited Patria Potestas of the,
127 120, 121
Free-will and Necessity, question - metaphysics of the, 302
of, unknown to the Greeks , 314 - their want of capacity for pro
Furtum, or Theft, of the Roman ducing a philosophyoflaw, 314
Law, 329 Grote, Mr. , his " History of
Greece," referred to, 4, 8
GAIUS referred to, 46 Grotius, Hugo, and his successors,
his description of the institution on International law, 85
of the Patria Potestas, 119 - his doctrines, 88
his information respecting the success of his treatise " De Jure
Perpetual Tutelage of women, Belli et Pacis," 97
136 his theory of a natural state
- on the duplication of proprie- and of a system of principles
tary right, referred to, 262 congenial to it, 100
Galatæ, the Patria Potestas of the, - - his moral philosophy and that
120 of his school, 311
Gens, or House, of the Romans comparison of his system with
compared with the Village that of the Casuists , 311 , 312
Community of India, 235 Guardianship, Perpetual, of Wo-
Gentiles, Roman , their rights in men under the Roman Law, 135
cases of Intestate Succession, - amongst the Hindoos, 135
196 -- amongst the Scandinavians, 135
German law of Succession, 249
Germans, Wills of the ancient, HÆREDITAS, or Inheritance, de-
174, 175 finition, 161
 INDEX 361
HÆRES Ισότης
Hæres or Heir, his rights and jural ideas afforded by the,
duties, 160, 169, 201 2
Half-blood relationship, 134 Homeric poems, Themis and The-
-the rule according to the mistes, 3, 4
customs of Normandy, 134 Homeric words for Custom , 5
Haus-Gesetze of Germany, 205
Heirs, rights of, under the Roman INDIA, heroic and aristocratic eras
Law, 160, 168, 201 of the races of, 9
Highland chieftainship hereditary, laws of Manu, 5 , 15 , 16
207 - Customary law of, 6
form of Primogeniture , 212 - stage beyond which India has
Hindoo laws of Manu , 5 , 15, 16 not passed, 21
Customary Law, 6 Inheritance a form of universal
- law of Succession, 249 succession, 158
- differences between Inheri- - Roman definition of an In-
tances and Acquisitions, 249 heritance, 161
-- Perpetual Tutelage of Women - old Roman Law of, 168
amongst the Hindoos, 135 – and Acquisition , Hindoo differ-
- right amongst the Hindoos, ences between, 249
to inherit a dead man's Injunction of the Court of Chan-
property, 170 cery, 260
the Hindoo sacra, 171 Institutes of the Roman lawyers, 32
- the Suttee, 171 International Law, modern con-
-- the place of Wills amongst the fusion between it and Jus
Hindoos occupied by Adop- Gentium , 47
tions , 171 -- function of the Law of Nature
-- rights of the first-born son in giving birth to modern
amongst the Hindoos, 202 International Law, 84
-— primogeniture of the Hindoos - postulates forming the founda-
in public office or political tion of International Law, 84
power, but not in property, - Grotius and his successors , 85
207 dominion, 89
Hindoos, form of Ownership of territorial sovereignty, 90
Property amongst the,-the ― the ante-Grotian system of the
Village Community, 231 Law of Nations, 96
-Co-ownership , 232 - preparation of the public mind
- simplest form of the Village for the reception of the
Community, 233, 234 Grotian system, 96, 97
Acquisitions of Property and success of the treatise " De
Inheritances , Hindoo distinc- Jure Belli et Pacis, " 97
tion between , 249 points of junction between
Hobbes, his theory of the origin of modern public law and terri-
law, 101 torial sovereignty, 98
Homer, his account of the Cyclops , sources of the mode in case of
quoted, 110 Capture in War, 219
- his description of an ancient Intestacy. See Succession, In-
law-suit, 334 testate
Homeric poems , rudimentary 'Ioórns,the Greek principle of, 51,54
 362 INDEX

ITALY LAW
Italy, aristocracies of, 9 Jus Naturale, Natural law of the
codes of, 12 Roman Jurisconsults , 67
- instability of society in ancient, ancient counterpart of Ben-
4I thamism, 69
- territorial sovereigntyof princes - vastness of the influence of the
of, 95 Law of Nature on modern
society, 70
JEWS, Wills of the, 174 - history of the Law of Nature,
Julianus, Salvius, the Prætor, his 70 et seq.
Edict, 56 pre-eminence given to Natural
- effect of his measures on the law in France , 75
Prætorian Edicts, 58 - its condition at the middle of
Jurisconsults , early Roman, 33-5 the eighteenth century, 76
- later, 37 - Rousseau , 77
- Natural Law of the, 67 - the French Revolution, 80
Jurisprudence , golden age of equality of men, 81
Roman, 49 - - function of the Law of Nature
Jurists, Roman, period of, 59, 60 in giving birth to modern
Jus Feciale, or International Law International Law, 84
of the Romans, 47 sources of the Modern Inter-
Jus Gentium, origin of, 43 et seq. national Law of Capture in
circumstances of the origin War, 218
of, 44 Justinian's " Institutes " quoted ,
how regarded by a Roman, 44 40
- and by a modern lawyer, 45 referred to, 51
difference between the Jus Pandects "" of, 59
Gentium and the Jus Natu- ""
Corpus Juris Civilis " of, 60
rale, 46, 47 his modifications of the Patria
- point of contact between the Potestas, 126
old Jus Gentium and the Jus - - his scale of Intestate Succes-
Naturale , 51 sion, 195
- difference between the Jus
Gentium and the Quiritarian KINGS, origin of the doctrine of
Law, 52 the divine right of, 307
---- influence of the, on modern Kingship, heroic, origin of, 8
civilisation, 90 LACEDÆMONIAN kings, authority
Jus Naturale, or Law of Nature, of the, 9
46 Land-law of England at the
difference between the Jus present day, 201
Naturale and the Jus Gen- Land and goods, English distinc-
tium , 46, 47 tion between , 252
- - Greek conceptions of Nature Latifundia, Roman mode of culti-
and her law, 47 vating the, 265
- point of contact between the Law, socialnecessities and opinions
old Jus Gentium and the Law always in advance of, 22
of Nature, 51 agencies by which law is
- modern history of the Law of brought into harmony with
Nature, 64 society, 22
 INDEX 363
LAW NEXUM
Law, ancient, 100 MAHOMETAN Law of Succession ,
theories of a natural state and 215
of a system congenial to it, Majority and Minority , meaning of
100 the terms in Roman Law, 143
- Grotius, Blackstone, Locke, Mancipation , Roman, 44 , 181 , 247,
and Hobbes, 100, 101 282
theory of Montesquieu , 102 - - mode of giving the effect of
Bentham , 104 Mancipation to a Tradition,
dissatisfaction with existing 247
theories , 105 Manus of the Romans, 281
-— proper mode of inquiry, 105 Marriage, ancient Roman, 136
the Patriarchal theory, 108 - later Roman , 138
-- fiction of Adoption, 115 Master and Slave, 143
the archaic Family, 117 - under the Romans, 144
the Patria Potestas of the in the United States, 144
Romans, 119 Manu, Hindoo Laws of, 5, 15, 16
agnatic and cognatic relation- Merovingian kings of the Franks ,
ships , 129 92
Guardianship of Women, 135 Metayers, the, of the south of
- ancient Roman Marriage, 136 Europe, 267
- Master and Slave, 143 " Moniteur," the, during the
Leges Barbarorum, 264 period of the French Revolu-
Leges Corneliæ of Sylla, 37, 38 tion, 81
Leges Juliæ of Augustus, 38 Montesquieu's " Esprit des Lois,"
Legis Actio Sacramenti of the remarks on, 76
Romans described , 333 - - his Theory of Jurisprudence,
Legislation , era of, 22, 23 102
considered as an agent by - - Apologue of Montesquieu con-
which the adaptation of law cerning the Troglodytes, in
to the social wants is carried the " Lettres Persanes," 276
on, 26 Moral doctrines, early, 112
- difference between it and legal Mortgagor, special proprietorship
fictions , 27 created by the Court of Chan-
Lex Calpurnia de Repetundis, the cery for the, 261
first true Roman Criminal Law, Moses, testamentary power not
341 provided for by the Laws of,
Lex Plætoria, purport of the, 175
143
Lidi of the Germans, 205 NAPLES, territorial sovereignty of
Local Contiguity as the condi- the monarchs of, 95
tion of community in political Nations , Law of, 85 et seq. See
functions, 117 International Law and Jus
Locke, John, referred to, 77 Gentium
his theory of the origin of law, Nature and her Law, Greek con
ΙΟΙ ceptions of, 47
Lombards, referred to, 91 Nexum of the ancient Romans.
Louis Hutin , King of France, his 42 , 279
ordinance quoted , 82 - changes in the, 282
 INDEX
364
NORMANDY PRÆTORIAN
Normandy, customs of, referred Patriarchal theory of primeval
to, 134 jurisprudence, 108
Nouos, the word not known to the chief points from Scriptural
Homeric poems, 5 accounts , 109
Nuncupatio, of the Romans, 182 - Homer's account of the Cy-
clops, 110
OBLIGATIONS of the Roman Law, Pays de Droit Écrit and Pays de
287 Droit Coutumier, difference be-
-— rights and duties of, 288 tween the, 73, 74
Occupatio, or Occupancy, of the Peculium, the, of the Romans, 126
Roman Law, a natural mode ·Castrense Peculium, 126
of acquiring property," 218, 222 Quasi-castrense Peculium, 126
- things which never had an Penal law in ancient codes, 326
owner, 218 Perjury, how punished by the
- things which have not an ancient Romans, 349
owner, 218 Persian monarchy, heroic and
- Capture in war, 218 aristocratic eras of the races
- Discovery, 221 composing the, 9
- objections to the popular Persians, the ancient, their
I veracity, 274
theory of Occupancy, 227
Ordinance of Louis Hutin, quoted, Puris of the Greeks, meaning of
82 the , 47
Orphans, Guardianship of male, Plebeian Wills of the Romans, 178
under the Roman Law, 142 - - legalised by, at the Twelve
Tables , 179
PACTES de Famille of France, - their influence on the civilisa-
tion of the modern world, 180
205
Pascal, his " Lettres Provin- Political ideas, early, 114
ciales," 313 --- foundation of aristocracies, 117
Paterfamilias in elementary com- Political Economy and Contract,
munities, 208 271
Polygamy, its influence on Primo-
V Patria Potestas, the, of the
Romans, 119 geniture , 215
- - of the Galatæ, 120 Possessory interdicts of the Ro-
- of the Greeks, 121 man Law, 259
causes which helped to mitigate Prætor , origin of the office of, 55
the stringency of the father's Edict of the, 37, 50, 56, 58
power over the persons of his - the Roman , compared with an
children, 124 English Chancellor , 57, 58
- liabilities of the Paterfamilias, - restraints on the Prætor , 58
128 --- the Prætor the chief equity
unity of person between the judge as well as the great
Paterfamilias and the Filius- common law magistrate, 59
Prætor Peregrinus , office of the, 55
familias, 128 Prætorian Edict of the Romans,
- rights and duties of the Pater-
familias , 128, 129, 208, 209 37, 50, 57, 58
the Patria Potestas not a dur- the Edictum Perpetuum, 56
able institution, 129 that of Salvius Julianus , 56, 58
 INDEX 365

PRÆTORIAN PROPERTY
Prætorian Edict, remedies given Property, " natural modes " of
by the, 260 acquisition , 217
Prætorian Will, the, 185 - Occupancy, 218
described , 186 - Capture in War, 218
Prescription of Property, history -- rule of Discovery, 221
of, 252 et seq. ―- history of the origin of pro-
Primogeniture, changes in the perty, 222
Law of Succession, caused by, - Blackstone on the theory of
200 Occupancy as the origin of
- almost destroyed by the property, 223
authors of the French code, - aphorism of Savigny on the
200, 201 origin of property, 226
- results of the French system , ―- objections to the popular
201 theory of Occupancy , 227
- rights of the first-born son - Co-ownership amongst the
amongst the Hindoos, 202 Hindoos, 231
-
— early history of Primogeniture, -- the Gens, or House , of the
203 Romans compared with the
Benefices , 203 Village Community of India,
- gradual transformation of 235
Benefices into hereditary Russian village co-ownership,
Fiefs, 204 236
the Pactes de Famille of France - Croatian and Sclavonian Laws
and the Haus-Gesetze of Ger- respecting the property of
many, 205 Families, 237, 238
causes of the diffusion of Primo- --- ancient difficulties of Aliena-
geniture, 206 tion, 241
in public offices or political --- natural classification of pro-
power amongst the Hindoos, perty, 242
but not in property, 207 ancient modes of transfer of
ancient forms of Primogeniture , property, 245
208 -- definition of the Res Mancipi ,
why did Primogeniture gradu- 246
ally supersede every other - tradition of property, 247
principle of Succession ? 209 -- distinction between Res Man-
earlier and later Primogeniture, cipi and Res Nec Mancipi,
210 248
- Hindoo rule of the eldest son Hindoo Law of Inheritances
and of the eldest line also, and Acquisitions, 249, 250
212 -law of movables and law of
- Celtic form of Primogeniture , land, according to the French
213 codes , 251
- Mahometan form , 215 and in England , 251
--influence of polygamy on Pri- - Usucapion, or Prescription, 252
mogeniture, 215 Cessio in Jure, or recovery, in
Progress, causes of the arrest of, of a Court of Law, of property
the greater part of mankind, 68 sought to be conveyed, 256
Property, early history of, 217 influence of Courts of Law and
 366 INDEX

PROPERTY ROMAN
of their procedure upon Pro- Regency, form of, according to
perty, 257 the French custom regulating
Property, distinction between Pro- the succession to the throne, 213
perty and Possession, 257 Reipus, the, of Germany, 250
-- and between Law and Equity Res Mancipi and Res Nec Mancipi,
in their conceptions of pro- 243, 248
prietary right, under the -- definition of the Res Mancipi,
Roman and English Law, 260 246
feudal view of Ownership, 262 Res nullius of the Roman Law,
Roman and barbarian law of 220
Ownership, 263 Responsa Prudentium of the Ro-
- Roman system of Tenancy, 265 mans described, 30
- the Coloni of the Romans and - similarity between them and
the Metayers of the South of English Case-law, 30
Europe, 266, 267 decline and extinction of the
- rights of the Emphyteuta, 267 Responses, 36, 37
-- the Agri Limitrophi of the Revolution, French, effects of the
Rhine and the Danube, 268 theory of the state of Nature on
Proscriptions, Roman, origin of the, 80
the, 346 Rex Sacrorum, or Rex Sacrificulus,
Pupilage or Wardship in modern office of the, 9, 55
jurisprudence, 143 Roman Law, I
compared with the Guardian- the Twelve Tables, 1 , 12, 30
ship of Orphans under the - influence of the sacra on the
Roman Law, 142 Law of Adoption and of
Wills, 6
QUASI-CONTRACT, 304 class of codes to which the
meaning of, in Roman Law, 305 Roman code belongs, 13
Quasi, meaning of the word, in — probable assistance afforded by
Roman Law, 305 the Greeks, 13
Quæstiones Perpetuæ of the Ro- - meaning of fictio, 23
mans, 341 - instances of fictiones cited, 23
- theory of the Quæstiones, 342, the Responsa Prudentium de-
343 scribed , 30
- - results traceable to the Quæs- — judicial functions of the Magis-
tiones , 347 trates of Republican Rome,
Quæstores Parricidii of the an- 32
cient Romans, 340 reasons why the Roman Law
Querela Inofficiosi Testamenti of was not popularised, 33
the old Roman Law, 191 sources of the characteristic
excellence of the Roman Law,
Quiritarian Law, the, 42
- principles of the, 52 34
-- difference between it and the - decline and extinction of the
Jus Gentium, 52 Responses, 36, 37
--- the Prætorian Edict, 37, 50, 56,
RECOVERIES, collusive, of pro- 58
perty in the Roman and English the Leges Corneliæ, 37, 38
Law, 256 - later jurisconsults, 37
 INDEX 367
ROMAN ROME
Roman Law, remarks on the Sta- Roman Law, influence of Roman
tute Law of the Romans, 37, 38 classifications , 230
and on the Equity of the Co-ownership of property re-
Romans , 39, 40 garded by the mature Roman
— golden age of Roman jurispru- Law as exceptional and mo-
dence, 49 mentary, 232
Roman Equity, 52, 59 - the Gens of the Romans com-
--- features common to both Eng- pared with an Indian Village
lish and Roman Equity, 60 Community, 235
et seq. Res Mancipi and Res Nec
-- International Law largely in- Mancipi, 243, 246
debted to Roman Law, 84, 85 Mancipation, 247
- - the Patria Potestas of the Usucapion , or Prescription, 252
Roman Law, 121 et seq. the Cessio in Jure, 256
-- Agnatic and Cognatic Relation- -- distinction between Property
ship, 129 and Possession , 257
- Perpetual Tutelage of Women, Roman and Barbarian Law,
135 263
-- Roman Marriage, 136, 137 Roman Contracts, 278 et seq.
-– Guardianship of male Orphans, - the Four Contracts, 288
141 connection between Theology
-Law of Persons- Master and and Roman Law, 314, 315
Slave. 143 causes of improvement in Ro-
- Testamentary Law, 153 et seq. man Law, 320
Wills anciently executed in the Roman Law in the Eastern
Comitia Calata, 176 , 178 Empire, 322
- ancient Roman Law of Intes- Civil Wrongs of the Roman
tate Succession , 177 Law, 328
- Roman Wills described, 178 - the Legis Actio Sacramenti,
- the Mancipation , 181 333
-- the Nuncupatio, 182 -old Roman Criminal Juris-
- - the Prætorian Will, 185 prudence, 339
--- first appearance of Sealing in - extreme multiplicity of Roman
the history of jurisprudence criminal tribunals, 346
as a mode of authentication, results traceable to the Quæs-
186 tiones, 347
Querela Inofficiosi Testamenti, Romans, causes of the rapid pro-
191 gress of the Stoical philosophy
- Disinherison of Children under, amongst the, 49
191 - their progress in legal im-
- Intestate Succession under, 193 provement, 50
Fidei-Commissa, or bequests in Rome, immigration of foreigners
trusts, 198 into, 41, 42
- rights of Co-heirs, 201 - exclusion of foreigners, under
Occupancy, 218 the early Republic, 42
- - Roman distinction between the See of, origin of the tendency
Law of Persons and the Law to attribute secular superio-
of Things, 230 rity to the, 94
 368 INDEX

ROME SOVEREIGNTY
Rome, decline of ecclesiastical in- brought into harmony with
fluence in international ques- Progressive Societies, 22
tions, 96 Societies, perils of early, 65
-early political ideas of, 114 — primitive, 111
Rousseau, J. J., influence of his - early moral doctrines, 112
-
— early political ideas, 114
writings, 77
- - his doctrine of an original fiction of Adoption, 115
Social Compact, 274, 275 foundation of aristocracies, 117
Russian villages, Co-ownership of principle of Local Contiguity,
the occupiers of, 237 117
the ancient Family, 117
SACRA, or Family Rites, of the the Patria Potestas, 119
Romans, 6, 24, 169, 170 - agnatic and cognatic relation-
- of the Hindoos, 171 ships, 129
Sacramental Action of the Ancient - Guardianship of Women, 135
Romans, 42 ancient Roman Marriage, 136
- - Master and Slave, 143
Salic Law, origin of the, 133
Savigny, on Possession and Pro- - uniformity of movement of the
perty, 258, 259 progressive societies , 149
his aphorism on the Origin of - disintegration of the Family,
Property, 226 149
Scævola, Q. Mucius, his manual of movement of societies from
the Civil Law, 36, 37 status to contract, 151
Scandinavian nations, their laws -- Universal Succession, 159, 160,
respecting the Perpetual Tute- 161
- primitive society and universal
lage of Women, 135 , 140
Sclavonian laws respecting the succession , 163
- - the ancient family a corpora-
property of families, 238
Sealing, first appearance of, in tion, 163
jurisprudence, as a mode of Society in primitive times not a
collection of individuals, but an
authentication, 186
Sin, mortal and venial, casuistical aggregation of families, 111
distinction between, 312 Solon, Attic code of, 14
"" Sophismes Anarchiques " of Du-
Sins known to primitive jurispru-
dence, 330 mont, remarks on, 81
Sovereign , origin of the doctrine
Slavery, ancient, 144 that the monarch is the fountain
under the Romans, 144
in the United States of America, of justice , 351
Sovereignty, territorial , proposi
144 tion of International Law on,
Socage, English law of, 206
Social Compact, Rousseau's doc- 90, 91
- - Tribe-sovereignty, 91
trine of an original, 274, 275
- Dr. Whewell quoted, 307 - Charlemagne and universal do-
Societies, stationary and pro- minion, 93
- Territorial sovereignty an off-
gressive, 20
difference between stationary shoot of feudalism , 93
and progressive societies, 21 the See of Rome, 94
- agencies by which Law is - - Hugh Capet 95
 INDEX 369

SOVEREIGNTY SUCCESSION
Sovereignty, the Anglo-Saxon Succession, the invention of Wills
princes , 95 due to the Romans, 172
-Naples , Spain, and Italy, 95 Roman ideas of Succession, 173
- Venice, 95 - - Testamentary Succession less
- points of junction between ancient than Intestate Suc-
territorial sovereignty and cession, 173
modern public law, 98 --- primitive operation of Wills,
Spain, territorial sovereignty of 175
the monarchs of, 95 Wills of the ancient Germans,
Status, movement of societies 175
from, to contract, 151 -Jewish and Bengalee Wills,
Statute Law of the Romans, 37, 40 174, 175
Stoic philosophy, principles of the, -- mode of execution of ancient
48 Roman Wills, 177
its rapid progress in Roman - description of ancient Roman
society, 48 Wills, 178
alliance of the Roman lawyers - influence of ancient Plebeian
with the Stoics, 49 Wills on the civilisation of
Succession, rules of, according to the modern world, 180
the Hindoo Customary law, 6 - - the Mancipation, 181
- Testamentary , 152 - relation of Wills to convey-
- early history, 152 ances , 180
- influence of the Church in en- - the Testament per æs et libram ,
forcing the sanctity of Wills, 181 , 189, 190
153 ·consequence of this relation of
- English law of, 154 Testaments to Conveyances ,
qualities necessarily attached 182
to Wills , 154 - remedies, 183
natural rights of testation, 155 ancient Wills not written, 183
- restraints imposed by the Code remarks on the expression
Napoléon, 157 Emptor Familiæ , 184
- nature of a Will, 157 the Prætorian Will, 185
-
- rights and duties of universal the Bonorum Possessio, and the
successor, 158 Bonorum Possessor, 187
usual Roman definition of an ―- improvements in the old Will,
Inheritance, 161 188, 189
- difference between modern Tes- ancient and modern ideas re-
tamentary jurisprudence and specting Wills and Succes-
the ancient law of Rome, sions, 191
162 - Disinherison of Children, 191
the Family regarded as a Cor- ― the age of Wills coeval with
poration, 163 that of Feudalism , 199
old Roman Law of Inheritance introduction of the principle of
and its notion of a Will, 168 Dower, 199
- ancient objects of Wills, 169 - rights of Heirs and Co-heirs
Sacra, or Family Rites, of the under the Roman Law, 201
Romans, 169 intestate , 173
- and of the Hindoos, 170, 171 ancient Roman law of, 177, 194

24
 370 INDEX

SUCCESSION WILLS
Sucession, the Justinian scale of cess of the treatise " De Jure
Intestate Succession, 195 Belli et Pacis " of Grotius, 97
-order of Intestate Succession Torts, law of, 328
among the Romans, 196 Tradition of property amongst the
- horror of intestacy felt by the Romans , 247
Romans, 197, 198 -— practical effect of a Mancipa-
- rights of all the children of the tion given to a Tradition, 247
deceased under the Roman Transfer of property, ancient
Law, 202 modes of, 246
--- Universal, 158, 167 Troglodytes, the, 276
! - in what it consists, 159 Turkey, rule of succession to the
- the universal successor, 160 throne of, 215
- formula of old Roman investi-
ture referred to, 169 ULPIAN, his attempt to distin-
Suttee of the Hindoos, 171 guish between the Jus Naturale
Sylla, L. Cornelius, his improve- and the Jus Gentium, 46 +
ments in the Roman Law, 37, 38 Universitas juris, in what it con-
sists, 158
TABLES, the Twelve Decemviral, Usucapion, principle of Roman
1, 12, 30 Law known as, 188
- collections of opinions interpre- history of, 252
tative of the, 30 Usus, or lower form of civil mar-
their legalisation of Plebeian riage of the ancient Romans,
Wills, 179 136
- - Law of the Twelve Tables re-
specting Testamentary Dis- VANDALS, the, referred to, 91
positions, 191, 192 Venetians, their lapse from tribe
Tablets , laws engraven on, 13 sovereignty to territorial sove-
Tacitus, value of his " Germany ' reignty, 95
as a record of primitive history, Village Communities of India, 231,
106 234 et seq.
- suspicions as to its fidelity, 107 Visigoths, the, referred to, 91
Tarquins, change in the adminis- Voltaire, referred to, 77
tration of the law after the
expulsion of the, 54, 55 WARFARE, ancient forms of, 219
Tenancy, Roman system of, 203 Wehrgeld, the, of Germany, 250
Testaments. See Succession, Tes- Whewell, Dr., on original Social
tamentary Compact, quoted, 307
Theft, ancient Roman Law of, his view of Moral Philosophy,
273, 336, 337 308
-modern breaches of trust, 273 Widow's share of her husband's
Themis and Themistes of the estate, 199
Greek Homeric poems, 3, 5, -- the reipus , or fine leviable on
III the re-marriage of a widow in
Theology, connection between it Germany, 250
and Roman Law, 315 Wills, influence of the Sacra
Thirty Years' War, influence of Gentilicia on the law of, 6
the horrors of the, on the suc- -- See Succession, Testamentary
 INDEX 371
WOMEN ZEUS
Women, laws respecting the status Women, tutelage of, amongst the
of, 134 Scandinavians , 135
- Roman law of the Perpetual - ancient Roman Marriage,
Tutelage of, 135 136
- amongst the Hindoos, 135 - later Roman Marriage, 137
- and amongst the Scandina- - special Proprietorship created
vians, 135 by the Court of Chancery for,
Guardianship of Women under 261
the Roman Law, 135
-- tutelage of, amongst the Hin- ZEUS, not a lawmaker, but a
doos , 135 judge, 4

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