Ancient Law .........................................................................................................................................................1

Henry Sumner Maine ..............................................................................................................................1

Preface ......................................................................................................................................................1

Chapter 1. Ancient Codes........................................................................................................................1

Chapter 2. Legal Fictions .........................................................................................................................7

Chapter 3. Law of Nature and Equity....................................................................................................13

Chapter 4. The Modern History of the Law of Nature..........................................................................21

Chapter 5. Primitive Society and Ancient Law.....................................................................................32

Chapter 6. The Early History of Testamentary Succession...................................................................48

Chapter 7. Ancient and Modern Ideas Respecting Wills and Successions ............................................60

Chapter 8. The Early History of Property ..............................................................................................68

Chapter 9. The Early History of Contract ..............................................................................................84

Chapter 10. The Early History of Delict and Crime............................................................................101

The chief object of the following pages is to indicate some of the earliest ideas of mankind, as they are

reflected in Ancient Law, and to point out the relation of those ideas to modern thought. Much of the inquiry

attempted could not have been prosecuted with the slightest hope of a useful result if there had not existed a

body of law, like that of the Romans, bearing in its earliest portions the traces of the most remote antiquity

and supplying from its later rules the staple of the civil institutions by which modern society is even now

controlled. The necessity of taking the Roman law as a typical system has compelled the author to draw from

it what may appear a disproportionate number of his illustrations; but it has not been his intention to write a

treatise on Roman jurisprudence, and he has as much as possible avoided all discussions which might give

that appearance to his work. The space allotted in the third and fourth chapter to certain philosophical

theories of the Roman Jurisconsults has been appropriated to them for two reasons. In the first place, those

theories appear to the author to have had a wider and more permanent influence on the thought and action of

the world than is usually supposed. Secondly, they are believed to be the ultimate source of most of the views

which have been prevalent, till quite recently, on the subjects treated of in this volume. It was impossible for

the author to proceed far with his undertaking without stating his opinion on the origin, meaning, and value of

The most celebrated system of jurisprudence known to the world begins, as it ends, with a Code. From the

commencement to the close of its history, the expositors of Roman Law consistently employed language

which implied that the body of their system rested on the Twelve Decemviral Tables, and therefore on a basis

of written law. Except in one particular, no institutions anterior to the Twelve Tables were recognised at

Rome. The theoretical descent of Roman jurisprudence from a code, the theoretical ascription of English law

to immemorial unwritten tradition, were the chief reasons why the development of their system differed from

the development of ours. Neither theory corresponded exactly with the facts, but each produced consequences

I need hardly say that the publication of the Twelve Tables is not the earliest point at which we can take up

the history of law. The ancient Roman code belongs to a class of which almost every civilised nation in the

world can show a sample, and which, so far as the Roman and Hellenic worlds were concerned, were largely

diffused over them at epochs not widely distant from one another. They appeared under exceedingly similar

circumstances, and were produced, to our knowledge, by very similar causes. Unquestionably, many jural

phenomena lie behind these codes and preceded them in point of time. Not a few documentary records exist

which profess to give us information concerning the early phenomena of law; but, until philology has effected

a complete analysis of the Sanskrit literature, our best sources of knowledge are undoubtedly the Greek

Homeric poems, considered of course not as a history of actual occurrences, but as a description, not wholly

idealised, of a state of society known to the writer. However the fancy of the poet may have exaggerated

certain features of the heroic age, the prowess of warrior and the potency of gods, there is no reason to

believe that it has tampered with moral or metaphysical conceptions which were not yet the subjects of

conscious observation; and in this respect the Homeric literature is far more trustworthy than those relatively

later documents which pretend to give an account of times similarly early, but which were compiled under

philosophical or theological influences. If by any means we can determine the early forms of jural

conceptions, they will be invaluable to us. These rudimentary ideas are to the jurist what the primary crusts of

the earth are to the geologist. They contain, potentially all the forms in which law has subsequently exhibited

itself. The haste or the prejudice which has generally refused them all but the most superficial examination,

must bear the blame of the unsatisfactory condition in which we find the science of jurisprudence. The

inquiries of the jurist are in truth prosecuted much as inquiry in physic and physiology was prosecuted before

observation had taken the place of assumption. Theories, plausible and comprehensive, but absolutely

unverified, such as the Law of Nature or the Social Compact, enjoy a universal preference over sober

research into the primitive history of society and law; and they obscure the truth not only by diverting

attention from the only quarter in which it can be found, but by that most real and most important influence

which, when once entertained and believed in, they are enabled to exercise on the later stages of

The earliest notions connected with the conception, now so fully developed, of a law or rule of life, are those

contained in the Homeric words "Themis" and "Themistes." "Themis," it is well known, appears in the later

Greek pantheon as the Goddess of Justice, but this is a modern and much developed idea, and it is in a very

different sense that Themis is described in the Iliad as the assessor of Zeus. It is now clearly seen by all

trustworthy observer of the primitive condition of mankind that, in the infancy of the race, men could only

account for sustained or periodically recurring action by supposing a personal agent. Thus, the wind blowing

was a person and of course a divine person; the sun rising, culminating, and setting was a person and a divine

person; the earth yielding her increase was a person and divine. As, then, in the physical world, so in the

moral. When a king decided a dispute by a sentence, the judgment was assumed to be the result of direct

inspiration. The divine agent, suggesting judicial awards to kings or to gods, the greatest of kings, was

Themis. The peculiarity of the conception is brought out by the use of the plural. Themistes, Themises, the

plural of Themis, are the awards themselves, divinely dictated to the judge. Kings are spoken of as if they had

a store of "Themistes" ready to hand for use; but it must be distinctly understood that they are not laws, but

judgments. "Zeus, or the human king on earth," says Mr. Grote, in his History of Greece, "is not a lawmaker,

but a judge." He is provided with Themistes, but, consistently with the belief in their emanation from above,

they cannot be supposed to be connected by any thread of principle; they are separate, isolated judgments.

Even in the Homeric poems, we can see that these ideas are transient. Parities of circumstance were probably

commoner in the simple mechanism of ancient society than they are now, and in the succession of similar

cases awards are likely to follow and resemble each other. Here we have the germ or rudiment of a Custom, a

conception posterior to that of Themistes or judgments. However strongly we, with our modern associations,

may be inclined to lay down a priori that the notion of a Custom must precede that of a judicial sentence, and

that a judgment must affirm a Custom or punish its breach, it seems quite certain that the historical order of

the ideas is that in which I have placed them. The Homeric word for a custom in the embryo is sometimes

"Themis" in the singularmore often "Dike," the meaning of which visibly fluctuates between a "judgment"

and a "custom" or "usage." Nomos, a Law, so great and famous a term in the political vocabulary of the later

This notion of a divine agency, suggesting the Themistes, and itself impersonated in Themis, must be kept

apart from other primitive beliefs with which a superficial inquirer might confound it. The conception of the

Deity dictating an entire code or body of law, as in the case of the Hindoo laws of Menu, seems to belong to a

range of ideas more recent and more advanced. "Themis" and "Themistes" are much less remotely linked

with that persuasion which clung so long and so tenaciously to the human mind, of a divine influence

underlying and supporting every relation of life, every social institution. In early law, and amid the rudiments

of political thought, symptoms of this belief meet us on all sides. A supernatural presidency is supposed to

consecrate and keep together all the cardinal institutions of those times, the State, the Race, and the Family.

Men, grouped together in the different relations which those institutions imply, are bound to celebrate

periodically common rites and to offer common sacrifices; and every now and then the same duty is even

more significantly recognised in the purifications and expiations which they perform, and which appear

intended to deprecate punishment for involuntary or neglectful disrespect. Everybody acquainted with

ordinary classical literature will remember the sacra gentilicia, which exercised so important an influence on

the early Roman law of adoption and of wills. And to this hour the Hindoo Customary Law, in which some of

the most curious features of primitive society are stereotyped, makes almost all the rights of persons and all

the rules of succession hinge on the due solemnisation of fixed ceremonies at the dead man's funeral, that is,

Before we quit this stage of jurisprudence, a caution may be usefully given to the English student. Bentham,

in his Fragment on Government, and Austin, in his Province of Jurisprudence Determined, resolve every law

into a command of the lawgiver, an obligation imposed thereby on the citizen, and a sanction threatened in

the event of disobedience; and it is further predicated of the command, which is the first element in a law,

that it must prescribe, not a single act, but a series or number of acts of the same class or kind. The results of

this separation of ingredients tally exactly with the facts of mature jurisprudence; and, by a little straining of

language, they may be made to correspond in form with all law, of all kinds, at all epochs. It is not, however,

asserted that the notion of law entertained by the generality is even now quite in conformity with this

dissection; and it is curious that, the farther we penetrate into the primitive history of thought, the farther we

find ourselves from a conception of law which at all resembles a compound of the elements which Bentham

determined. It is certain that, in the infancy of mankind, no sort of legislature, not even a distinct author of

law, is contemplated or conceived of. Law has scarcely reached the footing of custom; it is rather a habit. It

is, to use a French phrase, "in the air." The only authoritative statement of right and wrong is a judicial

sentence after the facts, not one presupposing a law which has been violated, but one which is breathed for

the first time by a higher power into the judge's mind at the moment of adjudication. It is of course extremely

difficult for us to realise a view so far removed from us in point both of time and of association, but it will

become more credible when we dwell more at length on the constitution of ancient Society, in which every

man, living during the greater part of his life under the patriarchal despotism, was practically controlled in all

his actions by a regimen not of law but of caprice. I may add that an Englishman should be better able than a

foreigner to appreciate the historical fact that the "Themistes" preceded any conception of law, because, amid

the many inconsistent theories which prevail concerning the character of English jurisprudence, the most

popular, or at all events the one which most affects practice, is certainly a theory which assumes that

adjudged cases and precedents exist antecedently to rules, principles, and distinctions. The "Themistes" have

too, it should be remarked, the characteristic which, in the view of Bentham and Austin, distinguishes single

or mere commands from laws. A true law enjoins on all the citizens indifferently a number of acts similar in

class or kind; and this is exactly the feature of a law which has most deeply impressed itself on the popular

mind, Causing the term "law" to be applied to mere uniformities, successions, and similitudes. A command

prescribes only a single act, and it is to commands, therefore, that "Themistes" are more akin than to laws.

They are simply adjudications on insulated states of fact, and do not necessarily follow each other in any

The literature of the heroic age discloses to us law in the germ under the "Themistes" and a little more

developed in the conception of "Dike." The next stage which we reach in the history of jurisprudence is

strongly marked and surrounded by the utmost interest. Mr. Grote, in the second part and second chapter of

his History, has fully described the mode in which society gradually clothed itself with a different character

from that delineated by Homer. Heroic kingship depended partly on divinely given prerogative, and partly on

the possession of supereminent strength, courage, and wisdom. Gradually, as the impression of the monarch's

sacredness became weakened, and feeble members occurred in the series of hereditary kings, the royal power

decayed, and at last gave way to the dominion of aristocracies. If language so precise can be used of the

revolution, we might say that the office of the king was usurped by that council of chiefs which Homer

repeatedly alludes to and depicts. At all events from an epoch of kingly rule we come everywhere in Europe

to an era of oligarchies; and even where the name of the monarchical functions does not absolutely disappear,

the authority of the king is reduced to a mere shadow. He becomes a mere hereditary general; as in

Lacedaemon, 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 univerally

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 quasisacred character, their strength does not seem to have resided in their

pretended sanctity. Unless they were prematurely overthrown by the popular party, they all ultimately

approached very closely to what we should now understand by a political aristocracy. The changes which

society underwent in the communities of the further Asia occurred of course at periods long anterior in point

of time to these revolutions of the Italian and Hellenic worlds; but their relative place in civilisation appear to

have been the same, and they seem to have been exceedingly similar in general character. There is some

evidence that the races which were subsequently united under the Persian monarchy, and those which

peopled the peninsula of India, had all their heroic age and their era of aristocracies; but a military and a

religious oligarchy appear to have grown up separately, nor was the authority of the king generally

superseded. Contrary, too, to the course of events in the West, the religious element in the East tended to get

the better of the military and political. Military and civil aristocracies disappear, annihilated or crushed into

insignificance between the kings and the sacerdotal order; and the ultimate result at which we arrive is, a

monarch enjoying great power, but circumscribed by the privileges of a caste of priests. With these

differences, however, that in the East aristocracies became religious, in the West civil or political, the

proposition that a historical era of aristocracies succeeded a historical era of heroic kings may be considered

as true, if not of all mankind, at all events of all branches of the IndoEuropean 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 extrahuman interposition. What the juristical oligarchy now claims is to

monopolise the knowledge of the laws, to have the exclusive possession of the principles by which quarrels

are decided. We have in fact arrived at the epoch of Customary Law. Customs or Observances now exist as a

substantive aggregate, and are assumed to be precisely known to the aristocratic order or caste. Our

authorities leave us no doubt that the trust lodged with the oligarchy was sometimes abused, but it certainly

ought not to be regarded as a mere usurpation or engine of tyranny. Before the invention of writing, and

during the infancy of the art, an aristocracy invested with judicial privileges formed the only expedient by

which accurate preservation of the customs of the race or tribe could be at all approximated to. Their

genuineness was, so far as possible, insured by confiding them to the recollection of a limited portion of the

The epoch of Customary Law, and of its custody by a privileged order, is a very remarkable one. The

condition of the jurisprudence which it implies has left traces which may still be detected in legal and popular

phraseology. The law, thus known exclusively to a privileged minority, whether a caste, an aristocracy, a

priestly tribe, or a sacerdotal college, is true unwritten law. Except this, there is no such thing as unwritten

law in the world. English caselaw is sometimes spoken of as unwritten, and there are some English theorists

who assure us that if a code of English jurisprudence were prepared we should be turning unwritten law into

written conversion, as they insist, if not of doubtful policy, at all events of the greatest seriousness. Now,

it is quite true that there was once a period at which the English common law might reasonably have been

termed unwritten. The elder English judges did really pretend to knowledge of rules, principles, and

distinctions which were not entirely revealed to the bar and to the laypublic. Whether all the law which they

claimed to monopolise was really unwritten, is exceedingly questionable; but at all events, on the assumption

that there was once a large mass of civil and criminal rules known exclusively to the judges, it presently

ceased to be unwritten law. As soon as the Courts at Westminster Hall began to base their judgments on cases

recorded, whether in the year books or elsewhere, the law which they administered became written law. At

the present moment a rule of English law has first to be disentangled from the recorded facts of adjudged

printed precedents, then thrown into a form of words varying with the taste, precision, and knowledge of the

particular judge, and then applied to the circumstances of the case for adjudication. But at no stage of this

process has it any characteristic which distinguishes it from written law. It is written caselaw, and only

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 seaboard of Western Asia, these codes all made

their appearance at periods much the same everywhere, not, I mean, at periods identical in point of time, but

similar in point of the relative progress of each community. Everywhere, in the countries I have named, laws

engraven on tablets and published to the people take the place of usages deposited with the recollection of a

privileged oligarchy. It must not for a moment be supposed that the refined considerations now urged in

favour of what is called codification had any part or place in the change I have described. The ancient codes

were doubtless originally suggested by the discovery and diffusion of the art of writing. It is true that the

aristocracies seem to have abused their monopoly of legal knowledge; and at all events their exclusive

possession of the law was a formidable impediment to the success of those popular movements which began

to be universal in the western world. But, though democratic sentiment may have added to their popularity,

the codes were certainly in the main a direct result of the invention of writing. Inscribed tablets were seen to

be a better depositary of law, and a better security for its accurate preservation, than the memory of a number

The Roman code belongs to the class of codes I have been describing. Their value did not consist in any

approach to symmetrical classifications, or to terseness and clearness of expression, but in their publicity, and

in the knowledge which they furnished to everybody, as to what he was to do, and what not to do. It is,

indeed, true that the Twelve Tables of Rome do exhibit some traces of systematic arrangement, but this is

probably explained by the tradition that the framers of that body of law called in the assistance of Greeks who

enjoyed the later Greek experience in the art of lawmaking. 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

But, whatever to a modern eye are the singularities of these Codes, their importance to ancient societies was

unspeakable. The question and it was one which affected the whole future of each community was not

so much whether there should be a code at all, for the majority of ancient societies seem to have obtained

them sooner or later, and, but for the great interruption in the history of jurisprudence created by feudalism, it

is likely that all modern law would be distinctly traceable to one or more of these fountainheads. But the

point on which turned the history of the race was, at what period, at what stage of their social progress, they

should have their laws put into writing. In the western world the plebeian or popular element in each state

successfully assailed the oligarchical monopoly; and a code was nearly universally obtained early in the

history of the Commonwealth. But in the East, as I have before mentioned, the ruling aristocracies tended to

become religious rather than military or political, and gained, therefore, rather than lost in power; while in

some instances the physical conformation of Asiatic countries had the effect of making individual

communities larger and more numerous than in the West; and it is a known social law that the larger the

space over which a particular set of institutions is diffused, the greater is its tenacity and vitality. From

whatever cause, the codes obtained by Eastern societies were obtained, relatively, much later than by

Western, and wore a very different character. The religious oligarchies of Asia, either for their own guidance,

or for the relief of their memory, or for the instruction of their disciples, seem in all cases to have ultimately

embodied their legal learning in a code; but the opportunity of increasing and consolidating their influence

was probably too tempting to be resisted. Their complete monopoly of legal knowledge appears to have

enabled them to put off on the world collections, not so much of the rules actually observed as of the rules

which the priestly order considered proper to be observed. The Hindoo code, called the Laws of Menu, which

is certainly a Brahmin compilation, undoubtedly enshrines many genuine observances of the Hindoo race, but

the opinion of the best contemporary orientalists is, that it does not, as a whole, represent a set of rules ever

actually administered in Hindostan. It is, in great part, an ideal picture of that which, in the view of the

Brahmins, ought to be the law. It is consistent with human nature and with the special motives of their author,

that codes like that of Menu should pretend to the highest antiquity and claim to have emanated in their

complete form from the Deity. Menu, according to Hindoo mythology, is an emanation from the supreme

God; but the compilation which bears his name, though its exact date is not easily discovered, is, in point of

Among the chief advantages which the Twelve Tables and similar codes conferred on the societies which

obtained them, was the protection which they afforded against the frauds of the privileged oligarchy and also

against the spontaneous depravation and debasement of the national institutions. The Roman Code was

merely an enunciation in words of the existing customs of the Roman people. Relatively to the progress of

the Romans in civilisation, it was a remarkably early code, and it was published at a time when Roman

society had barely emerged from that intellectual condition in which civil obligation and religious duty are

inevitably confounded. Now a barbarous society practising a body of customs, is exposed to some especial

dangers which may be absolutely fatal to its progress in civilisation. The usages which a particular

community is found to have adopted in its infancy and in its primitive seats are generally those which are on

the whole best suited to promote its physical and moral wellbeing; and, if they are retained in their integrity

until new social wants have taught new practices, the upward march of society is almost certain. But

unhappily there is a law of development which ever threatens to operate upon unwritten usage. The customs

are of course obeyed by multitudes who are incapable of understanding the true ground of their expediency,

and who are therefore left inevitably to invent superstitious reasons for their permanence. A process then

commences which may be shortly described by saying that usage which is reasonable generates usage which

is unreasonable. Analog, the most valuable of instruments in the maturity of jurisprudence, is the most

dangerous of snares in its infancy. Prohibitions and ordinances, originally confined, for good reasons, to a

single description of acts, are made to apply to all acts of the same class, because a man menaced with the

anger of the gods for doing one thing, feels a natural terror in doing any other thing which is remotely like it.

After one kind of food has interdicted for sanitary reasons, the prohibition is extended to all food resembling

it, though the resemblance occasionally depends on analogies the most fanciful. So, again, a wise provision

for insuring general cleanliness dictates in time long routines of ceremonial ablution; and that division into

classes which at a particular crisis of social history is necessary for the maintenance of the national existence

degenerates into the most disastrous and blighting of all human institutions Caste. The fate of the Hindoo

law is, in fact, the measure of the value of the Roman code. Ethnology shows us that the Romans and the

Hindoos sprang from the same original stock, and there is indeed a striking resemblance between what appear

to have been their original customs. Even now, Hindoo jurisprudence has a substratum of forethought and

sound judgment, but irrational imitation has engrafted in it an immense apparatus of cruel absurdities. From

these corruptions the Romans were protected by their code. It was compiled while the usage was still

wholesome, and a hundred years afterwards it might have been too late. The Hindoo law has been to a great

extent embodied in writing, but, ancient as in one sense are the compendia which still exist in Sanskrit, they

contain ample evidence that they were drawn up after the mischief had been done. We are not of course

entitled to say that if the Twelve Tables had not been published the Romans would have been condemned to a

civilisation as feeble and perverted as that of the Hindoos, but thus much at least is certain, that with their

When primitive law has once been embodied in a Code, there is an end to what may be called its spontaneous

development. Henceforward the changes effected in it, if effected at all, are effected deliberately and from

without. It is impossible to suppose that the customs of any race or tribe remained unaltered during the whole

of the long in some instances the immense interval between their declaration by a patriarchal monarch

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

deliberately. But from the little we know of the progress of law during this period, we are justified in

assuming that set purpose had the very smallest share in producing change. Such innovations on the earliest

usages as disclose themselves appear to have been dictated by feelings and modes of thought which, under

our present mental conditions, we are unable to comprehend. A new era begins, however, with the Codes.

Wherever, after this epoch, we trace the course of legal modification we are able to attribute it to the

conscious desire of improvement, or at all events of compassing objects other than those which were aimed at

It may seem at first sight that no general propositions worth trusting can be elicited from the history of legal

systems subsequent to the codes. The field is too vast. We cannot be sure that we have included a sufficient

number of phenomena in our observations, or that we accurately understand those which we have observed.

But the undertaking will be seen to be more feasible, if we consider that after the epoch of codes the

distinction between stationary and progressive societies begins to make itself felt. It is only with the

progressive that we are concerned, and nothing is more remarkable than their extreme fewness. In spite of

overwhelming evidence, it is most difficult for a citizen of western Europe to bring thoroughly home to

himself the truth that the civilisation which surrounds him is a rare exception in the history of the world. The

tone of thought common among us, all our hopes, fears, and speculations, would be materially affected, if we

had vividly before us the relation of the progressive races to the totality of human life. It is indisputable that

much the greatest part of mankind has never shown a particle of desire that its civil institutions should be

improved since the moment when external completeness was first given to them by their embodiment in

some permanent record. One set of usages has occasionally been violently overthrown and superseded by

another; here and there a primitive code, pretending to a supernatural origin, has been greatly extended, and

distorted into the most surprising forms, by the perversity of sacerdotal commentators; but, except in a small

section of the world, there has been nothing like the gradual amelioration of a legal system. There has been

material civilisation, but, instead of the civilisation expanding the law, the law has limited the civilisation.

The study of races in their primitive condition affords us some clue to the point at which the development of

certain societies has stopped. We can see that Brahminical India has not passed beyond a stage which occurs

in the history of all the families of mankind, the stage at which a rule of law is not yet discriminated from a

rule of religion. The members of such a society consider that the transgression of a religious ordinance should

be punished by civil penalties, and that the violation of a civil duty exposes the delinquent to divine

correction. In China this point has been passed, but progress seems to have been there arrested, because the

civil laws are coextensive with all the ideas of which the race is capable. The difference between the

stationary and progressive societies is, however, one of the great secrets which inquiry has yet to penetrate.

Among partial explanations of it I venture to place the considerations urged at the end of the last chapter. It

may further be remarked that no one is likely to succeed in the investigation who does not clearly realise that

the stationary condition of the human race is the rule, the progressive the exception. And another

indispensable condition of success is an accurate knowledge of Roman law in all its principal stages. The

Roman jurisprudence has the longest known history of any set of human institutions. The character of all the

changes which it underwent is tolerably well ascertained. From its commencement to its close, it was

progressively modified for the better, or for what the author of the modification conceived to be the better,

and the course of improvement was continued through periods at which all the rest of human thought and

action materially slackened its pace, and repeatedly threatened to settle down into stagnation.

I confine myself in what follows to the progressive societies. With respect to them it may be laid down that

social necessities and social opinion are always more or less in advance of Law. We may come indefinitely

near to the closing of the gap between them, but it has a perpetual tendency to reopen. Law is stable; the

societies we are speaking of are progressive. The greater or less happiness of a people depends on the degree

A general proposition of some value may be advanced with respect to the agencies by which Law is brought

into harmony with society These instrumentalities seem to me to be three in number, Legal Fictions, Equity,

and Legislation. Their historical order is that in which I have placed them. Sometimes two of them will be

seen operating together, and there are legal systems which have escaped the influence of one or other of

them. But I know of no instance in which the order of their appearance has been changed or inverted. The

early history of one of them, Equity, is universally obscure, and hence it may be thought by some that certain

isolated statutes, reformatory of the civil law, are older than any equitable jurisdiction. My own belief is that

remedial Equity is everywhere older than remedial Legislation; but, should this be not strictly true, it would

only be necessary to limit the proposition respecting their order of sequence to the periods at which they

exercise a sustained and substantial influence in trans forming the original law.

I employ the word "fiction" in a sense considerably wider than that in which English lawyer are accustomed

to use it, and with a meaning much more extensive than that which belonged to the Roman "fictiones." Fictio,

in old Roman law, is properly a term of pleading, and signifies a false averment on the part of the plaintiff

which the defendant was not allowed to traverse; such, for example, as an averment that the plaintiff was a

Roman citizen, when in truth he was a foreigner. The object of these "fictiones" was, of course, to give

jurisdiction, and they therefore strongly resembled the allegations in the writs of the English Queen's Bench,

and Exchequer, by which those Courts contrived to usurp the jurisdiction of the Common Pleas: the

allegation that the defendant was in custody of the king's marshal, or that the plaintiff was the king's debtor,

and could not pay his debt by reason of the defendant's default. But I now employ the expression "Legal

Fiction" to signify any assumption which conceals, or affects to conceal, the fact that a rule of law has

undergone alteration, its letter remaining unchanged, its operation being modified. The words, therefore,

include the instances of fictions which I have cited from the English and Roman law, but they embrace much

more, for I should speak both of the English Caselaw and of the Roman Responsa Prudentum as resting on

fictions. Both these examples will be examined presently. The fact is in both cases that the law has been

wholly changed; the fiction is that it remains what it always was. It is not difficult to understand why fictions

in all their forms are particularly congenial to the infancy of society. They satisfy the desire for improvement,

which is not quite wanting, at the same time that they do not offend the superstitious disrelish for change

which is always present. At a particular stage of social progress they are invaluable expedients for

overcoming the rigidity of law, and, indeed, without one of them, the Fiction of Adoption which permits the

family tie to be artificially created, it is difficult to understand how society would ever have escaped from its

swaddling clothes, and taken its first steps towards civilisation. We must, therefore, not suffer ourselves to be

affected by the ridicule which Bentham pours on legal fictions wherever he meets them. To revile them as

merely fraudulent is to betray ignorance of their peculiar office in the historical development of law. But at

the same time it would be equally foolish to agree with those theorists, who, discerning that fictions have had

their uses, argue that they ought to be stereotyped in our system. They have had their day, but it has long

since gone by. It is unworthy of us to effect an admittedly beneficial object by so rude a device as a legal

fiction. I cannot admit any anomaly to be innocent, which makes the law either more difficult to understand

or harder to arrange in harmonious order. Now legal fictions are the greatest of obstacles to symmetrical

classification. The rule of law remains sticking in the system, but it is a mere shell. It has been long ago

undermined, and a new rule hides itself under its cover. Hence there is at once a difficulty in knowing

whether the rule which is actually operative should be classed in its true or in its apparent place, and minds of

different casts will differ as to the branch of the alternative which ought to be selected. If the English law is

ever to assume an orderly distribution, it will be necessary to prune away the legal fictions which, in spite of

The next instrumentality by which the adaptation of law to social wants is carried on I call Equity, meaning

by that word any body of rules existing by the side of the original civil law, founded on distinct principles

and claiming incidentally to supersede the civil law in virtue of a superior sanctity inherent in those

principles. The Equity whether of the Roman Praetors or of the English Chancellors, differs from the Fictions

which in each case preceded it, in that the interference with law is open and avowed. On the other hand, it

differs from Legislation, the agent of legal improvement which comes after it, in that its claim to authority is

grounded, not on the prerogative of any external person or body, not even on that of the magistrate who

enunciates it, but on the special nature of its principles, to which it is alleged that all law ought to conform.

The very conception of a set of principles, invested with a higher sacredness than those of the original law

and demanding application independently of the consent of any external body belongs to a much more

advanced stage of thought than that to which legal fictions originally suggested themselves.

Legislation, the enactments of a legislature which, whether it take the form of an autocratic prince or of a

parliamentary assembly, is the assumed organ of the entire society, is the last of the ameliorating

instrumentalities. It differs from Legal Fictions just as Equity differs from them, and it is also distinguished

from Equity, as deriving its authority from an external body or person. Its obligatory force is independent of

its principles. The legislature, whatever be the actual restraints imposed on it by public opinion, is in theory

empowered to impose what obligations it pleases on the members of the community. There is nothing to

prevent its legislating in the wantonness of caprice. Legislation may be dictated by equity, if that last word be

used to indicate some standard of right and wrong to which its enactments happen to be adjusted; but then

these enactments are indebted for their binding force to the authority of the legislature and not to that of the

principles on which the legislature acted; and thus they differ from rules of Equity, in the technical sense of

the word, which pretend to a paramount sacredness entitling them at once to the recognition of the courts

even without the concurrence of prince or parliamentary assembly. It is the more necessary to note these

differences, because a student of Bentham would be apt to confound Fictions, Equity, and Statute law under

the single head of legislation. They all, he would say, involve lawmaking; 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

It would be easy to select from almost any regularly developed body of rules examples of legal fictions,

which at once betray their true character to the modern observer. In the two instances which I proceed to

consider, the nature of the expedient employed is not so readily detected. The first authors of these fictions

did not perhaps intend to innovate, certainly did not wish to be suspected of innovating. There are, moreover,

and always have been, persons who refuse to see any fiction in the process, and conventional language bear

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

We in England are well accustomed to the extension, modification, and improvement of law by a machinery

which, in theory, is incapable of altering one jot or one line of existing jurisprudence. The process by which

this virtual legislation is effected is not so much insensible as unacknowledged. With respect to that great

portion of our legal system which is enshrined in cases and recorded in law reports, we habitually employ a

double language and entertain, as it would appear, a double and inconsistent set of ideas. When a group of

facts come before an English Court for adjudication, the whole course of the discussion between the judge

and the advocate assumes that no question is, or can be, raised which will call for the application of any

principles but old ones, or any distinctions but such as have long since been allowed. It is taken absolutely for

granted that there is somewhere a rule of known law which will cover the facts of the dispute now litigated,

and that, if such a rule be not discovered, it is only that the necessary patience, knowledge, or acumen is not

forthcoming to detect it. Yet the moment the judgment has been rendered and reported, we slide

unconsciously or unavowedly into a new language and a new train of thought. We now admit that the new

decision has modified the law. The rules applicable have, to use the very inaccurate expression sometimes

employed, become more elastic. In fact they have been changed. A clear addition has been made to the

precedents, and the canon of law elicited by comparing the precedents is not the same with that which would

have been obtained if the series of cases had been curtailed by a single example. The fact that the old rule has

been repealed, and that a new one has replaced it, eludes us, because we are not in the habit of throwing into

precise language the legal formulas which we derive from the precedents, so that a change in their tenor is not

easily detected unless it is violent and glaring. I shall not now pause to consider at length the causes which

have led English lawyers to acquiesce in these curious anomalies. Probably it will be found that originally it

was the received doctrine that somewhere, in nubibus or in gremio magistratuum, there existed a complete,

coherent, symmetrical body of English law, of an amplitude sufficient to furnish principles which would

apply to any conceivable combination of circumstances. The theory was at first much more thoroughly

believed in than it is now, and indeed it may have had a better foundation. The judges of the thirteenth

century may have really had at their command a mine of law unrevealed to the bar and to the laypublic, for

there is some reason for suspecting that in secret they borrowed freely, though not always wisely, from

current compendia of the Roman and Canon laws. But that storehouse was closed so soon as the points

decided at Westminster Hall became numerous enough to supply a basis for a substantive system of

jurisprudence; and now for centuries English practitioner 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 caselaw in those particulars

which I have noticed, was known to the Romans under the name of the Responsa Prudentum, the "answers of

the learned in the law." The form of these Responses varied a good deal at different periods of the Roman

jurisprudence, but throughout its whole course they consisted of explanatory glosses on authoritative written

documents, and at first they were exclusively collections of opinions interpretative of the Twelve Tables. As

with us, all legal language adjusted itself to the assumption that the text of the old Code remained unchanged.

There was the express rule. It overrode all glosses and comments, and no one openly admitted that any

interpretation of it, however eminent the interpreter, was safe from revision on appeal to the venerable texts.

Yet in point of fact, Books of Responses bearing the names of leading jurisconsults obtained an authority at

least equal to that of our reported cases, and constantly modified, extended, limited or practically overruled

the provisions of the Decemviral law. The authors of the new jurisprudence during the whole progress of its

formation professed the most sedulous respect for the letter of the Code. They were merely explaining it,

deciphering it, bringing out its full meaning; but then, in the result, by piecing texts together, by adjusting the

law to states of fact which actually presented themselves and by speculating on its possible application to

others which might occur, by introducing principles of interpretation derived from the exegesis of other

written documents which fell under their observation, they educed a vast variety of canons which had never

been dreamed of by the compilers of the Twelve Tables and which were in truth rarely or never to be found

there. All these treatises of the jurisconsults claimed respect on the ground of their assumed conformity with

the Code, but their comparative authority depended on the reputation of the particular jurisconsults who gave

them to the world. Any name of universally acknowledged greatness clothed a Book of responses with a

binding force hardly less than that which belonged to enactments of the legislature; and such a book in its

turn constituted a new foundation on which a further body of jurisprudence might rest. The responses of the

early lawyers were not however published, in the modern sense, by their author. They were recorded and

edited by his pupils, and were not therefore in all probability arranged according to any scheme of

classification. The part of the students in these publications must be carefully noted, because the service they

rendered to their teacher seems to have been generally repaid by his sedulous attention to the pupils'

education. The educational treatises called Institutes or Commentaries, which are a later fruit of the duty then

recognised, are among the most remarkable features of the Roman system. It was apparently in these

Institutional works, and not in the books intended for trained lawyers, that the jurisconsults gave to the public

their classifications and their proposals for modifying and improving the technical phraseology.

In comparing the Roman Responsa Prudentum with their nearest English counterpart, it must be carefully

borne in mind that the authority by which this part of the Roman jurisprudence was expounded was not the

bench, but the bar. The decision of a Roman tribunal, though conclusive in the particular case, had no ulterior

authority except such as was given by the professional repute of the magistrate who happened to be in office

for the time. Properly speaking, there was no institution at Rome during the republic analogous to the English

Bench, the Chambers of imperial Germany, or the Parliaments of Monarchical France. There were

magistrates indeed, invested with momentous judicial functions in their several departments, but the tenure of

the magistracies was but for a single year, so that they are much less aptly compared to a permanent

judicature than to a cycle of offices briskly circulating among the leaders of the bar. Much might be said on

the origin of a condition of things which looks to us like a startling anomaly, but which was in fact much

more congenial than our own system to the spirit of ancient societies, tending, as they always did, to split into

distinct orders which, however exclusive themselves, tolerated no professional hierarchy above them.

It is remarkable that this system did not produce certain effects which might on the whole have been expected

from it. It did not, for example, popularise the Roman law it did not, as in some of the Greek republics,

lessen the effort of intellect required for the mastery of the science, although its diffusion and authoritative

exposition were opposed by no artificial barriers. On the contrary, if it had not been for the operation of a

separate set of causes, there were strong probabilities that the Roman jurisprudence would have become as

minute, technical, and difficult as any system which has since prevailed. Again, a consequence which might

still more naturally have been looked for, does not appear at any time to have exhibited itself. The

jurisconsults, until the liberties of Rome were overthrown, formed a class which was quite undefined and

must have fluctuated greatly in numbers; nevertheless, there does not seem to have existed a doubt as to the

particular individuals whose opinion, in their generation, was conclusive on the cases submitted to them. The

vivid pictures of a leading jurisconsult's daily practice which abound in Latin literature the clients from

the country flocking to his antechamber in the early morning, and the students standing round with their

notebooks to record the great lawyer's replies are seldom or never identified at any given period with

more than one or two conspicuous names. Owing too to the direct contact of the client and the advocate, the

Roman people itself seems to have been always alive to the rise and fall of professional reputation, and there

is abundance of proof, more particularly in the wellknown oration of Cicero, Pro Muraena, that the

reverence of the commons for forensic success was apt to be excessive rather than deficient.

We cannot doubt that the peculiarities which have been noted in the instrumentality by which the

development of the Roman law was first effected, were the source of its characteristic excellence, its early

wealth in principles. The growth and exuberance of principle was fostered, in part, by the competition among

the expositors of the law, an influence wholly unknown where there exists a Bench, the depositaries intrusted

by king or commonwealth with the prerogative of justice. But the chief agency, no doubt, was the

uncontrolled multiplication of cases for legal decision. The state of facts which caused genuine perplexity to a

country client was not a whit more entitled to form the basis of the jurisconsult's Response, or legal decision,

than a set of hypothetical circumstances propounded by an ingenious pupil. All combinations of fact were on

precisely the same footing, whether they were real or imaginary. It was nothing to the jurisconsult that his

opinion was overruled for the moment by the magistrate who adjudicated on his client's case, unless that

magistrate happened to rank above him in legal knowledge or the esteem of his profession. I do not, indeed,

mean it to be inferred that he would wholly omit to consider his client's advantage, for the client was in

earlier times the great lawyer's constituent and at a later period his paymaster, but the main road to the

rewards of ambition lay through the good opinion of his order, and it is obvious that under such a system as I

have been describing this was much more likely to be secured by viewing each case as an illustration of a

great principle, or an exemplification of a broad rule, than by merely shaping it for an insulated forensic

triumph. A still more powerful influence must have been exercised by the want of any distinct check on the

suggestion or invention of possible questions. Where the data can be multiplied at pleasure, the facilities for

evolving a general rule are immensely increased. As the law is administered among ourselves, the judge

cannot travel out of the sets of facts exhibited before him or before his predecessors. Accordingly each group

of circumstances which is adjudicated upon receives, to employ a Gallicism, a sort of consecration. It

acquires certain qualities which distinguish it from every other case genuine or hypothetical. But at Rome, as

I have attempted to explain, there was nothing resembling a Bench or Chamber of judges; and therefore no

combination of facts possessed any particular value more than another. When a difficulty came for opinion

before the jurisconsult, there was nothing to prevent a person endowed with a nice perception of analogy

from at once proceeding to adduce and consider an entire class of supposed questions with which a particular

feature connected it. Whatever were the practical advice given to the client, the responsum treasured up in the

notebooks of listening pupils would doubtless contemplate the circumstances as governed by a great

principle, or included in a sweeping rule. Nothing like this has ever been possible among ourselves, and it

should be acknowledged that in many criticisms passed on the English law the manner in which it has been

enunciated seems to have been lost sight of. The hesitation of our courts in declaring principles may be much

more reasonably attributed to the comparative scantiness of our precedents, voluminous as they appear to him

who is acquainted with no other system, than to the temper of our judges. It is true that in the wealth of legal

principle we are considerably poorer than several modern European nations. But they, it must be

remembered, took the Roman jurisprudence for the foundation of their civil institutions. They built the debris

of the Roman law into their walls; but in the materials and workmanship of the residue there is not much

which distinguishes it favourably from the structure erected by the English judicature.

The period of Roman freedom was the period during which the stamp of a distinctive character was

impressed on the Roman jurisprudence; and through all the earlier part of it, it was by the Responses of the

jurisconsults that the development of the law was mainly carried on. But as we approach the fall of the

republic there are signs that the Responses are assuming a form which must have been fatal to their farther

expansion. They are becoming systematised and reduced into compendia. Q. Mucius Scaevola, the Pontifex,

is said to have published a manual of the entire Civil Law, and there are traces in the writings of Cicero of

growing disrelish for the old methods, as compared with the more active instruments of legal innovation.

Other agencies had in fact by this time been brought to bear on the law. The Edict, or annual proclamation of

the Praetor, had risen into credit as the principal engine of law reform, and L. Cornelius Sylla, by causing to

be enacted the great group of statutes called the Leges Corneliae, had shown what rapid and speedy

improvements can be effected by direct legislation. The final blow to the Responses was dealt by Augustus,

who limited to a few leading jurisconsults the right of giving binding opinions on cases submitted to them, a

change which, though it brings us nearer the ideas of the modern world, must obviously have altered

fundamentally the characteristics of the legal profession and the nature of its influence on Roman law. At a

later period another school of jurisconsults arose, the great lights of jurisprudence for all time. But Ulpian and

Paulus, Gaius and Papinian, were not authors of Responses. Their works were regular treatises on particular

The Equity of the Romans and the Praetorian Edict by which it was worked into their system, will be

considered in the next chapter. Of the Statute Law it is only necessary to say that it was scanty during the

republic, but became very voluminous under the empire. In the youth and infancy of a nation it is a rare thing

for the legislature to be called into action for the general reform of private law. The cry of the people is not

for change in the laws, which are usually valued above their real worth, but solely for their pure, complete,

and easy administration; and recourse to the legislative body is generally directed to the removal of some

great abuse, or the decision of some incurable quarrel between classes 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 Corneliae; Julius Caesar contemplated vast additions to the Statute Law. Augustus caused to be

passed the allimportant group of Leges Juliae; and among later emperors the most active promulgators of

constitutions are princes who, like Constantine, have the concerns of the world to readjust. The true period of

Roman Statute Law does not begin till the establishment of the empire. The enactments of the emperors,

clothed at first in the pretence of popular sanction, but afterwards emanating undisguisedly from the imperial

prerogative, extend in increasing massiveness from the consolidation of Augustus's power to the publication

of the Code of Justinian. It will be seen that even in the reign of the second emperor a considerable

approximation is made to that condition of the law and that mode of administering it with which we are all

familiar. A statute law and a limited board of expositors have risen into being; a permanent court of appeal

and a collection of approved commentaries will very shortly be added; and thus we are brought close on the

The theory of a set of legal principles, entitled by their intrinsic superiority to supersede the older law, very

early obtained currency both in the Roman state and in England. Such a body of principles, existing in any

system, has in the foregoing chapters been denominated Equity, a term which, as will presently be seen, was

one (though only one) of the designations by which this agent of legal change was known to the Roman

jurisconsults. The jurisprudence of the Court of Chancery, which bears the name of Equity in England, could

only be adequately discussed in a separate treatise. It is extremely complex in its texture and derives its

materials from several heterogeneous sources. The early ecclesiastical chancellors contributed to it, from the

Canon Law, many of the principles which lie deepest in its structure. The Roman law, more fertile than the

Canon Law in rules applicable to secular disputes, was not seldom resorted to by a later generation of

Chancery judges, amid whose recorded dicta we often find entire texts from the Corpus Juris Civilis

imbedded, with their terms unaltered, though their origin is never acknowledged. Still more recently, and

particularly at the middle and during the latter half of the eighteenth century, the mixed systems of

jurisprudence and morals constructed by the publicists of the Low Countries appear to have been much

studied by English lawyers, and from the chancellorship of Lord Talbot to the commencement of Lord

Eldon's chancellorship these works had considerable effect on the rulings of the Court of Chancery. The

system, which obtained its ingredients from these various quarters, was greatly controlled in its growth by the

necessity imposed on it of conforming itself to the analogies of the common law, but it has always answered

the description of a body of comparatively novel legal principles claiming to override the older jurisprudence

The Equity of Rome was a much simpler structure, and its development from its first appearance can be much

more easily traced. Both its character and its history deserve attentive examination. It is the root of several

conceptions which have exercised profound influence on human thought, and through human thought have

The Romans described their legal system as consisting of two ingredients. "All nations," says the Institutional

Treatise published under the authority of the Emperor Justinian, "who are ruled by laws and customs, are

governed partly by their own particular laws, and partly by those laws which are common to all mankind. The

law which a people enacts is called the Civil Law of that people, but that which natural reason appoints for all

mankind is called the Law of Nations, because all nations use it." The part of the law "which natural reason

appoints for all mankind" was the element which the Edict of the Praetor 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 aequitas) 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

The most superficial student of Roman history must be struck by the extraordinary degree in which the

fortunes of the republic were affected by the presence of foreigners, under different names, on her soil. The

causes of this immigration are discernible enough at a later period, for we can readily understand why men of

all races should flock to the mistress of the world; but the same phenomenon of a large population of

foreigners and denizens meets us in the very earliest records of the Roman State. No doubt, the instability of

society in ancient Italy, composed as it was in great measure of robber tribes, gave men considerable

inducement to locate themselves in the territory of any community strong enough to protect itself and them

from external attack, even though protection should be purchased at the cost of heavy taxation, political

disfranchisement, and much social humiliation. It is probable, however, that this explanation is imperfect, and

that it could only be completed by taking into account those active commercial relations which, though they

are little reflected in the military traditions of the republic, Rome appears certainly to have had with Carthage

and with the interior of Italy in prehistoric times. Whatever were the circumstances to which it was

attributable, the foreign element in the commonwealth determined the whole course of its history, which, at

all its stages, is little more than a narrative of conflicts between a stubborn nationality and an alien

population. Nothing like this has been seen in modern times; on the one hand, because modern European

communities have seldom or never received any accession of foreign immigrants which was large enough to

make itself felt by the bulk of the native citizens, and on the other, because modern states, being held together

by allegiance to a king or political superior, absorb considerable bodies of immigrant settlers with a quickness

unknown to the ancient world, where the original citizens of a commonwealth always believed themselves to

be united by kinship in blood, and resented a claim to equality of privilege as a usurpation of their birthright.

In the early Roman republic the principle of the absolute exclusion of foreigners pervaded the Civil Law no

less than the Constitution. The alien or denizen could have no share in any institution supposed to be coeval

with the State. He could not have the benefit of Quiritarian law. He could not be a party to the nexum which

was at once the conveyance and the contract of the primitive Romans. He could not sue by the Sacramental

Action, a mode of litigation of which the origin mounts up to the very infancy of civilisation. Still, neither the

interest nor the security of Rome permitted him to be quite outlawed. All ancient communities ran the risk of

being overthrown by a very slight disturbance of equilibrium, and the mere instinct of selfpreservation

would force the Romans to devise some method of adjusting the rights and duties of foreigners, who might

otherwiseand this was a danger of real importance in the ancient world have decided their controversies

by armed strife. Moreover, at no period of Roman history was foreign trade entirely neglected. It was

therefore probably half as a measure of police and half in furtherance of commerce that jurisdiction was first

assumed in disputes to which the parties were either foreigners or a native and a foreigner. The assumption of

such a jurisdiction brought with it the immediate necessity of discovering some principles on which the

questions to be adjudicated upon could be settled, and the principles applied to this object by the Roman

lawyers were eminently characteristic of the time. They refused, as I have said before, to decide the new

Cases by pure Roman Civil Law. They refused, no doubt because it seemed to involve some kind of

degradation, to apply the law of the particular State from which the foreign litigant came. The expedient to

which they resorted was that of selecting the rules of law common to Rome and to the different Italian

communities in which the immigrants were born. In other words, they set themselves to form a system

answering to the primitive and literal meaning of Jus Gentium, that is, Law common to all Nations. Jus

Gentium was, in fact, the sum of the common ingredients in the customs of the old Italian tribes, for they

were all the nations whom the Romans had the means of observing, and who sent successive swarms of

immigrants to Roman soil. Whenever a particular usage was seen to be practised by a large number of

separate races in common it was set down as part of the Law common to all Nations, or Jus Gentium. Thus,

although the conveyance of property was certainly accompanied by very different forms in the different

commonwealths surrounding Rome, the actual transfer, tradition, or delivery of the article intended to be

conveyed was a part of the ceremonial in all of them. It was, for instance, a part, though a subordinate part, in

the Mancipation or conveyance peculiar to Rome. Tradition, therefore, being in all probability the only

common ingredient in the modes of conveyance which the jurisconsults had the means of observing, was set

down as an institution Juris Gentium, or rule of the Law common to all Nations. A vast number of other

observances were scrutinised with the same result. Some common characteristic was discovered in all of

them, which had a common object, and this characteristic was classed in the Jus Gentium. The Jus Gentium

was accordingly a collection of rules and principles, determined by observation to be common to the

The circumstances of the origin of the Jus Gentium are probably a sufficient safeguard against the mistake of

supposing that the Roman lawyers had any special respect for it. It was the fruit in part of their disdain for all

foreign law, and in part of their disinclination to give the foreigner the advantage of their own indigenous Jus

Civile. It is true that we, at the present day, should probably take a very different view of the Jus Gentium, if

we were performing the operation which was effected by the Roman jurisconsults. We should attach some

vague superiority or precedence to the element which we had thus discerned underlying and pervading so

great a variety of usage. We should have a sort of respect for rules and principles so universal. Perhaps we

should speak of the common ingredient as being of the essence of the transaction into which it entered, and

should stigmatise the remaining apparatus of ceremony, which varied in different communities, as

adventitious and accidental. Or it may be, we should infer that the races which we were comparing had once

obeyed a great system of common institutions of which the Jus Gentium was the reproduction, and that the

complicated usages of separate commonwealths were only corruptions and depravations of the simpler

ordinances which had once regulated their primitive state. But the results to which modern ideas conduct the

observer are, as nearly as possible, the reverse of those which were instinctively brought home to the

primitive Roman. What we respect or admire, he disliked or regarded with jealous dread. The parts of

jurisprudence which he looked upon with affection were exactly those which a modern theorist leaves out of

consideration as accidental and transitory. The solemn gestures of the mancipation; the nicely adjusted

questions and answers of the verbal contract; the endless formalities of pleading and procedure. The Jus

Gentium was merely a system forced on his attention by a political necessity. He loved it as little as he loved

the foreigners from whose institutions it was derived and for whose benefit it was intended. A complete

revolution in his ideas was required before it could challenge his respect, but so complete was it when it did

occur, that the true reason why our modern estimate of the Jus Gentium differs from that which has just been

described, is that both modern jurisprudence and modern philosophy have inherited the matured views of the

later jurisconsults on this subject. There did come a time, when from an ignoble appendage of the Jus Civile,

the Jus Gentium came to be considered a great though as yet imperfectly developed model to which all law

ought as far as possible to conform. This crisis arrived when the Greek theory of a Law of Nature was applied

The Jus Naturale, or Law of Nature, is simply the Jus Gentium or Law of Nations seen in the light of a

peculiar theory. An unfortunate attempt to discriminate them was made by the jurisconsult Ulpian, with the

propensity to distinguish characteristic of a lawyer, but the language of Gaius, a much higher authority, and

the passage quoted before from the Institutes leave no room for doubt, that the expressions were practically

convertible. The difference between them was entirely historical, and no distinction in essence could ever be

established between them. It is almost unnecessary to add that the confusion between Jus Gentium, or Law

common to all Nations, and international law is entirely modern. The classical expression for international

law is Jus Feciale or the law of negotiation and diplomacy. It is, however, unquestionable that indistinct

impressions as to the meaning of Jus Gentium had considerable share in producing the modern theory that the

It becomes necessary to investigate the Greek conceptions of nature and her law. The word *@@@@, which

was rendered in the Latin natura and our nature, denoted beyond all doubt originally the material universe,

but it was the material universe contemplated under an aspect which such is our intellectual distance from

those times it is not very easy to delineate in modern language. Nature signified the physical world

regarded as the result of some primordial element or law. The oldest Greek philosophers had been

accustomed to explain the fabric of creation as the manifestation of some single principle which they

variously asserted to be movement, force, fire, moisture, or generation. In its simplest and most ancient sense,

Nature is precisely the physical universe looked upon in this way as the manifestation of a principle.

Afterwards, the later Greek sects, returning to a path from which the greatest intellects of Greece had

meanwhile strayed, added the moral to the physical world in the conception of Nature. They extended the

term till it embraced not merely the visible creation, but the thoughts, observances, and aspirations of

mankind. Still, as before, it was not solely the moral phenomena of human society which they understood by

Nature, but these phenomena considered as resolvable into some general and simple laws.

Now, just as the oldest Greek theorists supposed that the sports of chance had changed the material universe

from its simple primitive form into its present heterogeneous condition, so their intellectual descendants

imagined that but for untoward accident the human race would have conformed itself to simpler rules of

conduct and a less tempestuous life. To live according to nature came to be considered as the end for which

man was created, and which the best men were bound to compass. To live according to nature was to rise

above the disorderly habits and gross indulgences of the vulgar to higher laws of action which nothing but

selfdenial and selfcommand would enable the aspirant to observe. It is notorious that this proposition

live according to nature was the sum of the tenets of the famous Stoic philosophy. Now on the subjugation

of Greece that philosophy made instantaneous progress in Roman society. It possessed natural fascinations

for the powerful class who, in theory at least, adhered to the simple habits of the ancient Italian race, and

disdained to surrender themselves to the innovations of foreign fashions. Such persons began immediately to

affect the Stoic precepts of life according to nature an affectation all the more grateful, and, I may add, all

the more noble, from its contrast with the unbounded profligacy which was being diffused through the

imperial city by the pillage of the world and by the example of its most luxurious races. In the front of the

disciples of the new Greek school, we might be sure, even if we did not know it historically, that the Roman

lawyers figured. We have abundant proof that, there being substantially but two professions in the Roman

republic, the military men were generally identified with the party of movement, but the lawyers were

The alliance of the lawyers with the Stoic philosophers lasted through many centuries. Some of the earliest

names in the series of renowned jurisconsults are associated with Stoicism, and ultimately we have the golden

age of Roman jurisprudence fixed by general consent at the era of the Antonine Caesars, the most famous

disciples to whom that philosophy has given a rule of life. The long diffusion of these doctrines among the

members of a particular profession was sure to affect the art which they practised and influenced. Several

positions which we find in the remains of the Roman jurisconsults are scarcely intelligible, unless we use the

Stoic tenets as our key; but at the same time it is a serious, though a very common, error to measure the

influence of Stoicism on Roman law by counting up the number of legal rules which can be confidently

affiliated on Stoical dogmas. It has often been observed that the strength of Stoicism resided not in its canons

of conduct, which were often repulsive or ridiculous, but in the great though vague principle which it

inculcated of resistance to passion. Just in the same way the influence on jurisprudence of the Greek theories,

which had their most distinct expression in Stoicism, consisted not in the number of specific positions which

they contributed to Roman law, but in the single fundamental assumption which they lent to it. After nature

had become a household word in the mouths of the Romans, the belief gradually prevailed among the Roman

lawyers that the old Jus Gentium was in fact the lost code of Nature, and that the Praetor in framing an

Edictal jurisprudence on the principles of the Jus Gentium was gradually restoring a type from which law had

only departed to deteriorate. The inference from this belief was immediate, that it was the Praetor's duty to

supersede the Civil Law as much as possible by the Edict, to revive as far as might be the institutions by

which Nature had governed man in the primitive state. Of course, there were many impediments to the

amelioration of law by this agency. There may have been prejudices to overcome even in the legal profession

itself, and Roman habits were far too tenacious to give way at once to mere philosophical theory. The indirect

methods by which the Edict combated certain technical anomalies, show the caution which its authors were

compelled to observe, and down to the very days of Justinian there was some part of the old law which had

obstinately resisted its influence. But, on the whole, the progress of the Romans in legal improvement was

astonishingly rapid as soon as stimulus was applied to it by the theory of Natural Law. The ideas of

simplification and generalisation had always been associated with the conception of Nature; simplicity,

symmetry, and intelligibility came therefore to be regarded as the characteristics of a good legal system, and

the taste for involved language, multiplied ceremonials, and useless difficulties disappeared altogether. The

strong will, and unusual opportunities of Justinian were needed to bring the Roman law to its existing shape,

but the 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 AEquitas, or Equity in its original sense; and here we seem to come to the first

appearance in jurisprudence of this famous term, Equity In examining an expression which has so remote an

origin and so long a history as this, it is always safest to penetrate, if possible, to the simple metaphor or

figure which at first shadowed forth the conception. It has generally been supposed that AEquitas is the

equivalent of the Greek @@@@@@, i.e. the principle of equal or proportionate distribution. The equal

division of numbers or physical magnitudes is doubtless closely entwined with our perceptions of justice;

there are few associations which keep their ground in the mind so stubbornly or are dismissed from it with

such difficulty by the deepest thinkers. Yet in tracing the history of this association, it certainly does not seem

to have suggested itself to very early thought, but is rather the offspring of a comparatively late philosophy It

is remarkable too that the "equality" of laws on which the Greek democracies prided themselves that

equality which, in the beautiful drinking song of Callistratus, Harmodius and Aristogiton are said to have

given to Athenshad 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 "aequus" carries

with it more distinctly than the Greek "@@@@" the sense of levelling. Now its levelling tendency was

exactly the characteristic of the Jus Gentium, which would be most striking to a primitive Roman. The pure

Quiritarian law recognised a multitude of arbitrary distinctions between classes of men and kinds of property;

the Jus Gentium, generalised from a comparison of various customs, neglected the Quiritarian divisions. The

old Roman law established, for example, a fundamental difference between "Agnatic" and "Cognatic"

relationship, that is, between the Family considered as based upon common subjection to patriarchal authority

and the Family considered (in conformity with modern ideas) as united through the mere fact of a common

descent. This distinction disappears in the "law common to all nations," as also does the difference between

the archaic forms of property, Things "Mancipi" and Things "nec Mancipi." The neglect of demarcations and

boundaries seems to me, therefore, the feature of the Jus Gentium which was depicted in AEquitas. I imagine

that the word was at first a mere description of that constant levelling or removal of irregularities which went

on wherever the praetorian system was applied to the cases of foreign litigants. Probably no colour of ethical

meaning belonged at first to the expression; nor is there any reason to believe that the process which it

On the other hand, the feature of the Jus Gentium which was presented to the apprehension of a Roman by

the word Equity, was exactly the first and most vividly realised characteristic of the hypothetical state of

nature. Nature implied symmetrical order, first in the physical world, and next in the moral, and the earliest

notion of order doubtless involved straight lines, even surfaces, and measured distances. The same sort of

picture or figure would be unconsciously before the mind's eye, whether it strove to form the outlines of the

supposed natural state, or whether it took in at a glance the actual administration of the "law common to all

nations"; and all we know of primitive thought would lead us to conclude that this ideal similarity would do

much to encourage the belief in an identity of the two conceptions. But then, while the Jus Gentium had little

or no antecedent credit at Rome, the theory of a Law of Nature came in surrounded with all the prestige of

philosophical authority, and invested with the charms of association with an elder and more blissful condition

of the race. It is easy to understand how the difference in the point of view would affect the dignity of the

term which at once described the operation of the old principles and the results of the new theory. Even to

modern ears it is not at all the same thing to describe a process as one of "levelling" and to call it the

"correction of anomalies," though the metaphor is precisely the same. Nor do I doubt that, when once

AEquitas was understood to convey an allusion to the Greek theory, associations which grew out of the

Greek notion of @@@@@@ began to cluster round it. The language of Cicero renders it more than likely

that this was so, and it was the first stage of a transmutation of the conception of Equity, which almost every

ethical system which has appeared since those days has more or less helped to carry on.

Something must be said of the formal instrumentality by which the principles and distinctions associated, first

with the Law common to all Nations, and afterwards with the Law of Nature, were gradually incorporated

with the Roman law. At the crisis of primitive Roman history which is marked by the expulsion of the

Tarquins, a change occurred which has its parallel in the early annals of many ancient states, but which had

little in common with those passages of political affairs which we now term revolutions. It may best be

described by saying that the monarchy was put into commission. The powers heretofore accumulated in the

hands of a single person were parcelled out among a number of elective functionaries, the very name of the

kingly office being retained and imposed on a personage known subsequently as the Rex Sacrorum or Rex

Sacrificulus. As part of the change, the settled duties of the Supreme judicial office devolved on the Praetor,

at the time the first functionary in the commonwealth, and together with these duties was transferred the

undefined supremacy over law and legislation which always attached to ancient sovereigns and which is not

obscurely related to the patriarchal and heroic authority they had once enjoyed. The circumstances of Rome

gave great importance to the more indefinite portion of the functions thus transferred, as with the

establishment of the republic began that series of recurrent trials which overtook the state, in the difficulty of

dealing with a multitude of persons who, not coming within the technical description of indigenous Romans,

were nevertheless permanently located within Roman jurisdiction. Controversies between such persons, or

between such persons and nativeborn citizens, would have remained without the pale of the remedies

provided by Roman law, if the Praetor 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 Praetor, known subsequently as the Praetor Peregrinus, who

gave them his undivided attention. Meantime, one precaution of the Roman people against the revival of

oppression, had consisted in obliging every magistrate whose duties had any tendency to expand their sphere,

to publish, on commencing his year of office, an Edict or proclamation, in which he declared the manner in

which he intended to administer his department. The Praetor fell under the rule with other magistrates; but as

it was necessarily impossible to construct each year a separate system of principles, he seems to have

regularly republished his predecessor's Edict with such additions and changes as the exigency of the moment

or his own views of the law compelled him to introduce. The Praetor's proclamation, thus lengthened by a

new portion every year, obtained the name of the Edictum Perpetuum, that is, the continuous or unbroken

edict. The immense length to which it extended, together perhaps with some distaste for its necessarily

disorderly texture, caused the practice of increasing it to be stopped in the year of Salvius Julianus, who

occupied the magistracy in the reign of the Emperor Hadrian. The edict of that Praetor 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 Praetor were restrained? How was

authority so little definite reconciled with a settled condition of society and of law? The answer can only be

supplied by careful observation of the conditions under which our own English law is administered. The

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

were jurisconsults, and it is probable that every Roman lawyer waited impatiently for the time when he

should fill or control the great judicial magistracy. In the interval, his tastes, feelings, prejudices, and degree

of enlightenment were inevitably those of his own order, and the qualifications which he ultimately brought

to office were those which he had acquired in the practice and study of his profession. An English Chancellor

goes through precisely the same training, and carries to the woolsack the same qualifications. It is certain

when he assumes office that he will have, to some extent, modified the law before he leaves it; but until he

has quitted his seat, and the series of his decisions in the Law Reports has been completed, we cannot

discover how far he has elucidated or added to the principles which his predecessors bequeathed to him. The

influence of the Praetor on Roman jurisprudence differed only in respect of the period at which its amount

was ascertained. As was before stated, he was in office but for a year, and his decisions rendered during his

year, though of course irreversible as regarded the litigants, were of no ulterior value. The most natural

moment for declaring the changes he proposed to effect occurred therefore at his entrance on the praetorship,

and hence, when commencing his duties, he did openly and avowedly that which in the end his English

representative does insensibly and sometimes unconsciously. The checks on this apparent liberty are

precisely those imposed on an English judge. Theoretically there seems to be hardly any limit to the powers

of either of them, but practically the Roman Praetor, no less than the English Chancellor, was kept within the

narrowest bounds by the prepossessions imbibed from early training and by the strong restraints of

professional opinion, restraints of which the stringency can only be appreciated by those who have personally

experienced them. It may be added that the lines within which movement is permitted, and beyond which

there is to be no travelling, were chalked with as much distinctness in the one case as in the other. In England

the judge follows the analogies of reported decisions on insulated groups of facts. At Rome, as the

intervention of the Praetor was at first dictated by simple concern for the safety of the state, it is likely that in

the earliest times it was proportioned to the difficulty which it attempted to get rid of. Afterwards, when the

taste for principle had been diffused by the Responses, he no doubt used the Edict as the means of giving a

wider application to those fundamental principles, which he and the other practising jurisconsults, his

contemporaries, believed themselves to have detected underlying the law. Latterly he acted wholly under the

influence of Greek philosophical theories, which at once tempted him to advance and confined him to a

The nature of the measures attributed to Salvius Julianus has been much disputed. Whatever they were, their

effects on the Edict are sufficiently plain. It ceased to be extended by annual additions, and henceforward the

equity jurisprudence of Rome was developed by the labours of a succession of great jurisconsults who fill

with their writings the interval between the reign of Hadrian and the reign of Alexander Severus. A fragment

of the wonderful system which they built up survives in the Pandects of Justinian, and supplies evidence that

their works took the form of treatises on all parts of Roman Law, but chiefly that of commentaries on the

Edict. Indeed, whatever be the immediate subject of a jurisconsult of this epoch, he may always be called an

expositor of Equity. The principles of the Edict had, before the epoch of its cessation, made their way into

every part of Roman jurisprudence. The Equity of Rome, it should be understood, even when most distinct

from the Civil Law, was always administered by the same tribunals. The Praetor was the chief equity judge as

well as the great common law magistrate, and as soon as the Edict had evolved an equitable rule the Praetor's

court began to apply it in place of or by the side of the old rule of the Civil Law, which was thus directly or

indirectly repealed without any express enactment of the legislature. The result, of course, fell considerably

short of a complete fusion of law and equity, which was not carried out till the reforms of Justinian. The

technical severance of the two elements of jurisprudence entailed some confusion and some inconvenience,

and there were certain of the stubborner doctrines of the Civil Law with which neither the authors nor the

expositors of the Edict had ventured to interfere. But at the same time there was no comer of the field of

jurisprudence which was not more or less swept over by the influence of Equity. It supplied the jurist with all

his materials for generalisation, with all his methods of interpretation, with his elucidations of first principles,

and with that great mass of limiting rules which are rarely interfered with by the legislator, but which

The period of jurists ends with Alexander Severus. From Hadrian to that emperor the improvement of law

was carried on, as it is at the present moment in most continental countries, partly by approved commentaries

and partly by direct legislation. But in the reign of Alexander Severus the power of growth in Roman Equity

seems to be exhausted, and the succession of jurisconsults comes to a close. The remaining history of the

Roman law is the history of the imperial constitutions, and, at the last, of attempts to codify what had now

become the unwieldy body of Roman jurisprudence. We have the latest and most celebrated experiment of

It would be wearisome to enter on a detailed comparison or contrast of English and Roman Equity but it may

be worth while to mention two features which they have in common. The first may be stated as follows. Each

of them tended, and all such systems tend, to exactly the same state in which the old common law was when

Equity first interfered with it. A time always comes at which the moral principles originally adopted have

been carried out to all their legitimate consequences, and then the system founded on them becomes as rigid,

as unexpansive, and as liable to fall behind moral progress as the sternest code of rules avowedly legal. Such

an epoch was reached at Rome in the reign of Alexander Severus; after which, though the whole Roman

world was undergoing a moral revolution, the Equity of Rome ceased to expand. The same point of legal

history was attained in England under the chancellorship of Lord Eldon, the first of our equity judges who,

instead of enlarging the jurisprudence of his court by indirect legislation, devoted himself through life to

explaining and harmonising it. If the philosophy of legal history were better understood in England, Lord

Eldon's services would be less exaggerated on the one hand and better appreciated on the other than they

appear to be among contemporary lawyers. Other misapprehensions too, which bear some practical fruit,

would perhaps be avoided. It is easily seen by English lawyers that English Equity is a system founded on

moral rules; but it is forgotten that these rules are the morality of past centuries not of the presentthat

they have received nearly as much application as they are capable of, and that though of course they do not

differ largely from the ethical creed of our own day, they are not necessarily on a level with it. The imperfect

theories of the subject which are commonly adopted have generated errors of opposite sorts. Many writers of

treatises on Equity, struck with the completeness of the system in its present state, commit themselves

expressly or implicitly to the paradoxical assertion that the founders of the chancery jurisprudence

contemplated its present fixity of form when they were settling its first bases. Others, again, complain and

this is a grievance frequently observed upon in forensic arguments that the moral rules enforced by the

Court of Chancery fall short of the ethical standard of the present day. They would have each Lord

Chancellor perform precisely the same office for the jurisprudence which he finds ready to his hand, which

was performed for the old common law by the fathers of English equity. But this is to invert the order of the

agencies by which the improvement of the law is carried on. Equity has its place and its time; but I have

pointed out that another instrumentality is ready to succeed it when its energies are spent.

Another remarkable characteristic of both English and Roman Equity is the falsehood of the assumptions

upon which the claim of the equitable to superiority over the legal rule is originally defended. Nothing is

more distasteful to men, either as individuals or as masses, than the admission of their moral progress as a

substantive reality. This unwillingness shows itself, as regards individuals, in the exaggerated respect which

is ordinarily paid to the doubtful virtue of consistency. The movement of the collective opinion of a whole

society is too palpable to be ignored, and is generally too visible for the better to be decried; but there is the

greatest disinclination to accept it as a primary phenomenon, and it is commonly explained as the recovery of

a lost perfection the gradual return to a state from which the race has lapsed. This tendency to look

backward instead of forward for the goal of moral progress produced anciently, as we have seen, on Roman

jurisprudence effects the most serious and permanent. The Roman jurisconsults, in order to account for the

improvement of their jurisprudence by the Praetor, borrowed from Greece the doctrine of a Natural state of

man a Natural society anterior to the organisation of commonwealths governed by positive laws. In

England, on the other hand, a range of ideas especially congenial to Englishmen of that day, explained the

claim of Equity to override the common law by supposing a general right to superintend the administration of

justice which was assumed to be vested in the king as a natural result of his paternal authority. The same view

appears in a different and a quainter form in the old doctrine that Equity flowed from the king's conscience

the improvement which had in fact taken place in the moral standard of the community being thus referred

to an inherent elevation in the moral sense of the sovereign. The growth of the English constitution rendered

such a theory unpalatable after a time; but, as the jurisdiction of the Chancery was then firmly established, it

was not worth while to devise any formal substitute for it. The theories found in modern manuals of Equity

are very various, but all are alike in their untenability. Most of them are modifications of the Roman doctrine

of a natural law, which is indeed adopted in tenour by those writers who begin a discussion of the jurisdiction

of the Court of Chancery by laying down a distinction between natural justice and civil.

It will be inferred from what has been said that the theory which transformed the Roman jurisprudence had

no claim to philosophical precision. It involved, in fact, one of those "mixed modes of thought" which are

now acknowledged to have characterised all but the highest minds during the infancy of speculation, and

which are far from undiscoverable even in the mental efforts of our own day. The Law of Nature confused

the Past and the Present. Logically, it implied a state of Nature which had once been regulated by natural law;

yet the jurisconsults do not speak clearly or confidently of the existence of such a state, which indeed is little

noticed by the ancients except where it finds a poetical expression in the fancy of a golden age. Natural law,

for all practical purposes, was something belonging to the present, something entwined with existing

institutions, something which could be distinguished from them by a competent observer. The test which

separated the ordinances of Nature from the gross ingredients with which they were mingled was a sense of

simplicity and harmony; yet it was not on account of their simplicity and harmony that these finer elements

were primarily respected, but on the score of their descent from the aboriginal reign of Nature. This confusion

has not been successfully explained away by the modern disciples of the jurisconsults, and in truth modern

speculations on the Law of Nature betray much more indistinctness of perception and are vitiated by much

more hopeless ambiguity of language than the Roman lawyers can be justly charged with. There are some

writers on the subject who attempt to evade the fundamental difficulty by contending that the code of Nature

exists in the future and is the goal to which all civil laws are moving, but this is to reverse the assumptions on

which the old theory rested, or rather perhaps to mix together two inconsistent theories. The tendency to look

not to the past but to the future for types of perfection was brought into the world by Christianity. Ancient

literature gives few or no hints of a belief that the progress of society is necessarily from worse to better.

But the importance of this theory to mankind has been very much greater than its philosophical deficiencies

would lead us to expect. Indeed, it is not easy to say what turn the history of thought, and therefore, of the

human race, would have taken, if the belief in a law natural had not become universal in the ancient world.

There are two special dangers to which law and society which is held together by law, appear to be liable in

their infancy. One of them is that law may be too rapidly developed. This occurred with the codes of the more

progressive Greek communities, which disembarrassed themselves with astonishing facility from cumbrous

forms of procedure and needless terms of art, and soon ceased to attach any superstitious value to rigid rules

and prescriptions. It was not for the ultimate advantage of mankind that they did so, though the immediate

benefit conferred on their citizens may have been considerable. One of the rarest qualities of national

character is the capacity for applying and working out the law, as such, at the cost of constant miscarriages of

abstract justice, without at the same time losing the hope or the wish that law may be conformed to a higher

ideal. The Greek intellect, with all its nobility and elasticity, was quite unable to confine itself within the

strait waistcoat of a legal formula; and, if we may judge them by the popular courts of Athens of whose

working we possess accurate knowledge, the Greek tribunals exhibited the strongest tendency to confound

law and fact. The remains of the Orators and the forensic commonplaces preserved by Aristotle in his

Treatise on Rhetoric, show that questions of pure law were constantly argued on every consideration which

could possibly influence the mind of the judges. No durable system of jurisprudence could be produced in

this way. A community which never hesitated to relax rules of written law whenever they stood in the way of

an ideally perfect decision on the facts of particular cases, would only; if it bequeathed any body of judicial

principles to posterity bequeath one consisting of the ideas of right and wrong which happened to be

prevalent at the time. Such a jurisprudence would contain no framework to which the more advanced

conceptions of subsequent ages could be fitted. It would amount at best to a philosophy marked with the

Few national societies have had their jurisprudence menaced by this peculiar danger of precocious maturity

and untimely disintegration. It is certainly doubtful whether the Romans were ever seriously threatened by it,

but at any rate they had adequate protection in their theory of Natural Law. For the Natural Law of the

jurisconsults was distinctly conceived by them as a system which ought gradually to absorb civil laws,

without superseding them so long as they remained unrepealed. There was no such impression of its sanctity

abroad, that an appeal to it would be likely to overpower the mind of a judge who was charged with the

superintendence of a particular litigation. The value and serviceableness of the conception arose from its

keeping before the mental vision a type of perfect law, and from its inspiring the hope of an indefinite

approximation to it, at the same time that it never tempted the practitioner or the citizen to deny the obligation

of existing laws which had not yet been adjusted to the theory. It is important too to observe that this model

system, unlike many of those which have mocked men's hopes in later days, was not entirely the product of

imagination. It was never thought of as founded on quite untested principles. The notion was that it underlay

existing law and must be looked for through it. Its functions were in short remedial, not revolutionary or

anarchical. And this, unfortunately, is the exact point at which the modern view of a Law of Nature has often

The other liability to which the infancy of society is exposed has prevented or arrested the progress of far the

greater part of mankind. The rigidity of primitive law, arising chiefly from its early association and

identification with religion, has chained down the mass of the human race to those views of life and conduct

which they entertained at the time when their usages were first consolidated into a systematic form. There

were one or two races exempted by a marvellous fate from this calamity, and grafts from these stocks have

fertilised a few modern societies, but it is still true that, over the larger part of the world, the perfection of law

has always been considered as consisting in adherence to the ground plan supposed to have been marked out

by the original legislator. If intellect has in such cases been exercised on jurisprudence, it has uniformly

prided itself on the subtle perversity of the conclusions it could build on ancient texts, without discoverable

departure from their literal tenour. I know no reason why the law of the Romans should be superior to the

laws of the Hindoos, unless the theory of Natural Law had given it a type of excellence different from the

usual one. In this one exceptional instance, simplicity and symmetry were kept before the eyes of a society

whose influence on mankind was destined to be prodigious from other causes, as the characteristics of an

ideal and absolutely perfect law. It is impossible to overrate the importance to a nation or profession of

having a distinct object to aim at in the pursuit of improvement. The secret of Bentham's immense influence

in England during the past thirty years is his success in placing such an object before the country. He gave us

a clear rule of reform. English lawyers of the last century were probably too acute to be blinded by the

paradoxical commonplace that English law was the perfection of human reason, but they acted as if they

believed it for want of any other principle to proceed upon. Bentham made the good of the community take

precedence of every other object, and thus gave escape to a current which had long been trying to find its way

It is not an altogether fanciful comparison if we call the assumptions we have been describing the ancient

counterpart of Benthamism. The Roman theory guided men's efforts in the same direction as the theory put

into shape by the Englishman; its practical results were not widely different from those which would have

been attained by a sect of lawreformers who maintained a steady pursuit of the general good of the

community. It would be a mistake, however, to suppose it a conscious anticipation of Bentham's principles.

The happiness of mankind is, no doubt, sometimes assigned, both in the popular and in the legal literature of

the Romans, as the proper object of remedial legislation, but it is very remarkable how few and faint are the

testimonies to this principle compared with the tributes which are constantly offered to the overshadowing

claims of the Law of Nature. It was not to anything resembling philanthropy, but to their sense of simplicity

and harmony of what they significantly termed "elegance" that the Roman jurisconsults freely

surrendered themselves. The coincidence of their labours with those which a more precise philosophy would

Turning to the modern history of the law of nature, we find it easier to convince ourselves of the vastness of

its influence than to pronounce confidently whether that influence has been exerted for good or for evil. The

doctrines and institutions which may be attributed to it are the material of some of the most violent

controversies debated in our time, as will be seen when it is stated that the theory of Natural Law is the

source of almost all the special ideas as to law, politics, and society which France during the last hundred

years has been the instrument of diffusing over the western world. The part played by jurists in French

history, and the sphere of jural conceptions in French thought, have always been remarkably large. It was not

indeed in France, but in Italy, that the juridical science of modern Europe took its rise, but of the schools

founded by emissaries of the Italian universities in all parts of the continent, and attempted (though vainly) to

be set up in our island, that established in France produced the greatest effect on the fortunes of the country.

The lawyers of France immediately formed a strict alliance with the kings of the house of Capet, and it was as

much through their assertions of royal prerogative, and through their interpretations of the rules of feudal

succession, as by the power of the sword, that the French monarchy at last grew together out of the

agglomeration of provinces and dependencies. The enormous advantage which their understanding with the

lawyers conferred on the French kings in the prosecution of their struggle with the great feudatories, the

aristocracy, and the church, can only be appreciated if we take into account the ideas which prevailed in

Europe far down into the middle ages. There was, in the first place, a great enthusiasm for generalisation and

a curious admiration for all general propositions, and consequently, in the field of law, an involuntary

reverence for every general formula which seemed to embrace and sum up a number of the insulated rules

which were practised as usages in various localities. Such general formulas it was, of course, not difficult for

practitioners familiar with the Corpus Juris or the Glosses to supply in almost any quantity. There was,

however, another cause which added yet more considerably to the lawyers' power. At the period of which we

are speaking, there was universal vagueness of ideas as to the degree and nature of the authority residing in

written texts of law For the most part, the peremptory preface, Ita scriptum est, seems to have been sufficient

to silence all objections. Where a mind of our own day would jealously scrutinise the formula which had been

quoted, would inquire its source, and would (if necessary) deny that the body of law to which it belonged had

any authority to supersede local customs, the elder jurist w ould not probably have ventured to do more than

question the applicability of the rule, or at best cite some counter proposition from the Pandects or the Canon

Law. It is extremely necessary to bear in mind the uncertainty of men's notions on this most important side of

juridical controversies, not only because it helps to explain the weight which the lawyers threw into the

monarchical scale, but on account of the light which it sheds on several curious historical problems. The

motives of the author of the Forged Decretals and his extraordinary success are rendered more intelligible by

it. And, to take a phenomenon of smaller interest, it assists us, though only partially to understand the

plagiarisms of Bracton. That an English writer of the time of Henry III should have been able to put off on his

countrymen as a compendium of pure English law a treatise of which the entire form and a third of the

contents were directly borrowed from the Corpus Juris, and that he should have ventured on this experiment

in a country where the systematic study of the Roman law was formally proscribed, will always be among the

most hopeless enigmas in the history of jurisprudence; but still it is something to lessen our surprise when we

comprehend the state of opinion at the period as to the obligatory force of written texts, apart from all

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 ValoisAngouleme to the throne, the situation

of the French jurists was peculiar and continued to be so down to the outbreak of the revolution. On the one

hand, they formed the best instructed and nearly the most powerful class in the nation. They had made good

their footing as a privileged order by the side of the feudal aristocracy, and they had assured their influence

by an organisation which distributed their profession over France in great chartered corporations possessing

large defined powers and still larger indefinite claims. In all the qualities of the advocate, the judge, and the

legislator, they far excelled their compeers throughout Europe. Their juridical tact, their ease of expression,

their fine sense of analogy and harmony, and (if they may be judged by the highest names among them) their

passionate devotion to their conceptions of justice, were as remarkable as the singular variety of talent which

they included, a variety covering the whole ground between the opposite poles of Cujas and Montesquieu, of

D'Aguesseau and Dumoulin. But, on the other hand, the system of laws which they had to administer stood in

striking contrast with the habits of mind which they had cultivated. The France which had been in great part

constituted by their efforts was smitten with the curse of an anomalous and dissonant jurisprudence beyond

every other country in Europe. One great division ran through the country and separated it into Pays du Droit

Ecrit and Pays du Droit Coutumier; the first acknowledging the written Roman law as the basis of their

jurisprudence, the last admitting it only so far as it supplied general forms of expression, and courses of

juridical reasoning which were reconcileable with the local usages. The sections thus formed were again

variously subdivided. In the Pays du Droit Coutumier province differed from province, county from county,

municipality from municipality, in the nature of its customs. In the Pays du Droit Ecrit the stratum of feudal

rules which overlay the Roman law was of the most miscellaneous composition. No such confusion as this

ever existed in England. In Germany it did exist, but was too much in harmony with the deep political and

religious divisions of the country to be lamented or even felt. It was the special peculiarity of France that an

extraordinary diversity of laws continued without sensible alteration while the central authority of the

monarchy was constantly strengthening itself, while rapid approaches were being made to complete

administrative unity, and while a fervid national spirit had been developed among the people. The contrast

was one which fructified in many serious results, and among them we must rank the effect which it produced

on the minds of the French lawyer. Their speculative opinions and their intellectual bias were in the strongest

opposition to their interests and professional habits. With the keenest sense and the fullest recognition of

those perfections of jurisprudence which consist in simplicity and uniformity, they believed, or seemed to

believe, that the vices which actually infested French law were ineradicable: and in practice they often

resisted the reformation of abuses with an obstinacy which was not shown by many among their less

enlightened countrymen. But there was a way to reconcile these contradictions. They became passionate

enthusiasts for Natural Law. The Law of Nature overleapt all provincial and municipal boundaries; it

disregarded all distinctions between noble and burgess, between burgess and peasant; it gave the most exalted

place to lucidity, simplicity and system; but it committed its devotees to no specific improvement, and did not

directly threaten any venerable or lucrative technicality. Natural law may be said to have become the

common law of France, or, at all events, the admission of its dignity and claims was the one tenet which all

French practitioners alike subscribed to. The language of the praerevolutionary jurists in its eulogy is

singularly unqualified, and it is remarkable that the writers on the Customs, who often made it their duty to

speak disparagingly of the pure Roman law, speak even more fervidly of Nature and her rules than the

civilians who professed an exclusive respect for the Digest and the Code. Dumoulin, the highest of all

authorities on old French Customary Law, has some extravagant passages on the Law of Nature; and his

panegyrics have a peculiar rhetorical turn which indicated a considerable departure from the caution of the

Roman jurisconsults. The hypothesis of a Natural Law had become not so much a theory guiding practice as

an article of speculative faith, and accordingly we shall find that, in the transformation which it more recently

underwent, its weakest parts rose to the level of its strongest in the esteem of its supporters.

The eighteenth century was half over when the most critical period in the history of Natural Law was

reached. Had the discussion of the theory and of its consequences continued to be exclusively the

employment of the legal profession, there would possibly have been an abatement of the respect which it

commanded; for by this time the Esprit des Lois had appeared. Bearing in some exaggerations the marks of

the excessive violence with which its author's mind had recoiled from assumptions usually suffered to pass

without scrutiny, vet 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

counterhypothesis which it seemed destined to destroy passed suddenly from the forum to the street, and

became the keynote 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 fellowmen, for which

much will always have to be forgiven him. We have never seen in our own generation indeed the world

has not seen more than once or twice in all the course of history a literature which has exercised such

prodigious influence over the minds of men, over every cast and shade of intellect, as that which emanated

from Rousseau between 1749 and 1762. It was the first attempt to reerect the edifice of human belief after

the purely iconoclastic efforts commenced by Bayle, and in part by our own Locke, and consummated by

Voltaire; and besides the superiority which every constructive effort will always enjoy over one that is merely

destructive, it possessed the immense advantage of appearing amid an all but universal scepticism as to the

soundness of all foregone knowledge in matters speculative. Now, in all the speculations of Rousseau, the

central figure, whether arrayed in an English dress as the signatory of a social compact, or simply stripped

naked of all historical qualities, is uniformly Man, in a supposed state of nature. Every law or institution

which would misbeseem this imaginary being under these ideal circumstances is to be condemned as having

lapsed from an original perfection; every transformation of society which would give it a closer resemblance

to the world over which the creature of Nature reigned, is admirable and worthy to be effected at any

apparent cost. The theory is still that of the Roman lawyers, for in the phantasmagoria with which the Natural

Condition is peopled, every feature and characteristic eludes the mind except the simplicity and harmony

which possessed such charms for the jurisconsult; but the theory is, as it were, turned upside down. It is not

the Law of Nature, but the State of Nature, which is now the primary subject of contemplation. The Roman

had conceived that by careful observation of existing institutions parts of them could be singled out which

either exhibited already, or could by judicious purification be made to exhibit, the vestiges of that reign of

nature whose reality he faintly affirmed. Rousseau's belief was that a perfect social order could be evolved

from the unassisted consideration of the natural state, a social order wholly irrespective of the actual

condition of the world and wholly unlike it. The great difference between the views is that one bitterly and

broadly condemns the present for its unlikeness to the ideal past; while the other, assuming the present to be

as necessary as the past, does not affect to disregard or censure it. It is not worth our while to analyse with

any particularity that philosophy of politics, art, education, ethics, and social relation which was constructed

on the basis of a state of nature. It still possesses singular fascination for the looser thinkers of every country,

and is no doubt the parent, more or less remote, of almost all the prepossessions which impede the

employment of the Historical Method of inquiry, but its discredit with the higher minds of our day is deep

enough to astonish those who are familiar with the extraordinary vitality of speculative error. Perhaps the

question most frequently asked nowadays is not what is the value of these opinions, but what were the causes

which gave them such overshadowing prominence a hundred years ago. The answer is, I conceive, a simple

one. The study which in the last century would best have corrected the misapprehensions into which an

exclusive attention to legal antiquities is apt to betray was the study of religion. But Greek religion, as then

understood, was dissipated in imaginative myths. The Oriental religions, if noticed at all, appeared to be lost

in vain cosmogonies. There was but one body of primitive records which was worth studying the early

history of the Jews. But resort to this was prevented by the prejudices of the time. One of the few

characteristics which the school of Rousseau had in common with the school of Voltaire was an utter disdain

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

of honour with the reasoners of that day to assume not merely that the institutions called after Moses were not

divinely dictated, nor even that they were codified at a later date than that attributed to them, but that they and

the entire Pentateuch were a gratuitous forgery, executed after the return from the Captivity. Debarred,

therefore, from one chief security against speculative delusion, the philosophers of France, in their eagerness

to escape from what they deemed a superstition of the priests, flung themselves headlong into a superstition

But though the philosophy founded on the hypothesis of a state of nature has fallen low in general esteem, in

so far as it is looked upon under its coarser and more palpable aspect, it does not follow that in its subtler

disguises it has lost plausibility, popularity, or power. I believe, as I have said, that it is still the great

antagonist of the Historical Method; and whenever (religious objections apart) any mind is seen to resist or

contemn that mode of investigation, it will generally be found under the influence of a prejudice or vicious

bias traceable to a conscious or unconscious reliance on a nonhistoric, 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, other they

have actually created, to a great number they have given expression and form. They visibly enter largely into

the ideas which constantly radiate from France over the civilised world, and thus become part of the general

body of thought by which its civilisation is modified. The value of the influence which they thus exercise

over the fortunes of the race is of course one of the points which our age debates most warmly, and it is

beside the purpose of this treatise to discuss it. Looking back, however, to the period at which the theory of

the state of nature acquired the maximum of political importance, there are few who will deny that it helped

most powerfully to bring about the grosser disappointments of which the first French Revolution was fertile.

It gave birth, or intense stimulus, to the vices of mental habit all but universal at the time, disdain of positive

law, impatience of experience, and the preference of a priori to all other reasoning. In proportion too as this

philosophy fixes its grasp on minds which have thought less than others and fortified themselves with smaller

observation, its tendency is to become distinctly anarchical. It is surprising to note how many of the

Sophismes Anarchiques which Dumont published for Bentham, and which embody Bentham's exposure of

errors distinctively French, are derived from the Roman hypothesis in its French transformation, and are

unintelligible unless referred to it. On this point too it is a curious exercise to consult the Moniteur during the

principal eras of the Revolution. The appeals to the Law and State of Nature become thicker as the times

grow darker. They are comparatively rare in the Constituent Assembly; they are much more frequent in the

Legislative; in the Convention, amid the din of debate on conspiracy and war, they are perpetual.

There is a single example which very strikingly illustrates the effects of the theory of natural law on modern

society, and indicates how very far are those effects from being exhausted. There cannot, I conceive, be any

question that to the assumption of a Law Natural we owe the doctrine of the fundamental equality of human

beings. That "all men are equal" is one of a large number of legal propositions which, in progress of time,

have become political. The Roman jurisconsults of the Antonine era lay down that "omnes homines natura

aequales sunt," but in their eyes this is a strictly juridical axiom. They intend to affirm that, under the

hypothetical Law of Nature, and in so far as positive law approximates to it, the arbitrary distinctions which

the Roman Civil Law maintained between classes of persons cease to have a legal existence. The rule was

one of considerable importance to the Roman practitioner, who required to be reminded that, wherever

Roman jurisprudence was assumed to conform itself exactly to the code of Nature, there was no difference in

the contemplation of the Roman tribunals between citizen and foreigner, between freeman and slave, between

Agnate and Cognate. The jurisconsults who thus expressed themselves most certainly never intended to

censure the social arrangements under which civil law fell somewhat short of its speculative type; nor did

they apparently believe that the world would ever see human society completely assimilated to the economy

of nature. But when the doctrine of human equality makes its appearance in a modern dress it has evidently

clothed itself with a new shade of meaning. Where the Roman jurisconsult had written "aequales 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 conceding the origin, composition, and development of human institutions, were beginning to express

the sense of a great standing wrong suffered by mankind. As early as the beginning of the fourteenth century,

the current language conceding the birthstate of men, though visibly intended to be identical with that of

Ulpian and his contemporaries, has assumed an altogether different form and meaning. The preamble to the

celebrated ordinance of King Louis Hutin enfranchising the serfs of the royal domains would have sounded

strangely to Roman ears. "Whereas, according to natural law, everybody ought to be born free; and by some

usages and customs which, from long antiquity, have been introduced and kept until now in our realm, and

peradventure by reason of the misdeeds of their predecessors, many persons of our common people have

fallen into servitude, therefore, We, etc." This is the enunciation not of a legal rule but of a political dogma;

and from this time the equality of men is spoken of by the French lawyers just as if it were a political truth

which happened to have been preserved among the archives of their science. Like all other deductions from

the hypothesis of a Law Natural, and like the belief itself in a Law of Nature, it was languidly assented to and

suffered to have little influence on opinion and practice until it passed out of the possession of the lawyers

into that of the literary men of the eighteenth century and of the public which sat at their feet. With them it

became the most distinct tenet of their creed, and was even regarded as a summary of all the others. It is

probable, however, that the power which it ultimately acquired over the events of 1789 was not entirely

owing to its popularity in France, for in the middle of the century it passed over to America. The American

lawyers of the time, and particularly those of Virginia, appear to have possessed a stock of knowledge which

differed chiefly from that of their English contemporaries in including much which could only have been

derived from the legal literature of continental Europe. A very few glances at the writings of Jefferson will

show how strongly his mind was affected by the semijuridical, semipopular opinions which were

fashionable in France, and we cannot doubt that it was sympathy with the peculiar ideas of the French jurists

which led him and the other colonial lawyers who guided the course of events in America to join the specially

French assumption that "all men are born equal" with the assumption, more familiar to Englishmen, that "all

men are born free," in the very first lines of their Declaration of Independence. The passage was one of great

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

emphatically affirming the fundamental equality of human beings, gave an impulse to political movements in

their own country, and in a less degree in Great Britain, which is far from having yet spent itself; but besides

this they returned the dogma they had adopted to its home in France, endowed with vastly greater energy and

enjoying much greater claims on general reception and respect. Even the more cautious politicians of the first

Constituent Assembly repeated Ulpian's proposition as if it at once commended itself to the instincts and

intuitions of mankind; and of all the "principles of 1789" it is the one which has been least strenuously

assailed, which has most thoroughly leavened modern opinion, and which promises to modify most deeply

The grandest function of the Law of Nature was discharged in giving birth to modern International Law and

to the modern Law of War, but this part of its effects must here be dismissed with consideration very unequal

Among the postulates which form the foundation of International Law, or of so much of it as retains the

figure which it received from its original architects, there are two or three of preeminent importance. The

first of all is expressed in the position that there is a determinable Law of Nature. Grotius and his successor

took the assumption directly from the Romans, but they differed widely from the Roman jurisconsults and

from each other in their ideas as to the mode of determination. The ambition of almost every Publicist who

has flourished since the revival of letters has been to provide new and more manageable definitions of Nature

and of her law, and it is indisputable that the conception in passing through the long series of writers on

Public Law has gathered round it a large accretion, consisting of fragments of ideas derived from nearly

every theory of ethic 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 characteristic 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 jurisconsult affirmed by them

to be in harmony with the Jus Gentium, the publicists have found a reason for borrowing it, however plainly

it may bear the marks of a distinctively Roman origin. We may observe too that the derivative theories are

afflicted with the weakness of the primary notion. In the majority of the Publicists, the mode of thought is

still "mixed." In studying these writers, the great difficulty is always to discover whether they are discussing

law or morality whether the state of international relations they describe is actual or ideal whether they

The assumption that Natural Law is binding on states inter se is the next in rank of those which underlie

International Law. A series of assertions or admissions of this principle may be traced up to the very infancy

of modern juridical science, and at first sight it seems a direct inference from the teaching of the Romans. The

civil condition of society being distinguished from the natural by the fact that in the first there is a distinct

author of law, while in the last there is none, it appears as if the moment a number of units were

acknowledged to obey no common sovereign or political superior they were thrown back on the ulterior

behests of the Law Natural. States are such units; the hypothesis of their independence excludes the notion of

a common lawgiver, and draws with it, therefore, according to a certain range of ideas, the notion of

subjection to the primeval order of nature. The alternative is to consider independent communities as not

related to each other by any law, but this condition of lawlessness is exactly the vacuum which the Nature of

the jurisconsults abhorred. There is certainly apparent reason for thinking that if the mind of a Roman lawyer

rested on any sphere from which civil law was banished, it would instantly fill the void with the ordinances of

Nature. It is never safe, however, to assume that conclusions, however certain and immediate in our own

eyes, were actually drawn at any period of history. No passage has ever been adduced from the remains of

Roman law which, in my judgment, proves the jurisconsults to have believed natural law to have obligatory

force between independent commonwealths; and we cannot but see that to citizens of the Roman empire who

regarded their sovereign's dominions as conterminous with civilisation, the equal subjection of states to the

Law of Nature, if contemplated at all, must have seemed at most an extreme result of curious speculation.

The truth appears to be that modern International Law, undoubted as is its descent from Roman law, is only

connected with it by an irregular filiation. The early modern interpreters of the jurisprudence of Rome,

misconceiving the meaning of Jus Gentium, assumed without hesitation that the Romans had bequeathed to

them a system of rules for the adjustment of international transactions. This "Law of Nations" was at first an

authority which had formidable competitors to strive with, and the condition of Europe was long such as to

preclude its universal reception. Gradually, however, the western world arranged itself in a form more

favourable to the theory of the civilians; circumstances destroyed the credit of rival doctrines; and at last, at a

peculiarly felicitous conjuncture, Ayala and Grotius were able to obtain for it the enthusiastic assent of

Europe, an assent which has been over and over again renewed in every variety of solemn engagement. The

great men to whom its triumph is chiefly owing attempted, it need scarcely be said, to place it on an entirely

new basis, and it is unquestionable that in the course of this displacement they altered much of its structure,

though far less of it than is commonly supposed. Having adopted from the Antonine jurisconsults the position

that the Jus Gentium and the Jus Naturae were identical, Grotius, with his immediate predecessors and his

immediate successors, attributed to the Law of Nature an authority which would never perhaps have been

claimed for it, if "Law of Nations" had not in that age been an ambiguous expression. They laid down

unreservedly that Natural Law is the code of states, and thus put in operation a process which has continued

almost down to our own day, the process of engrafting on the international system rules which are supposed

to have been evolved from the unassisted contemplation of the conception of Nature. There is too one

consequence of immense practical importance to mankind which, though not unknown during the early

modern history of Europe, was never clearly or universally acknowledged till the doctrines of the Grotian

school had prevailed. If the society of nations is governed by Natural Law, the atoms which compose it must

be absolutely equal. Men under the sceptre of Nature are all equal, and accordingly commonwealths are equal

if the international state be one of nature. The proposition that independent communities, however different in

size and power, are all equal in the view of the law of nations, has largely contributed to the happiness of

mankind, though it is constantly threatened by the political tendencies of each successive age. It is a doctrine

which probably would never have obtained a secure footing at all if international Law had not been entirely

derived from the majestic claims of Nature by the Publicists who wrote after the revival of letters.

On the whole, however, it is astonishing, as I have observed before, how small a proportion the additions

made to international Law since Grotius's day bear to the ingredients which have been simply taken from the

most ancient stratum of the Roman Jus Gentium. Acquisition of territory has always been the great spur of

national ambition, and the rules which govern this acquisition, together with the rules which moderate the

wars in which it too frequently results, are merely transcribed from the part of the Roman law which treats of

the modes of acquiring property jure gentium. These modes of acquisition were obtained by the elder

jurisconsults, as I have attempted to explain, by abstracting a common ingredient from the usages observed to

prevail among the various tribes surrounding Rome; and, having been classed on account of their origin in the

"law common to all nations," they were thought by the later lawyers to fit in, on the score of their simplicity,

with the more recent conception of a Law Natural. They thus made their way into the modern Law of

Nations, and the result is that those parts of the international system which refer to dominion, its nature, its

limitations, the modes of acquiring and securing it, are pure Roman Property Law so much, that is to say,

of the Roman Law of Property as the Antonine jurisconsults imagined to exhibit a certain congruity with the

natural state. In order that these chapters of International Law may be capable of application, it is necessary

that sovereigns should be related to each other like the members of a group of Roman proprietors. This is

another of the postulates which lie at the threshold of the International Code, and it is also one which could

not possibly have been subscribed to during the first centuries of modern European history.. It is resolvable

into the double proposition that "sovereignty is territorial," i.e. that it is always associated with the

proprietorship of a limited portion of the earth's surface, and that "sovereigns inter se are to be deemed not

Many contemporary writers on International Law tacitly assume that the doctrines of their system, founded

on principles of equity and common sense, were capable of being readily reasoned out in every stage of

modern civilisation. But this assumption, while it conceals some real defects of the international theory, is

altogether untenable, so far as regards a large part of modern history. It is not true that the authority of the Jus

Gentium in the concerns of nations was always uncontradicted; on the contrary, it had to struggle long against

the claims of several competing systems. It is again not true that the territorial character of sovereignty was

always recognised, for long after the dissolution of the Roman dominion the minds of men were under the

empire of ideas irreconcileable with such a conception. An old order of things, and of views founded on it,

had to decay a new Europe, and an apparatus of new notions congenial to it, had to spring up before two

It is a consideration well worthy to be kept in view that during a large part of what we usually term modern

history no such conception was entertained as that of "territorial sovereignty." Sovereignty was not associated

with dominion over a portion or subdivision of the earth. The world had lain for so many centuries under the

shadow of Imperial Rome as to have forgotten that distribution of the vast spaces comprised in the empire

which had once parcelled them out into a number of independent commonwealths, claiming immunity from

extrinsic interference, and pretending to equality of national rights. After the subsidence of the barbarian

irruptions, the notion of sovereignty that prevailed seems to have been twofold. On the one hand it assumed

the form of what may be called "tribesovereignty." The Franks, the Burgundians, the Vandals, the

Lombards, and Visigoths were masters, of course, of the territories which they occupied, and to which some

of them have given a geographical appellation; but they based no claim of right upon the fact of territorial

possession, and indeed attached no importance to it whatever. They appear to have retained the traditions

which they brought with them from the forest and the steppe, and to have still been in their own view a

patriarchal society a nomad horde, merely encamped for the time upon the soil which afforded them

sustenance. Part of Transalpine Gaul, with part of Germany, had now become the country de facto occupied

by the Franks it was France; but the Merovingian line of chieftains, the descendants of Clovis, were not

Kings of France, they were Kings of the Franks. The alternative to this peculiar notion of sovereignty appears

to have been and this is the important point the idea of universal dominion. The moment a monarch

departed from the special relation of chief to clansmen, and became solicitous, for purposes of his Own, to

invest himself with a novel form of sovereignty, the only precedent which suggested itself for his adoption

was the domination of the Emperors of Rome. To parody a common quotation, he became "aut Caesar aut

nullus." Either he pretended to the full prerogative of the Byzantine Emperor, or he had no political status

whatever. In our own age, when a new dynasty is desirous of obliterating the prescriptive title of a deposed

line of sovereigns, it takes its designation from the people, instead of the territory. Thus we have Emperors

and Kings of the French, and a King of the Belgians. At the period of which we have been speaking, under

similar circumstances a different alternative presented itself. The Chieftain who would no longer call himself

King of the tribe must claim to be Emperor of the world. Thus, when the hereditary Mayors of the Palace had

ceased to compromise with the monarchs they had long since virtually dethroned, they soon became

unwilling to call themselves Kings of the Franks, a title which belonged to the displaced Merovings; but they

could not style themselves Kings of France, for such a designation, though apparently not unknown, was not

a title of dignity. Accordingly they came forward as aspirants to universal empire. Their motive has been

greatly misapprehended. It has been taken for granted by recent French writers that Charlemagne was far

before his age, quite as much in the character of his designs as in the energy with which he prosecuted them.

Whether it be true or not that anybody is at any time before his age, it is certainly true that Charlemagne, in

aiming at an unlimited dominion, was emphatically taking the only course which the characteristic ideas of

his age permitted him to follow. Of his intellectual eminence there cannot be a question, but it is proved by

These singularities of view were not altered on the partition of the inheritance of Charlemagne among his

three grandsons. Charles the Bald, Lewis, and Lothair were still theoretically if it be proper to use the

word Emperors of Rome. Just as the Caesars of the Eastern and Western Empires had each been de jure

emperor of the whole world, with defacto control over half of it, so the three Carlovingians appear to have

considered their power as limited, but their title as unqualified. The same speculative universality of

sovereignty continued to be associated with the Imperial throne after the second division on the death of

Charles the Fat, and, indeed, was never thoroughly dissociated from it so long as the empire of Germany

lasted. Territorial sovereignty the view which connects sovereignty with the possession of a limited

portion of the earth's surface was distinctly an offshoot, though a tardy one, of feudalism. This might have

been expected a priori, for it was feudalism which for the first time linked personal duties, and by

consequence personal rights, to the ownership of land. Whatever be the proper view of its origin and legal

nature, the best mode of vividly picturing to ourselves the feudal organisation is to begin with the basis, to

consider the relation of the tenant to the patch of soil which created and limited his services and then to

mount up, through narrowing circles of superfeudation, till we approximate to the apex of the system.

Where that summit exactly was during the later portion of the dark ages it is not easy to decide. Probably,

wherever the conception of tribe sovereignty had really decayed, the topmost point was always assigned to

the supposed successor of the Caesars of the West. But before long, when the actual sphere of Imperial

authority had immensely contracted, and when the emperors had concentrated the scanty remains of their

power upon Germany and North Italy, the highest feudal superiors in all the outlying portions of the former

Carlovingian empire found themselves practically without a supreme head. Gradually they habituated

themselves to the new situation, and the fact of immunity put at last out of sight the theory of dependence;

but there are many symptoms that this change was not quite easily accomplished; and, indeed, to the

impression that in the nature of things there must necessarily be a culminating domination somewhere, we

may, no doubt, refer the increasing tendency to attribute secular superiority to the See of Rome. The

completion of the first stage in the revolution of opinion is marked, of course, by the accession of the

Capetian dynasty in France. When the feudal prince of a limited territory surrounding Paris began, from the

accident of his uniting an unusual number of suzerainties in his own person, to call himself King of France,

he became king in quite a new sense, a sovereign standing in the same relation to the soil of France as the

baron to his estate, the tenant to his freehold. The precedent, however, was as influential as it was novel, and

the form of the monarchy in France had visible effects in hastening changes which were elsewhere

proceeding in the same direction. The kingship of our AngloSaxon regal houses was midway between the

chieftainship of a tribe and a territorial supremacy,. but the superiority of the Norman monarchs, imitated

from that of the King of France, was distinctly a territorial sovereignty. Every subsequent dominion which

was established or consolidated was formed on the later model. Spain, Naples, and the principalities founded

on the ruins of municipal freedom in Italy, were all under rulers whose sovereignty was territorial. Few

things, I may add, are more curious than the gradual lapse of the Venetians from one view to the other. At the

commencement of its foreign conquests, the republic regarded itself as an antitype of the Roman

commonwealth, governing a number of subject provinces. Move a century onwards, and you find that it

wishes to be looked upon as a corporate sovereign, claiming the rights of a feudal suzerain over its

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 RomanoGerman empire, the connection of the confederate states was regulated by the

complex and as yet incomplete mechanism of the Imperial constitution; and, surprising as it may seem to us,

it was a favourite notion of German lawyers that the relations of commonwealths, whether inside or outside

the empire, ought to be regulated not by the Jus Gentium, but by the pure Roman jurisprudence, of which

Caesar was still the centre. This doctrine was less confidently repudiated in the outlying countries than we

might have supposed antecedently; but, substantially, through the rest of Europe feudal subordinations

furnished a substitute for a public law; and when those were undetermined or ambiguous, there lay behind, in

theory at least, a supreme regulating force in the authority of the head of the Church. It is certain, however,

that both feudal and ecclesiastical influences were rapidly decaying during the fifteenth, and even the

fourteenth century,. and if we closely examine the current pretexts of wars, and the avowed motives of

alliances, it will be seen that, step by step with the displacement of the old principles, the views afterwards

harmonised and consolidated by Ayala and Grotius were making considerable progress, though it was silent

and but slow. Whether the fusion of all the sources of authority would ultimately have evolved a system of

international relations, and whether that system would have exhibited material differences from the fabric of

Grotius, is not now possible to decide, for as a matter of fact the Reformation annihilated all its potential

elements except one. Beginning in Germany it divided the princes of the empire by a gulf too broad to be

bridged over by the Imperial supremacy, even if the Imperial superior had stood neutral. He, however, was

forced to take colour with the church against the reformer; the Pope was, as a matter of course, in the same

predicament; and thus the two authorities to whom belonged the office of mediation between combatants

became themselves the chiefs of one great faction in the schism of the nations. Feudalism, already enfeebled

and discredited as a principle of public relations, furnished no bond whatever which was stable enough to

countervail the alliances of religion. In a condition, therefore, of public law which was little less than chaotic,

those views of a state system to which the Roman jurisconsults were supposed to have given their sanction

alone remained standing. The shape, the symmetry and the prominence which they assumed in the hands of

Grotius are known to every educated man; but the great marvel of the Treatise "De Jure Belli et Pacis," was

its rapid, complete, and universal success. The horrors of the Thirty Years' War, the boundless terror and pity

which the unbridled license of the soldiery was exciting, must, no doubt, be taken to explain that success in

some measure, but they do not wholly account for it. Very little penetration into the ideas of that age is

required to convince one that if the ground plan of the international edifice which was sketched in the great

book of Grotius had not appeared to be theoretically perfect, it would have been discarded by jurists and

It is obvious that the speculative perfection of the Grotian system is intimately connected with that

conception of territorial sovereignty which we have been discussing. The theory of International Law

assumes that commonwealths are, relatively to each other, in a state of nature; but the component atoms of a

natural society must, by the fundamental assumption, be insulated and independent of each other. If there be a

higher power connecting them, however slightly and occasionally by the claim of common supremacy, the

very conception of a common superior introduces the notion of positive law, and excludes the idea of a law

natural. It follows, therefore, that if the universal suzerainty of an Imperial head had been admitted even in

bare theory, the labours of Grotius would have been idle. Nor is this the only point of junction between

modern public law and those views of sovereignty of which I have endeavoured to describe the development.

I have said that there are entire departments of international jurisprudence which consist of the Roman Law

of Property. What then is the inference? It is, that if there had been no such change as I have described in the

estimate of sovereignty if sovereignty had not been associated with the proprietorship of a limited portion

of the earth, had not, in other words, become territorial three parts of the Grotian theory would have been

The necessity of submitting the subject of jurisprudence to scientific treatment has never been entirely lost

sight of in modern times, and the essays which the consciousness of this necessity has produced have

proceeded from minds of very various calibre, but there is not much presumption, I think, in asserting that

what has hitherto stood in the place of a science has for the most part been a set of guesses, those very

guesses of the Roman lawyers which were examined in the two preceding chapters. A series of explicit

statements, recognising and adopting these conjectural theories of a natural state, and of a system of

principles congenial to it, has been continued with but brief interruption from the days of their inventors to

our own. They appear in the annotations of the Glossators who founded modern jurisprudence, and in the

writings of the scholastic jurists who succeeded them. They are visible in the dogmas of the canonists. They

are thrust into prominence by those civilians of marvellous erudition, who flourished at the revival of ancient

letters. Grotius and his successors invested them not less with brilliancy and plausibility than with practical

importance. They may be read in the introductory chapters of our own Blackstone, who has transcribed them

textually from Burlamaqui, and wherever the manuals published in the present day for the guidance of the

student or the practitioner begin with any discussion of the first principles of law, it always resolves itself into

a restatement of the Roman hypothesis. It is however from the disguises with which these conjectures

sometimes clothe themselves, quite as much as from their native form, that we gain an adequate idea of the

subtlety with which they mix themselves in human thought. The Lockeian theory of the origin of Law in a

Social Compact scarcely conceals its Roman derivation, and indeed is only the dress by which the ancient

views were rendered more attractive to a particular generation of the moderns; but on the other hand the

theory of Hobbes on the same subject was purposely devised to repudiate the reality of a law of nature as

conceived by the Romans and their disciples. Yet these two theories, which long divided the reflecting

politicians of England into hostile camps, resemble each other strictly in their fundamental assumption of a

nonhistoric, unverifiable, condition of the race. Their authors differed as to the characteristics of the

praesocial state, and as to the nature of the abnormal action by which men lifted themselves out of it into

that social organisation with which alone we are acquainted, but they agreed in thinking that a great chasm

separated man in his primitive condition from man in society, and this notion we cannot doubt that they

borrowed, consciously or unconsciously, from the Romans. If indeed the phenomena of law be regarded in

the way in which these theorists regarded them that is, as one vast complex whole it is not surprising

that the mind should often evade the task it has set to itself by falling back on some ingenious conjecture

which (plausibly interpreted) will seem to reconcile everything, or else that it should sometimes abjure in

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 constancy suggested is, that laws are the creatures of climate, local

situation, accident, or imposture the fruit of any causes except those which appear to operate with

tolerable constancy. Montesquieu seems, in fact, to have looked on the nature of man as entirely plastic, as

passively reproducing the impressions, and submitting implicitly to the impulses, which it receives from

without. And here no doubt lies the error which vitiates his system as a system. He greatly underrates the

stability of human nature. He pays little or no regard to the inherited qualities of the race, those qualities

which each generation receives from its predecessors, and transmits but slightly altered to the generation

which follows it. It is quite true, indeed, that no complete account can be given of social phenomena, and

consequently of laws, till due allowance has been made for those modifying causes which are noticed in the

Esprit des Lois; but their number and their force appear to have been overestimated by Montesquieu. Many of

the anomalies which he parades have since been shown to rest on false report or erroneous construction, and

of those which remain not a few prove the permanence rather than the variableness of maw's nature, since

they are relics of older stages of the race which have obstinately defied the influences that have elsewhere

had effect. The truth is that the stable part of our mental, moral, and physical constitution is the largest part of

it, and the resistance it opposes to change is such that, though the variations of human society in a portion of

the world are plain enough, they are neither so rapid nor so extensive that their amount, character, and general

direction cannot be ascertained. An approximation to truth may be all that is attainable with our present

knowledge, but there is no reason for thinking that is so remote, or (what is the same thing) that it requires so

The other theory which has been adverted to is the historical theory of Bentham. This theory which is

obscurely (and, it might even be said, timidly) propounded in several parts of Bentham's works is quite

distinct from that analysis of the conception of law which he commenced in the "Fragment on Government,"

and which was more recently completed by Mr John Austin. The resolution of a law into a command of a

particular nature, imposed under special conditions, does not affect to do more than protect us against a

difficulty a most formidable one certainly of language. The whole question remains open as to the

motives of societies in imposing. these commands on themselves, as to the connexion of these commands

with each other, and the nature of their dependence on those which preceded them, and which they have

superseded. Bentham suggests the answer that societies modify, and have always modified, their laws

according to modifications of their views of general expediency. It is difficult to say that this proposition is

false, but it certainly appears to be unfruitful. For that which seems expedient to a society, or rather to the

governing part of it, when it alters a rule of law is surely the same thing as the object, whatever it may be,

which it has in view when it makes the change. Expediency and the greatest good are nothing more than

different names for the impulse which prompts the modification; and when we lay down expediency as the

rule of change in law or opinion, all we get by the proposition is the substitution of an express term for a term

There is such widespread dissatisfaction with existing theories of jurisprudence, and so general a conviction

that they do not really solve the questions they pretend to dispose of, as to justify the suspicion that some line

of inquiry necessary to a perfect result has been incompletely followed or altogether omitted by their authors.

And indeed there is one remarkable omission with which all these speculations are chargeable, except

perhaps those of Montesquieu. They take no account of what law has actually been at epochs remote from the

particular period at which they made their appearance. Their originators carefully observed the institutions of

their own age and civilisation, and those of other ages and civilisations with which they had some degree of

intellectual sympathy, but, when they turned their attention to archaic states of society which exhibited much

superficial difference from their own, they uniformly ceased to observe and began guessing. The mistake

which they committed is therefore analogous to the error of one who, in investigating the laws of the material

universe, should commence by contemplating the existing physical world as a whole, instead of beginning

with the particles which are its simplest ingredients. One does not certainly see why such a scientific solecism

should be more defensible in jurisprudence than in any other region of thought. It would seem antecedently

that we ought to commence with the simplest social forms in a state as near as possible to their rudimentary

condition. In other words, if we followed the course usual in such inquiries, we should penetrate as far up as

we could in the history of primitive societies. The phenomena which early societies present us with are not

easy at first to understand, but the difficulty of grappling with them bears no proportion to the perplexities

which beset us in considering the baffling entanglement of modern social organisation. It is a difficulty

arising from their strangeness and uncouthness, not from their number and complexity. One does not readily

get over the surprise which they occasion when looked at from a modern point of view; but when that is

surmounted they are few enough and simple enough. But even if they gave more trouble than they do, no

pains would be wasted in ascertaining the germs out of which has assuredly been unfolded every form of

moral restraint which controls our actions and shapes our conduct at the present moment.

The rudiments of the social state, so far as they are known to us at all, are known through testimony of three

sorts accounts by contemporary observers of civilisations less advanced than their own, the records which

particular races have preserved conceding their primitive history, and ancient law. The first kind of evidence

is the best we could have expected. As societies do not advance concurrently, but at different rates of

progress, there have been epochs at which men trained to habits of methodical observation have really been

in a position to watch and describe the infancy of mankind. Tacitus made the most of such an opportunity;

but the Germany, unlike most celebrated classical books, has not induced others to follow the excellent

example set by its author, and the amount of this sort of testimony which we possess is exceedingly small.

The lofty contempt which a civilised people entertains for barbarous neighbours has caused a remarkable

negligence in observing therein, and this carelessness has been aggravated at times by fear, by religious

prejudice, and even by the use of these very terms civilisation and barbarism which convey to most

persons the impression of a difference not merely in degree but in kind. Even the Germany has been

suspected by some critics of sacrificing fidelity to poignancy of contrast and picturesqueness of narrative.

Other histories too, which have been handed down to us among the archives of the people to whose infancy

they relate, have been thought distorted by the pride of race or by the religious sentiment of a newer age. It is

important then to observe that these suspicions, whether groundless or rational, do not attach to a great deal

of archaic law. Much of the old law which has descended to us was preserved merely because it was old.

Those who practised and obeyed it did not pretend to understand it; and in some cases they even ridiculed and

despised it. They offered no account of it except that it had come down to them from their ancestors. If we

confine our attention, then, to those fragments of ancient institutions which cannot reasonably be supposed to

have been tampered with, we are able to gain a clear conception of certain great characteristic of the society

to which they originally belonged. Advancing a step further, we can apply our knowledge to systems of law

which, like the Code of Menu, are as a whole of suspicious authenticity; and, using the key we have obtained,

we are in a position to discriminate those portions of them which are truly archaic from those which have

been affected by the prejudices, interests, or ignorance of the compiler. It will at least be acknowledged that,

if the materials for this process are sufficient, and if the comparisons be accurately executed, the methods

followed are as little objectionable as those which have led to such surprising results in comparative

The effect of the evidence derived from comparative jurisprudence is to establish that view of the primeval

condition of the human race which is known as the Patriarchal Theory. There is no doubt, of course, that this

theory was originally based on the Scriptural history of the Hebrew patriarchs in Lower Asia; but, as has been

explained already, its connexion with Scripture rather militated than otherwise against its reception as a

complete theory, since the majority of the inquirers who till recently addressed themselves with most

earnestness to the colligation of social phenomena, were either influenced by the strongest prejudice against

Hebrew antiquities or by the strongest desire to construct their system without the assistance of religious

records. Even now there is perhaps a disposition to undervalue these accounts, or rather to decline

generalising from them, as forming part of the traditions of a Semitic people. It is to be noted, however, that

the legal testimony comes nearly exclusively from the institutions of societies belonging to the

IndoEuropean stock, the Romans, Hindoos, and Sclavonians supplying the greater part of it; and indeed the

difficulty at the present stage of the inquiry, is to know where to stop, to say of what races of men it is not

allowable to lay down that the society in which they are united was originally organised on the patriarchal.

model. The chief lineaments of such a society, as collected from the early chapters in Genesis, I need not

attempt to depict with any minuteness, both because they are familiar to most of us from our earliest

childhood, and because, from the interest once attaching to the controversy which takes its name from the

debate between Locke and Filmer, they fill a whole chapter, though not a very profitable one, in English

literature. The points which lie on the surface of the history are these: The eldest male parent the eldest

ascendant is absolutely supreme in his household. His dominion extends to life and death, and is as

unqualified over his children and their houses as over his slaves; indeed the relations of sonship and serfdom

appear to differ in little beyond the higher capacity which the child in blood possesses of becoming one day

the head of a family himself. The flocks and herds of the children are the flocks and herds of the father, and

the possessions of the parent, which he holds in a representative rather than in a proprietary character, are

equally divided at his death among his descendants in the first degree, the eldest son sometimes receiving a

double share under the name of birthright, but more generally endowed with no hereditary advantage beyond

an honorary precedence. A less obvious inference from the Scriptural accounts is that they seem to plant us

on the traces of the breach which is first effected in the empire of the parent. The families of Jacob and Esau

separate and form two nations; but the families of Jacob's children hold together and become a people. This

looks like the immature germ of a state or commonwealth, and of an order of rights superior to the claims of

If I were attempting for the more special purposes of the jurist to express compendiously the characteristics of

the situation in which mankind disclose themselves at the dawn of their history, I should be satisfied to quote

a few verses from the Odyssee of Homer : "They have neither assemblies for consultation nor themistes, but

every one exercises jurisdiction over his wives and his children, and they pay no regard to one another."

These lines are applied to the Cyclops, and it may not perhaps be an altogether fanciful idea when I suggest

that the Cyclops is Homer's type of an alien and less advanced civilisation; for the almost physical loathing

which a primitive community feels for men of widely different manners from its own usually expresses itself

by describing them as monsters, such as giants, or even (which is almost always the case in Oriental

mythology) as demons. However that may be, the verses condense in themselves the sum of the hints which

are given us by legal antiquities. Men are first seen distributed in perfectly insulated groups, held together by

obedience to the parent. Law is the parent's word, but it is not yet in the condition of those themistes which

were analysed in the first chapter of this work. When we go forward to the state of society in which these

early legal conceptions show themselves as formed, we find that they still partake of the mystery and

spontaneity which must have seemed to characterise a despotic father's commands, but that at the same time,

inasmuch as they proceed from a sovereign, they presuppose a union of family groups in some wider

organisation. The next question is, what is the nature of this union and the degree of intimacy which it

involves. It is just here that archaic law renders us one of the greatest of its services and fills up a gap which

otherwise could only have been bridged by conjecture. It is full, in all its provinces, of the clearest indications

that society in primitive times was not what it is assumed to be at present, a collection of individuals. In fact,

and in the view of the men who composed it, it was an aggregation of families. The contrast may be most

forcibly expressed by saying that the unit of an ancient society was the Family, of a modern society the

Individual. We must be prepared to find in ancient law all the consequences of this difference. It is so framed

as to be adjusted to a system of small independent corporations. It is therefore scanty because it is

supplemented by the despotic commands of the heads of households. It is ceremonious, because the

transactions to which it pays regard. resemble international concerns much more than the quick play of

intercourse between individuals. Above all it has a peculiarity of which the full importance cannot be shown

at present. It takes a view of life whol1y unlike any which appears in developed jurisprudence. Corporations

never die, and accordingly primitive law considers the entities with which it deals, i.e. the patriarchal or

family groups, as perpetual and inextinguishable. This view is closely allied to the peculiar aspect under

which, in very ancient times, moral attributes present themselves. The moral elevation and moral debasement

of the individual appear to be confounded with, or postponed to, the merits and offences of the group to

which the individual belongs. If the community sins, its guilt is much more than the sum of the offences

committed by its members; the crime is a corporate act. and extends in its consequences to many more

persons than have shared in its actual perpetration. If, on the other hand. the individual is conspicuously

guilty, it is his children, his kinsfolk, his tribesmen, or his fellowcitizens, who suffer with him, and

sometimes for him. It thus happens that the ideas of moral responsibility and retribution often seem to be

more clearly realised at very ancient than at more advanced periods, for, as the family group is immortal, and

its liability to punishment indefinite, the primitive mind is not perplexed by the questions which become

troublesome as soon as the individual is conceived as altogether separate from the group. One step in the

transition from the ancient and simple view of the matter to the theological or metaphysical explanations of

later days is marked by the early Greek notion of an inherited curse. The bequest received by his posterity

from the original criminal was not a liability to punishment, but a liability to the commission of fresh

offences which drew with them a condign retribution; and thus the responsibility of the family was reconciled

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

It would be a very simple explanation of the origin of society if we could base a general conclusion on the

hint furnished us by the Scriptural example already adverted to, and could suppose that communities began to

exist wherever a family held together instead of separating at the death of its patriarchal chieftain. In most of

the Greek states and in Rome there long remained the vestiges of an ascending series of groups out of which

the State was at first constituted. The Family, House, and Tribe of the Romans may be taken as the type of

them, and they are so described to us that we can scarcely help conceiving them as a system of concentric

circles which have gradually expanded from the same point. The elementary group is the Family, connected

by common subjection to the highest male ascendant. The aggregation of Families forms the Gens or House.

The aggregation of Houses makes the Tribe. The aggregation of Tribes constitutes the Commonwealth. Are

we at liberty to follow these indications, and to lay down that the commonwealth is a collection of persons

united by common descent from the progenitor of an original family? Of this we may at least be certain, that

all ancient societies regarded themselves as having proceeded from one original stock, and even laboured

under an incapacity for comprehending any reason except this for their holding together in political union.

The history of political ideas begins, in fact, with the assumption that kinship in blood is the sole possible

ground of community in political functions; nor is there any of those subversions of feeling, which we term

emphatically revolutions, so startling and so complete as the change which is accomplished when some other

principle such as that, for instance, of local contiguity establishes itself for the first time as the basis of

common political action. It may be affirmed then of early commonwealths that their citizens considered all

the groups in which they claimed membership to be founded on common lineage. What was obviously true of

the Family was believed to be true first of the House, next of the Tribe, lastly of the State. And yet we find

that along with this belief, or, if we may use the word, this theory, each community preserved records or

traditions which distinctly showed that the fundamental assumption was false. Whether we look to the Greek

states, or to Rome, or to the Teutonic aristocracies in Ditmarsh which furnished Niebuhr with so many

valuable illustrations, or to the Celtic clan associations, or to that strange social organisation of the Sclavonic

Russians and Poles which has only lately attracted notice, everywhere we discover traces of passages in their

history when men of alien descent were admitted to, and amalgamated with, the original brotherhood.

Adverting to Rome singly, we perceive that the primary group, the Family, was being constantly adulterated

by the practice of adoption, while stories seem to have been always current respecting the exotic extraction of

one of the original Tribes and concerning a large addition to the houses made by one of the early kings. The

composition of the state, uniformly assumed to be natural, was nevertheless known to be in great measure

artificial. This conflict between belief or theory and notorious fact is at first sight extremely perplexing; but

what it really illustrates is the efficiency with which Legal Fictions do their work in the infancy of society.

The earliest and most extensively employed of legal fictions was that which permitted family relations to be

created artificially, and there is none to which I conceive mankind to be more deeply indebted. If it had never

existed, I do not see how any one of the primitive groups, whatever were their nature, could have absorbed

another, or on what terms any two of them could have combined, except those of absolute superiority on one

side and absolute subjection on the other. No doubt, when with our modern ideas we contemplate the union

of independent communities, we can suggest a hundred modes of carrying it out, the simplest of all being that

the individuals comprised in the coalescing groups shall vote or act together according to local propinquity.

but the idea that a number of persons should exercise political rights in common simply because they

happened to live within the same topographical limits was utterly strange and monstrous to primitive

antiquity. The expedient which in those times commanded favour was that the incoming population should

feign themselves to be descended from the same stock as the people on whom they were engrafted; and it is

precisely the good faith of this fiction, and the closeness with which it seemed to imitate reality, that we

cannot now hope to understand. One circumstance, however, which it is important to recollect, is that the men

who formed the various political groups were certainly in the habit of meeting together periodically, for the

purpose of acknowledging and consecrating their association by common sacrifices. Strangers amalgamated

with the brotherhood were doubtless admitted to these sacrifices; and when that was once done we can

believe that it seemed equally easy, or not more difficult, to conceive them as sharing in the common lineage.

The conclusion then which is suggested by the evidence is, not that all early societies were formed by descent

from the same ancestor, but that all of them which had any permanence and solidity either were so descended

or assumed that they were. An indefinite number of causes may have shattered the primitive groups, but

wherever their ingredients recombined, it was on the model or principle of an association of kindred.

Whatever were the fact, all thought, language, and law adjusted themselves to the assumption. But though all

this seems to me to be established with reference to the communities with whose records we are acquainted,

the remainder of their history sustains the position before laid down as to the essentially transient and

terminable influence of the most powerful Legal Fictions. At some point of time probably as soon as they

felt themselves strong enough to resist extrinsic pressure all these states ceased to recruit themselves by

factitious extensions of consanguinity. They necessarily, therefore, became Aristocracies, in all cases where a

fresh population from any cause collected around them which could put in no claim to community of origin.

Their sternness in maintaining the central principle of a system under which political rights were attainable

on no terms whatever except connexion in blood, real or artificial, taught their inferiors another principle,

which proved to be endowed with a far higher measure of vitality. This was the principle of local contiguity

now recognised everywhere as the condition of community in political functions. A new set of political ideas

came at once into existence, which, being those of ourselves, our contemporaries, and in great measure of our

ancestors, rather obscure our perception of the older theory which they vanquished and dethroned.

The Family then is the type of an archaic society in all the modifications which it was capable of assuming;

but the family here spoken of is not exactly the family as understood by a modern. In order to reach the

ancient conception we must give to our modern ideas an important extension and an important limitation. We

must look on the family as constantly enlarged by the absorption of strangers within its circle, and we must

try to regard the fiction of adoption as so closely simulating the reality of kinship that neither law nor opinion

makes the slightest difference between a real and an adoptive connexion. On the other hand, the persons

theoretically amalgamated into a family by their common descent are practically held together by common

obedience to their highest living ascendant, the father, grandfather, or greatgrandfather. 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 bloodrelationship, have nevertheless de facto

withdrawn themselves from the empire of its ruler, they are always, in the beginnings of law, considered as

lost to the family. It is this patriarchal aggregate the modern family thus cut down on one side and

extended on the other which meets us on the threshold of primitive jurisprudence. Older probably than the

State, the Tribe, and the House, it left traces of itself on private law long after the House and the Tribe had

been forgotten, and long after consanguinity had ceased to be associated with the composition of States. It

will be found to have stamped itself on all the great departments of jurisprudence, and may be detected, I

think, as the true source of many of their most important and most durable characteristics. At the outset, the

peculiarities of law in its most ancient state lead us irresistibly to the conclusion that it took precisely the

same view of the family group which is taken of individual men by the systems of rights and duties now

prevalent throughout Europe. There are societies open to our observation at this very moment whose laws and

usages can scarcely be explained unless they are supposed never to have emerged from this primitive

condition; but in communities more fortunately circumstanced the fabric of jurisprudence fell gradually to

pieces, and if we carefully observe the disintegration we shall perceive that it took place principally in those

portions of each system which were most deeply affected by the primitive conception of the family. In one

allimportant instance, that of the Roman law, the change was effected so slowly, that from epoch to epoch

we can observe the line and direction which it followed, and can even give some idea of the ultimate result to

which it was tending. And, in pursuing this last inquiry, we need not suffer ourselves to be stopped by the

imaginary barrier which separates the modern from the ancient world. For one effect of that mixture of

refined Roman law with primitive barbaric usage, which is known to us by the deceptive name of feudalism,

was to revive many features of archaic jurisprudence which had died out of the Roman world, so that the

decomposition which had seemed to be over commenced again, and to some extent is still proceeding.

On a few systems of law the family organisation of the earliest society has left a plain and broad mark in the

lifelong authority of the Father or other ancestor over the person and property of his descendants, an authority

which we may conveniently call by its later Roman name of Patria Potestas. No feature of the rudimentary

associations of mankind is deposed to by a greater amount of evidence than this, and yet none seems to have

disappeared so generally and so rapidly from the usages of advancing communities. Gaius, writing under the

Antonines, describes the institution as distinctively Roman. It is true that, had he glanced across the Rhine or

the Danube to those tribes of barbarians which were exciting the curiosity of some among his contemporaries,

he would have seen examples of patriarchal power in its crudest form; and in the far East a branch of the

same ethnical stock from which the Romans sprang was repeating their Patria Potestas in some of its most

technical incidents. But among the races understood to be comprised within the Roman empire, Gaius could

find none which exhibited an institution resembling the Roman "Power of the Father," except only the Asiatic

Galatae. There are reasons, indeed, as it seems to me, why the direct authority of the ancestor should, in the

greater number of progressive societies, very shortly assume humbler proportions than belonged to it in their

earliest state. The implicit obedience of rude men to their parent is doubtless a primary fact, which it would

be absurd to explain away altogether by attributing to them any calculation of its advantages; but, at the same

time, if it is natural in the sons to obey the father, it is equally natural that they should look to him for

superior strength or superior wisdom. Hence, when societies are placed under circumstances which cause an

especial value to be attached to bodily and mental vigour, there is an influence at work which tends to confine

the Patria Potestas to the cases where its possessor is actually skilful and strong. When we obtain our first

glimpse of organised Hellenic society, it seems as if supereminent wisdom would keep alive the father's

power in Persons whose bodily strength had decayed; but the relations of Ulysses and Laertes in the Odyssee

appear to show that, where extraordinary valour and sagacity were united in the son, the father in the

decrepitude of age was deposed from the headship of the family. In the mature Greek jurisprudence, the rule

advances a few steps on the practice hinted at in the Homeric literature; and though very many traces of

stringent family obligation remain, the direct authority of the parent is limited, as in European codes, to the

nonage or minority of the children, or, in other words, to the period during which their mental and physical

inferiority may always be presumed. The Roman law, however, with its remarkable tendency to innovate on

ancient usage only just so far as the exigency of the commonwealth may require, preserves both the primeval

institution and the natural limitation to which I conceive it to have been subject. In every relation of life in

which the collective community might have occasion to avail itself of his wisdom and strength, for all

purposes of counsel or of war, the filius familias, or Son under Power, was as free as his father. It was a

maxim of Roman jurisprudence that the Patria Potestas did not extend to the Jus Publicum. Father and son

voted together in the city, and fought side by side in the field; indeed, the son, as general, might happen to

command the father, or, as magistrate, decide on his contracts and punish his delinquencies. But in all the

relations created by Private Law; the son lived under a domestic despotism which, considering the severity it

retained to the last, and the number of centuries through which it endured, constitutes one of the strangest

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 vitae necisque, the power of life and death, and a fortiori of uncontrolled corporal chastisement; he can

modify their personal condition at pleasure; he can give a wife to his son; he can give his daughter in

marriage; he can divorce his children of either sex; he can transfer them to another family by adoption; and he

can sell them. Late in the Imperial period we find vestiges of all these powers, but they are reduced within

very narrow limits. The unqualified right of domestic chastisement has become a right of bringing domestic

offences under the cognisance of the civil magistrate; the privilege of dictating marriage has declined into a

conditional veto; the liberty of selling has been virtually abolished, and adoption itself, destined to lose

almost all its ancient importance in the reformed system of Justinian, can no longer be effected without the

assent of the child transferred to the adoptive parentage. In short, we are brought very close to the verge of

the ideas which have at length prevailed in the modern world. But between these widely distant epochs there

is an interval of obscurity, and we can only guess at the causes which permitted the Patria Potestas to last as

long as it did by rendering it more tolerable than it appears. The active discharge of the most important

among the duties which the son owed to the state must have tempered the authority of his parent if they did

not annul it. We can readily persuade ourselves that the paternal despotism could not be brought into play

without great scandal against a man of full age occupying a high civil office. During the earlier history,

however, such cases of practical emancipation would be rare compared with those which must have been

created by the constant wars of the Roman republic. The military tribune and the private soldier who were in

the field threequarters of a year during the earlier contests, at a later period the proconsul in charge of a

province, and the legionaries who occupied it, cannot have had practical reason to regard themselves as the

slaves of a despotic master; and all these avenues of escape tended constantly to multiply themselves.

Victories led to conquests, conquests to occupations; the mode of occupation by colonies was exchanged for

the system of occupying provinces by standing armies. Each step in advance was a call for the expatriation of

more Roman citizens and a fresh draft on the blood of the failing Latin race. We may infer, I think, that a

strong sentiment in favour of the relaxation of the Patria Potestas had become fixed by the time that the

pacification of the world commenced on the establishment of the Empire. The first serious blows at the

ancient institution are attributed to the earlier Caesars, and some isolated interferences of Trajan and Hadrian

seem to have prepared the ground for a series of express enactments which, though we cannot always

determine their dates, we know to have limited the father's powers on the one hand, and on the other to have

multiplied facilities for their voluntary surrender. The older mode of getting rid of the Potestas, by effecting a

triple sale of the son's person, is evidence, I may remark, of a very early feeling against the unnecessary

prolongation of the powers. The rule which declared that the son should be free after having been three times

sold by his father seems to have been originally meant to entail penal consequences on a practice which

revolted even the imperfect morality of the primitive Roman. But even before the publication of the Twelve

Tables it had been turned, by the ingenuity of the jurisconsults, into an expedient for destroying the parental

Many of the causes which helped to mitigate the stringency of the father's power over the persons of his

children are doubtless among those which do not lie upon the face of history. We cannot tell how far public

opinion may have paralysed an authority which the law conferred, or how far natural affection may have

rendered it endurable. But though the powers over the person may have been latterly nominal, the whole

tenour of the extant Roman jurisprudence suggests that the father's rights over the son's property were always

exercised without scruple to the full extent to which they were sanctioned by law. There is nothing to astonish

us in the latitude of these rights when they first show themselves. The ancient law of Rome forbade the

Children under Power to hold property apart from their parent, or (we should rather say) never contemplated

the possibility of their claiming a separate ownership. The father was entitled to take the whole of the son's

acquisitions, and to enjoy the benefit of his contracts; without being entangled in any compensating liability.

So much as this we should expect from the constitution of the earliest Roman society, for we can hardly form

a notion of the primitive family group unless we suppose that its members brought their earnings of all kinds

into the common stock while they were unable to bind it by improvident individual engagements. The true

enigma of the Patria Potestas does not reside here, but in the slowness with which these proprietary privileges

of the parent were curtailed, and in the circumstance that, before they were seriously diminished, the whole

civilised world was brought within their sphere. No innovation of any kind was attempted till the first year of

the Empire, when the acquisitions of soldiers on service were withdrawn from the operation of the Patria

Potestas, doubtless as part of the reward of the armies which had overthrown the free commonwealth. Three

centuries afterwards the same immunity was extended to the earnings of persons who were in the civil

employment of the state. Both changes were obviously limited in their application, and they were so

contrived in technical form as to interfere as little as possible with the principle of Patria Potestas. A certain

qualified and dependent ownership had always been recognised by the Roman law in the perquisites and

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

special name of this permissive property, Peculium, was applied to the acquisitions newly relieved from

Patria Potestas, which were called in the case of soldiers Castrense Peculium, and quasicastrense Peculium

in the case of civil servants. Other modifications of the parental privileges followed, which showed a less

studious outward respect for the ancient principle. Shortly after the introduction of the Quasicastrense

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 lifeinterest. A few more changes of slight

importance followed in the Western Empire, but the furthest point reached was in the East, under Justinian,

who enacted that unless the acquisitions of the child were derived from the parent's own property, the parent's

rights over them should not extend beyond enjoying their produce for the period of his life. Even this, the

utmost relaxation of the Roman Patria Potestas, left it far ampler and severer than any analogous institution of

the modern world. The earliest modern writers on jurisprudence remark that it was only the fiercer and ruder

of the conquerors of the empire, and notably the nations of Sclavonic origin, which exhibited a Patria Potestas

at all resembling that which was described in the Pandects and the Code. All the Germanic immigrants seem

to have recognised a corporate union of the family under the mund, or authority of a patriarchal chief; but his

powers are obviously only the relic of a decayed Patria Potestas, and fell far short of those enjoyed by the

Roman father. The Franks are particularly mentioned as not having the Roman Institution, and accordingly

the old French lawyers, even when most busily engaged in filling the interstices of barbarous custom with

rules of Roman law, were obliged to protect themselves against the intrusion of the Potestas by the express

maxim, Puyssance de pere en France n'a lieu. The tenacity of the Rowans in maintaining this relic of their

most ancient condition is in itself remarkable, but it is less remarkable than the diffusion of the Potestas over

the whole of a civilisation from which it had once disappeared. While the Castrense Peculium constituted as

yet the sole exception to the father's power over property, and while his power over his children's persons was

still extensive, the Roman citizenship, and with it the Patria Potestas,were spreading into every corner of the

empire. Every African or Spaniard, every Gaul, Briton, or Jew, who received this honour by gift, purchase, or

inheritance, placed himself under the Roman Law of Persons, and, though our authorities intimate that

children born before the acquisition of citizenship could not be brought under Power against their will,

children born after it and all ulterior descendants were on the ordinary footing of a Roman filius familias. It

does not fall within the province of this treatise to examine the mechanism of the later Roman society but I

may be permitted to remark that there is little, foundation for the opinion which represents the constitution of

Antoninus Caracalla conferring Roman citizenship on the whole of his subjects as a measure of small

importance. However we may interpret it, it must have enormously enlarged the sphere of the Patria Potestas,

and it seems to me that the tightening of family relations which it effected is an agency which ought to be

kept in view more than it has been, in accounting for the great moral revolution which was transforming the

Before this branch of our subject is dismissed, it should be observed that the Paterfamilias was answerable for

the delicts (or torts) of his Sons under Power. He was similarly liable for the torts of his slaves; but in both

cases he originally possessed the singular privilege of tendering the delinquent's person in full satisfaction of

the damage. The responsibility thus incurred on behalf of sons, coupled with the mutual incapacity of parent

and Child under Power to sue one another, has seemed to some jurists to be best explained by the assumption

of a "unity of person" between the Paterfamilias and the Filiusfamilias. In the chapter on Successions I shall

attempt to show in what sense, and to what extent, this "unity" can be accepted as a reality. I can only say at

present that these responsibilities of the Paterfamilias, and other legal phenomena which will be discussed

hereafter, appear to me to point at certain duties of the primitive Patriarchal chieftain which balanced his

rights. I conceive that, if he disposed absolutely of the persons and fortune of his clansmen, this

representative ownership was coextensive with a liability to provide for all members of the brotherhood out

of the common fund. The difficulty is to throw ourselves out of our habitual associations sufficiently for

conceiving the nature of his obligation. It was not a legal duty, for law had not yet penetrated into the precinct

of the Family. To call it moral is perhaps to anticipate the ideas belonging to a later stage of mental

development; but the expression "moral obligation" is significant enough for our purpose, if we understand

by it a duty semiconsciously followed and enforced rather by instinct and habit than by definite sanctions.

The Patria Potestas, in its normal shape, has not been, and, as it seems to me, could not have been, a generally

durable institution. The proof of its former universality is therefore incomplete so long as we consider it by

itself; but the demonstration may be carried much further by examining other departments of ancient law

which depend on it ultimately, but not by a thread of connexion visible in all its parts or to all eyes. Let us

turn for example to Kinship, or in other words, to the scale on which the proximity of relatives to each other

is calculated in archaic jurisprudence. Here again it will be convenient to employ the Roman terms, Agnatic

and Cognatic relationship. Cognatic relationship is simply the inception of kinship familiar to modern ideas;

it is the relationship arising through common descent from the same pair of married persons, whether the

descent be traced through males or females. Agnatic relationship is something very different : it excludes a

number of persons whom we in our day should certainly consider of kin to ourselves, and it includes many

more whom we should never reckon among our kindred. It is in truth the connexion existing between the

member of the Family, conceived as it was in the most ancient times. The limits of this connexion are far

Cognates then are all those persons who can.trace their. blood to a single ancestor and ancestress; or, if we

take the strict technical meaning of the word in Roman law, they are all who trace their blood to the

legitimate marriage of a common pair. "Cognation" is therefore a relative term, and the degree of connexion

in blood which it indicates depends on the particular marriage which is selected as the commencement of the

calculation. If we begin with the marriage of father and mother, Cognation will only express the relationship

of brothers and sisters; if we take that of the grandfather and grandmother, then uncles, aunts, and their

descendants will also be included in the notion of Cognation, and following the same process a larger number

of Cognates may be continually obtained by choosing the starting point 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 trade their connexion exclusively through males. A table of Cognates is, of course, formed by

taking each lineal ancestor in turn and including all his descendants of both sexes in the tabular view; if then,

in tracing the various branches of such a genealogical table or tree, we stop whenever we come to the name of

a female and pursue that particular branch or ramification no further, all who remain after the descendants of

women have been excluded are Agnates, and their connexion 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 familia" a woman is the terminus of the family. A female name

closes the branch or twig of the genealogy in which it occur. None of the descendants of a female are

If the system of archaic law at which we are looking be one which admits Adoption, we must add to the

Agnate thus obtained all persons, male or female, who have been brought into the Family by the artificial

extension of its boundaries. But the descendants of such persons will only be Agnates, if they satisfy the

What then is the reason of this arbitrary inclusion and exclusion? Why should a conception of Kinship, so

elastic as to include stranger brought into the family by adoption, be nevertheless so narrow as to shut out the

descendants of a female member? To solve these questions, we must recur to the Patria Potestas. The

foundation of Agnation is not the marriage of Father and Mother, but the authority of the Father. All persons

are Agnatically connected together who are under the same Paternal Power, or who have been under it, or

who might have been under it if their lineal ancestor had lived long enough to exercise his empire. In truth, in

the primitive view, Relationship is exactly limited by Patria Potestas. Where the Potestas begins, Kinship

begins; and therefore adoptive relatives are among the kindred. Where the Potestas ends, Kinship ends; so

that a son emancipated by his father loses all rights of Agnation. And here we have the reason why the

descendants of females are outside the limits of archaic kinship. If a woman died unmarried, she could have

no legitimate descendants. If she married, her children fell under the Patria Potestas, not of her Father, but of

her Husband, and thus were lost to her own family. It is obvious that the organisation of primitive societies

would have been confounded, if men had called themselves relatives of their mother's relatives. The inference

would have been that a person might be subject to two distinct Patriae Potestates; but distinct Patriae

Potestates implied distinct jurisdictions, so that anybody amenable to two of them at the same time would

have lived under two different dispensations. As long as the Family was an imperium in imperio, a

community within the commonwealth, governed by its own institutions of which the parent was the source,

the limitation of relationship to the Agnates was a necessary security against a conflict of laws in the

The Parental Powers proper are extinguished by the death of the Parent, but Agnation is as it were a mould

which retains their imprint after they have ceased to exist. Hence comes the interest of Agnation for the

inquirer into the history of jurisprudence. The Powers themselves are discernible in comparatively few

monuments of ancient law, but Agnatic Relationship, which implies their former existence, is discoverable

almost everywhere. There are few indigenous bodies of law belonging to communities of the IndoEuropean

stock, which do not exhibit peculiarities in the most ancient part of their structure which are clearly referable

to Agnation. In Hindoo law, for example, which is saturated with the primitive notions of family dependency,

kinship is entirely Agnatic, and I am informed that in Hindoo genealogies the names of women are generally

omitted altogether. The same view of relationship pervades so much of the laws of the races who overran the

Roman Empire as appears to have really formed Part of their primitive usage, and we may suspect that it

would have perpetuated itself even more than it has in modern European jurisprudence, if it had not been for

the vast influence of the later Roman law on modern thought. The Praetors early laid hold on Cognation as

the natural form of kinship, and spared no pains in purifying their system from the older conception. Their

ideas have descended to us, but still traces of Agnation are to be seen in many of the modern rules of

succession after death. The exclusion of females and their children from governmental functions, commonly

attributed to the usage of the Salian Franks, has certainly an agnatic origin, being descended from the ancient

German rule of succession to allodial property. In Agnation too is to be sought the explanation of that

extraordinary rule of English Law, only recently repealed, which prohibited brothers of the halfblood from

succeeding to one another's lands. In the Customs of Normandy the rule applies to, by the same mother

uterine brothers only, that is, to brothers but not by the same father; and, limited in this way, it is a strict

deduction from the system of Agnation, under which uterine brothers are no relations at all to one another.

When it was transplanted to England, the English judges, who had no clue to its principle, interpreted it as a

general prohibition against the succession of the halfblood, and extended it to consanguineous brothers, that

is to sons of the same father by different wives. In all the literature which enshrines the pretended philosophy

of law, there is nothing more curious than the pages of elaborate sophistry in which Blackstone attempts to

It may be shown, I think, that the Family, as held together by the Patria Potestas, is the nidus out of which the

entire Law of Persons has germinated. Of all the chapters of that Law the most important is that which is

concerned with the status of Females. It has just been stated that Primitive Jurisprudence, though it does not

allow a Woman to communicate any rights of Agnation to her descendants, includes herself nevertheless in

the Agnatic bond. Indeed, the relation of a female to the family in which she was born is much stricter, closer,

and more durable than that which unites her male kinsmen. We have several times laid down that early law

takes notice of Families only; this is the same thing as saying that it only takes notice of persons exercising

Patria Potestas, and accordingly the only principle on which it enfranchises a son or grandson at the death of

his Parent, is a consideration of the capacity inherent in such son or grandson to become himself the head of a

new family and the root of a new set of Parental Power. But a woman, of course, has no capacity of the kind,

and no title accordingly to the liberation which it confers. There is therefore a peculiar contrivance of archaic

jurisprudence for retaining her in the bondage of the Family for life. This is the institution known to the

oldest Roman law as the Perpetual Tutelage of Women, under which a Female, though relieved from her

Parent's authority by his decease, continues subject through life to her nearest male relations as her

Guardians. Perpetual Guardianship is obviously neither more nor less than an artificial prolongation of the

Patria Potestas, when for other purposes it has been dissolved. In India, the system survives in absolute

completeness, and its operation is so strict that a Hindoo Mother frequently becomes the ward of her own

sons. Even in Europe, the laws of the Scandinavian nations respecting women preserved it until quite

recently. The invaders of the Western Empire had it universally among their indigenous usages, and indeed

their ideas on the subject of Guardianship, in all its forms, were among the most retrogressive of those which

they introduced into the Western world. But from the mature Roman jurisprudence it had entirely

disappeared. We should know almost nothing about it, if we had only the compilations of Justinian to

consult; but the discovery of the manuscript of Gaius discloses it to us at a most interesting epoch, just when

it had fallen into complete discredit and was verging on extinction. The great jurisconsult himself scouts the

popular apology offered for it in the mental inferiority of the female sex, and a considerable part of his

volume is taken up with descriptions of the numerous expedients, some of them displaying extraordinary

ingenuity, which the Roman lawyers had devised for enabling Women to defeat the ancient rules. Led by

their theory of Natural Law, the jurisconsults had evidently at this time assumed the equality of the sexes as a

principle of their code of equity. The restrictions which they attacked were, it is to be observed, restrictions

on the disposition of property, for which the assent of the woman's guardians was still formally required.

Ancient Law subordinates the woman to her bloodrelations, while a prime phenomenon of modern

jurisprudence has been her subordination to her husband. The history of the change is remarkable. It begins

far back in the annals of Rome. Anciently, there were three modes in which marriage might be contracted

according to Roman usage, one involving a religious solemnity, the other two the observance of certain

secular formalities. By the religious marriage or Confarreation; by the higher form of civil marriage, which

was called Coemption; and by the lower form, which was termed Usus, the Husband acquired a number of

rights over the person and property of his wife, which were on the whole in excess of such as are conferred

on him in any system of modern jurisprudence. But in what capacity did he acquire them? Not as Husband,

but as Father. By the Confarreation, Coemption, and Usus, the woman passed in manum viri, that is, in law

she became the Daughter of her husband. She was included in his Patria Potestas. She incurred all the

liabilities springing out of it while it subsisted, and surviving it when it had expired. All her property became

absolutely his, and she was retained in tutelage after his death to the guardian whom he had appointed by

will. These three ancient forms of marriage fell, however, gradually into disuse, so that, at the most splendid

period of Roman greatness, they had almost entirely given place to a fashion of wedlock old apparently

but not hitherto considered reputable which was founded on a modification of the lower form of civil

marriage. Without explaining the technical mechanism of the institution now generally popular, I may

describe it as amounting in law to little more than a temporary deposit of the woman by her family. The

rights of the family remained unimpaired, and the lady continued in the tutelage of guardians whom her

parents had appointed and whose privileges of control overrode, in many material respects, the inferior

authority of her husband. The consequence was that the situation of the Roman female, whether married or

unmarried, became one of great personal and proprietary independence, for the tendency of the later law, as I

have already hinted, was to reduce the power of the guardian to a nullity, while the form of marriage in

fashion conferred on the husband no compensating superiority. But Christianity tended somewhat from the

very first to narrow this remarkable liberty. Led at first by justifiable disrelish for the loose practices of the

decaying heathen world, but afterwards hurried on by a passion of asceticism, the professors of the new faith

looked with disfavour on a marital tie which was in fact the laxest the Western world has seen. The latest

Roman law, so far as it is touched by the constitutions of the Christian Emperors, hears some marks of a

reaction against the liberal doctrines of the great Antonine jurisconsults. And the prevalent state of religious

sentiment may explain why it is that modern jurisprudence, forged in the furnace of barbarian conquest, and

formed by the fusion of Roman jurisprudence with patriarchal usage, has absorbed, among its rudiments,

much more than usual of those rules concerning the position of women which belong peculiarly to an

imperfect civilisation. During the troubled era which begins modern history, and while the laws of the

Germanic and Sclavonic immigrants remained superposed like a separate layer above the Roman

jurisprudence of their provincial subjects, the women of the dominant races are seen everywhere under

various forms of archaic guardianship, and the husband who takes a wife from any family except his own

pays a moneyprice to her relations for the tutelage which they surrender to him. When we move onwards,

and the code of the middle ages has been formed by the amalgamation of the two systems, the law relating to

women carries the stamp of its double origin. The principle of the Roman jurisprudence is so far triumphant

that unmarried females are generally (though there are local exceptions to the rule) relieved from the bondage

of the family; but the archaic principle of the barbarians has fixed the position of married women, and the

husband has drawn to himself in his marital character the powers which had once belonged to his wife's male

kindred, the only difference being that he no longer purchases his privileges. At this point therefore the

modern law of Western and Southern Europe begins to be distinguished by one of its chief characteristic, the

comparative freedom it allows to unmarried women and widows, the heavy disabilities it imposes on wives.

It was very long before the subordination entailed on the other sex by marriage was sensibly diminished. The

principal and most powerful solvent of the revived barbarism of Europe was always the codified

jurisprudence of Justinian, wherever it was studied with that passionate enthusiasm which it seldom failed to

awaken. It covertly but most efficaciously undermined the customs which it pretended merely to interpret.

But the Chapter of law relating to married women was for the most part read by the light, not of Roman, but

of Canon Law, which in no one particular departs so widely from the spirit of the secular jurisprudence as in

the view it takes of the relations created by marriage. This was in part inevitable, since no society which

preserves any tincture of Christian institution is likely to restore to married women the personal liberty

conferred on them by the middle Roman law, but the proprietary disabilities of married females stand on

quite a different basis from their personal incapacities, and it is by keeping alive and consolidating the former

that the expositors of the Canon Law have deeply injured civilisation. There are many vestiges of a struggle

between the secular and ecclesiastical principles, but the Canon Law nearly everywhere prevailed. In some of

the French provinces married women, of a rank below nobility, obtained all the powers of dealing with

property which Roman jurisprudence had allowed, and this local law has been largely followed by the Code

Napoleon; but the state of the Scottish law shows that scrupulous deference to the doctrines of the Roman

jurisconsults did not always extend to mitigating the disabilities of wives. The systems however which are

least indulgent to married women are invariably those which have followed the Canon Law exclusively, or

those which, from the lateness of their contact with European civilisation, have never had their archaisms

weeded out. The Scandinavian laws, harsh till lately to all females, are still remarkable for their severity to

wives. And scarcely less stringent in the proprietary incapacities it imposes is the English Common Law,

which borrows far the greatest number of its fundamental principles from the jurisprudence of the Canonists.

Indeed, the part of the Common Law which prescribes the legal situation of married women may serve to

give an Englishman clear notions of the great institution which has been the principal subject of this chapter. I

do not know how the operation and nature of the ancient Patria Potestas can be brought so vividly before the

mind as by reflecting on the prerogatives attached to the husband by the pure English Common Law, and by

recalling the rigorous consistency with which the view of a complete legal subjection on the part of the wife

is carried by it, where it is untouched by equity or statutes, through every department of rights, duties, and

remedies. The distance between the eldest and latest Roman law on the subject of Children under Power may

be considered as equivalent to the difference between the Common Law and the jurisprudence of the Court of

If we were to lose sight of the true origin of Guardianship in both its forms and were to employ the common

language on these topics, we should find ourselves remarking that, while the Tutelage of Women is an

instance in which systems of archaic law push to an extravagant length the fiction of suspended rights, the

rules which they lay down for the Guardianship of Male Orphans are an example of a fault in precisely the

opposite direction. All such systems terminate the Tutelage of males at an extraordinary early period. Under

the ancient Roman law which may be taken as their type, the son who was delivered from Patria Potestas by

the death of his Father or Grandfather remained under guardianship till an epoch which for general purposes

may be described as arriving with his fifteenth year,. but the arrival of that epoch placed him at once in the

full enjoyment of personal and proprietary independence. The period of minority appears therefore to have

been as unreasonably short as the duration of the disabilities of women was preposterously long. But, in point

of fact, there was no element either of excess or of shortcoming in the circumstances which gave their

original form to the two kinds of guardianship. Neither the one nor the other of them was based on the

slightest consideration of public or private convenience. The guardianship of male orphans was no more

desired originally to shield them till the arrival of years of discretion than the tutelage of women was intended

to protect the other sex against its own feebleness. The reason why the death of the father delivered the son

from the bondage of the family was the son's capacity for becoming himself the head of a new family and the

founder of a new Patria Potestas; no such capacity was possessed by the woman and therefore she was never

enfranchised. Accordingly the Guardianship of Male Orphans was a contrivance for keeping alive the

semblance of subordination to the family of the Parent, up to the time when the child was supposed capable

of becoming a parent himself. It was a prolongation of the Patria Potestas up to the period of bare physical

manhood. It ended with puberty, for the rigour of the theory demanded that it should do so. Inasmuch,

however, as it did not profess to conduct the orphan ward to the age of intellectual maturity or fitness for

affairs, it was quite unequal to the purposes of general convenience; and this the Romans seem to have

discovered at a very early stage of their social progress. One of the very oldest monuments of Roman

legislation is the Lex Laetoria or Plaetoria 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 twentysixth year of the young man's age was the limit of this statutory

supervision; and it is exclusively with reference to the age of twentyfive that the terms "majority" and

"minority" are employed in Roman law. Pupilage or wardship in modern jurisprudence had adjusted itself

with tolerable regularity to the simple principle of protection to the immaturity of youth both bodily and

mental. It has its natural termination with years of discretion. But for protection against physical weakness

and for protection against intellectual incapacity, the Romans looked to two different institutions, distinct

both in theory and design. The ideas attendant on both are combined in the modern idea of guardianship.

The Law of Persons contains but one other chapter which can be usefully cited for our present purpose. The

legal rules by which systems of nature jurisprudence regulate the connection of Master and Slave, present no

very distinct traces of the original condition common to ancient societies. But there are reasons for this

exception. There seems to be something in the institution of Slavery which has at all times either shocked or

perplexed mankind, however little habituated to reflection, and however slightly advanced in the cultivation

of its moral instincts. The compunction which ancient communities almost unconsciously experienced

appears to have always resulted in the adoption of some imaginary principle upon which a defence, or at least

a rationale, of slavery could be plausibly founded. Very early in their history the Greeks explained the

institution as grounded on the intellectual inferiority of certain races and their consequent natural aptitude for

the servile condition. The Romans, in a spirit equally characteristic, derived it from a supposed agreement

between the victor and the vanquished in which the first stipulated for the perpetual services of his foe; and

the other gained in consideration the life which he had legitimately forfeited. Such theories were not only

unsound but plainly unequal to the case for which they affected to account. Still they exercised powerful

influence in many ways. They satisfied the conscience of the Master. They perpetuated and probably

increased the debasement of the Slave. And they naturally tended to put out of sight the relation in which

servitude had originally stood to the rest of the domestic system. The relation, though not clearly exhibited, is

casually indicated in many parts of primitive law; and more particularly in the typical system that of

Much industry and some learning have been bestowed in the United States of America on the question

whether the Slave was in the early stages of society a recognised member of the Family There is a sense in

which an affirmative answer must certainly be given. It is clear, from the testimony both of ancient law and

of many primeval histories, that the Slave might under certain conditions be made the Heir, or Universal

Successor, of the Master, and this significant faculty, as I shall. explain in the Chapter on Succession, implies

that the government and representation of the Family might, in a particular state of circumstances, devolve on

the bondman. It seems, however, to be assumed in the American arguments on the subject that, if we allow

Slavery to have been a primitive Family institution, the acknowledgment is pregnant with an admission of the

moral defensibility of Negroservitude at the present moment. What then is meant by saying that the Slave

was originally included in the Family? Not that his situation may not have been the fruit of the coarsest

motives which can actuate man. The simple wish to use the bodily powers of another person as a means of

ministering to one's own ease or pleasure is doubtless the foundation of Slavery, and as old as human nature.

When we speak of the Slave as anciently included in the Family, we intend to assert nothing as to the motives

of those who brought him into it or kept him there; we merely imply that the tie which bound him to his

master was regarded as one of the same general character with that which united every other member of the

group to its chieftain. This consequence is, in fact, carried in the general assertion already made that the

primitive ideas of mankind were unequal to comprehending any basis of the connection inter se of

individuals, apart from the relations of family. The Family consisted primarily of those who belonged to it by

consanguinity. and next of those who had been engrafted on it by adoption; but there was still a third class of

persons who were only joined to it by common subjection to its head, and these were the Slaves. The born

and the adopted subjects of the chief were raised above the Slave by the certainty that in the ordinary course

of events they would be relieved from bondage and entitled to exercise powers of their own; but that the

inferiority of the Slave was not such as to place him outside the pale of the Family, or such as to degrade him

to the footing of inanimate property, is clearly proved, I think, by the many traces which remain of his ancient

capacity for inheritance in the last resort. It would, of course, be unsafe in the highest degree to hazard

conjectures how far the lot of the Slave was mitigated, in the beginnings of society, by having a definite place

reserved to him in the empire of the Father. It is, perhaps, more probable that the son was practically

assimilated to the Slave, than that the Slave shared any of the tenderness which in later times was shown to

the son. But it may be asserted with some confidence of advanced and matured codes that, wherever servitude

is sanctioned, the Slave has uniformly greater advantages under systems which preserve some memento of

his earlier condition than under those which have adopted some other theory of his civil degradation. The

point of view from which jurisprudence regards the Slave is always of great importance to him. The Roman

law was arrested in its growing tendency to look upon him more and more as an article of property by the

theory of the Law of Nature; and hence it is that, wherever servitude is sanctioned by institutions which have

been deeply affected by Roman jurisprudence, the servile condition is never intolerably wretched. There is a

great deal of evidence that in those American States which have taken the highly Romanised code of

Louisiana as the basis of their jurisprudence, the lot and prospects of the negropopulation are better in many

material respects than under institutions founded on the English Common Law, which, as recently

interpreted, has no true place for the Slave, and can only therefore regard him as a chattel.

We have now examined all parts of the ancient Law of Persons which fall within the scope of this treatise,

and the result of the inquiry is, I trust, to give additional definiteness and precision to our view of the infancy

of jurisprudence. The Civil laws of States first make their appearance as the Themistes of a patriarchal

sovereign, and we can now see that these Themistes are probably only a developed form of the irresponsible

commands which, in a still earlier condition of the race, the head of each isolated household may have

addressed to his wives, his children, and his slaves. But, even after the State has been organised, the laws

have still an extremely limited application. Whether they retain their primitive character as Themistes, or

whether they advance to the condition of Customs or Codified Texts, they are binding not on individuals,but

on Families. Ancient jurisprudence, if a perhaps deceptive comparison may be employed, may be likened to

International Law, filling nothing, as it were, excepting the interstices between the great groups which are the

atoms of society. In a community so situated, the legislation of assemblies and the jurisdiction of Courts

reaches only to the heads of families, and to every other individual the rule of conduct is the law of his home,

of which his Parent is the legislator. But the sphere of civil law, small at first, tends steadily to enlarge itself.

The agents of legal change, Fictions, in turn to bear on the Equity, and Legislation, are brought 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 a in matters of state, and are no longer

liable to be overridden by the behests of a despot enthroned by each hearthstone. We have in the annals of

Roman law a nearly complete history of the crumbling away of an archaic system, and of the formation of

new institutions from the recombined materials, institutions some of which descended unimpaired to the

modern world, while others, destroyed or corrupted by contact with barbarism in the dark ages, had again to

be recovered by mankind. When we leave this jurisprudence at the epoch of its final reconstruction by

Justinian, few traces of archaism can be discovered in any part of it except in the single article of the

extensive powers still reserved to the living Parent. Everywhere else principles of convenience, or of

symmetry,or of simplification new principles at any rate have usurped the authority of the jejune

considerations which satisfied the conscience of ancient times. Everywhere a new morality has displaced the

canons of conduct and the reasons of acquiescence which were in unison with the ancient usages, because in

The movement of the progressive societies has been uniform in one respect. Through all its course it has been

distinguished by the gradual dissolution of family dependency and the growth of individual obligation in its

place. The Individual is steadily substituted for the Family, as the unit of which civil laws take account. The

advance has been accomplished at varying rates of celerity, and there are societies not absolutely stationary in

which the collapse of the ancient organisation can only be perceived by careful study of the phenomena they

present. But, whatever its pace, the change has not been subject to reaction or recoil, and apparent

retardations will be found to have been occasioned through the absorption of archaic ideas and customs from

some entirely foreign source. Nor is it difficult to see what is the tie between man and man which replaces by

degrees those forms of reciprocity in rights and duties which have their origin in the Family. It is Contract.

Starting, as from one terminus of history, from a condition of society in which all the relations of Persons are

summed up in the relations of Family, we seem to have steadily moved towards a phase of social order in

which all these relations arise from the free agreement of Individuals. In Western Europe the progress

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

superseded by the contractual relation of the servant to his mater. The status of the Female under Tutelage, if

the tutelage be understood of persons other than her husband, has also ceased to exist; from her coming of

age to her marriage all the relations she may form are relations of contract. So too the status of the Son under

Power has no true place in law of modern European societies. If any civil obligation binds together the Parent

and the child of full age, it is one to which only contract gives its legal validity The apparent exceptions are

exceptions of that stamp which illustrate the rule. The child before years of discretion, the orphan under

guardianship, the adjudged lunatic, have all their capacities and incapacities regulated by the Law of Persons.

But why? The reason is differently expressed in the conventional language of different systems, but in

substance it is stated to the same effect by all. The great majority of Jurists are constant to the principle that

the classes of persons just mentioned are subject to extrinsic control on the single ground that they do not

possess the faculty of forming a judgment on their own interests; in other words, that they are wanting in the

The word Status may be usefully employed to construct a formula expressing the law of progress thus

indicated, which, whatever be its value, seems to me to be sufficiently ascertained. All the forms of Status

taken notice of in the Law of Persons were derived from, and to some extent are still coloured by, the powers

and privileges anciently residing in the Family. If then we employ Status, agreeably with the usage of the best

writers, to signify these personal conditions only, and avoid applying the term to such conditions as are the

immediate or remote result of agreement, we may say that the movement of the progressive societies has

If an attempt were made to demonstrate in England the superiority of the historical method of investigation to

the modes of inquiry concerning Jurisprudence which are in fashion among us, no department of Law would

better serve as an example than Testaments or Wills. Its capabilities it owes to its great length and great

continuity. At the beginning of its history we find ourselves in the very infancy of the social state, surrounded

by conceptions which it requires some effort of mind to realise in their ancient form; while here, at the other

extremity of its line of progress, we are in the midst of legal notions which are nothing more than those same

conceptions disguised by the phraseology and by the habits of thought which belong to modern times, and

exhibiting therefore a difficulty of another kind, the difficulty of believing that ideas which form part of our

everyday mental stock can really stand in need of analysis and examination. The growth of the Law of Wills

between these extreme points can be traced with remarkable distinctness. It was much less interrupted at the

epoch of the birth of feudalism, than the history of most other branches of law. It is, indeed, true that, as

regards all provinces of jurisprudence, the break caused by the division between ancient and modern history,

or in other words by the dissolution of the Roman empire, has been very greatly exaggerated. Indolence has

disinclined many writers to be at the pains of looking for threads of connection entangled and obscured by the

confusions of six troubled centuries, while other inquirer, not naturally deficient in patience and industry,

have been misled by idle pride in the legal system of their country, and by consequent unwillingness to

confess its obligations to the jurisprudence of Rome. But these unfavourable influences have had

comparatively little effect on the province of Testamentary Law. The barbarians were confessedly strangers

to any such conception as that of a Will. The best authorities agree that there is no trace of it in those parts of

their written code 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 privilege of custody and

registration of Testaments which several of the heathen temples had enjoyed; and even thus early it was

almost exclusively to private bequests that the religious foundations owed their temporal possessions. Hence

it is that the decrees of the earliest Provincial Councils perpetually contain anathemas against those who deny

the sanctity of Wills. Here, in England, Church influence was certainly chief among the causes which by

universal acknowledgment have prevented that discontinuity in the history of Testamentary Law, which is

sometimes believed to exist in the history of other provinces of Jurisprudence. The jurisdiction over one class

of Wills was delegated to the Ecclesiastical Courts, which applied to them, though not always intelligently,

the principles of Roman jurisprudence; and, though neither the courts of Common Law nor the Court of

Chancery owned any positive obligation to follow the Ecclesiastical tribunals, they could not escape the

potent influence of a system of settled rules in course of application by their side. The English law of

testamentary succession to personalty has become a modified form of the dispensation under which the

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 prima 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 take effect at death only that it is secret, not known as a

matter of course to persons taking interests under its provisions that it is revocable, i.e. always capable of

being superseded by a new act of testation. Yet I shall be able to show that there was a time when none of

these characteristic belonged to a Will. The Testaments from which our Wills are directly descended at first

took effect immediately on their execution; they were not secret; they were not revocable. Few legal agencies

are, in fact, the fruit of more complex historical agencies than that by which a man's written intentions control

the posthumous disposition of his goods. Testaments very slowly and gradually gathered round them the

qualities I have mentioned; and they did this from causes and under pressure of events which may be called

casual, or which at any rate have no interest for us at present, except so far as they have affected the history

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 characteristic had their origin within historical

memory; at the same time, vestiges of the theory of which the doctrine is an offshoot, linger in forms of

expression which we all of us use and perhaps scarcely know how to dispense with. I may illustrate this by

mentioning a position common in the legal literature of the seventeenth century. The jurists of that period

very commonly assert that the power of Testation itself is of Natural Law, that it is a right conferred by the

Law of Nature. Their teaching, though all persons may not at once see the connection, is in substance

followed by those who affirm that the right of dictating or controlling the posthumous disposal of property is

a necessary or natural consequence of the proprietary rights themselves. And every student of technical

jurisprudence must have come across the same view, clothed in the language of a rather different school,

which, in its rationale of this department of law, treats succession ex testamento as the mode of devolution

which the property of deceased persons ought primarily to follow, and then proceeds to account for

succession ab intestato as the incidental provision of the lawgiver for the discharge of a function which was

only left unperformed through the neglect or misfortune of the deceased proprietor. These opinions are only

expanded forms of the more compendious doctrine that Testamentary disposition is an institution of the Law

of Nature. It is certainly never quite safe to pronounce dogmatically as to the range of association embraced

by modern minds, when they reflect on Nature and her Law. but I believe that most persons, who affirm that

the Testamentary Power is of Natural Law may be taken to imply either that, as a matter of fact, it is

universal, or that nations are prompted to sanction it by an original instinct and impulse. With respect to the

first of these positions, I think that, when explicitly set forth, it can never be seriously contended for in an age

which has seen the severe restraints imposed on the Testamentary Power by the Code Napoleon, 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 bestascertained 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

The conception of a Will or Testament cannot be considered by itself. It is a member, and not the first, of a

series of conceptions. In itself a Will is simply the instrument by which the intention of the testator is

declared. It must be clear, I think, that before such an instrument takes its turn for discussion, there are

several preliminary points to be examined as, for example, what is it, what sort of right or interest, which

passes from a dead man on his decease? to whom and in what form does it pass? and how came it that the

dead were allowed to control the posthumous disposition of their property? Thrown into technical language,

the dependence of the various conceptions which contribute to the notion of a Will is thus expressed. A Will

or Testament is an instrument by which the devolution of an inheritance is prescribed. Inheritance is a form of

universal succession. A universal succession is a succession to a universitas juris, or university of rights and

duties. Inverting this order we have therefore to inquire what is a universitas juris; what is a universal

succession; what is the form of universal succession which is called an inheritance. And there are also two

further questions, independent to some extent of the points I have mooted, but demanding solution before the

subject of Wills can be exhausted. These are, how came an inheritance to be controlled in any case by the

testator's volition, and what is the nature of the instrument by which it came to be controlled?

The first question relates to the universitas juris; that is, a university (or bundle) of rights and duties. A

universitas juris is a collection of rights and duties united by the single circumstance of their having belonged

at one time to some one person. It is, as it were, the legal clothing of some given individual. It is not formed

by grouping together any rights and any duties. It can only be constituted by taking all the rights and all the

duties of a particular person. The tie which so connects a number of rights of property, rights of way, rights to

legacies, duties of specific performance, debts, obligations to compensate wrongs which so connects all

these legal privileges and duties together as to constitute them a universitas juris, is the fact of their having

attached to some individual capable of exercising them. Without this fact there is no university of rights and

duties. The expression universitas juris is not classical, but for the notion jurisprudence is exclusively

indebted to Roman law; nor is it at all difficult to seize. We must endeavour to collect under one conception

the whole set of legal relations in which each one of us stands to the rest of the world. These, whatever be

their character and composition, make up together a universitas juris; and there is but little danger of mistake

in forming the notion, if we are only careful to remember that duties enter into it quite as much as rights. Our

duties may overbalance our rights. A man may owe more than he is worth, and therefore if a money value is

set on his collective legal relations he may be what is called insolvent. But for all that the entire group of

We come next to a "universal succession." A universal succession is a succession to a universitas juris. It

occurs when one man is invested with the legal clothing of another, becoming at the same moment subject to

all his liabilities and entitled to all his rights. In order that the universal succession may be true and perfect,

the devolution must take place uno ictu, as the jurists phrase it. It is of course possible to conceive one man

acquiring the whole of the rights and duties of another at different periods, as for example by successive

purchases; or he might acquire them in different capacities, part as heir, part as purchaser, part as legatee. But

though the group of rights and duties thus made up should in fact amount to the whole legal personality of a

particular individual, the acquisition would not be a universal succession. In order that there may be a true

universal succession, the transmission must be such as to pass the whole aggregate of rights and duties at the

same moment and in virtue of the same legal capacity in the recipient. The notion of a universal succession,

like that of a juris universitas, is permanent in jurisprudence, though in the English legal system it is obscured

by the great variety of capacities in which rights are acquired, and, above all, by the distinction between the

two great provinces of English property "realty" and "personalty." The succession of an assignee in

bankruptcy to the entire property of the bankrupt is, however, a universal succession, though as the assignee

only pays debts to the extent of the assets, this is only a modified form of the primary notion. Were it

common among us for persons to take assignments of all a man's property on condition of paying all his

debts, such transfers would exactly resemble the universal successions known to the oldest Roman Law.

When a Roman citizen adrogated a son, i.e. took a man, not already under Patria Potestas, as his adoptive

child, he succeeded universally to the adoptive child's estate, i.e. he took all the property and became liable

for all the obligations. Several other forms of universal succession appear in the primitive Roman Law, but

infinitely the most important and the most durable of all was that one with which we are more immediately

concerned, Hareditas or Inheritance. Inheritance was a universal succession occurring at a death. The

universal successor was Hares or Heir. He stepped at once into all the rights and all the duties of the dead

man. He was instantly clothed with his entire legal person, and I need scarcely add that the special character

of the Hares remained the same, whether he was named by a Will or whether he took on an Intestacy. The

term Hares is no more emphatically used of the Intestate than of the Testamentary Heir, for the manner in

which a man became Hares had nothing to do with the legal character he sustained. The dead man's universal

successor, however he became so, whether by Will or by Intestacy, was his Heir. But the Heir was not

necessarily a single person. A group of persons considered in law as a single unit, might succeed as coheirs

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. Haereditas 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 Coheirs, in whom his identity (so far as the law was concerned) was continued. Our own law, in

constituting the Executor or Administrator the representative of the deceased to the extent of his personal

assets, may serve as an illustration of the theory from which it emanated, but, although it illustrates, it does

not explain it. The view of even the later Roman Law required a closeness of correspondence between the

position of the deceased and of his Heir which is no feature of an English representation; and in the primitive

jurisprudence everything turned on the continuity of succession. Unless provision was made in the will for

the instant devolution of the testator's rights and duties on the Heir or Coheir, the testament lost all its effect.

In modern Testamentary jurisprudence, as in the later Roman law, the object of first importance is the

execution of the testator's intentions. In the ancient law of Rome the subject of corresponding carefulness was

the bestowal of the Universal Succession. One of these rules seems to our eyes a principle dictated by

common sense, while the other looks very much like an idle crotchet. Yet that without the second of them the

first would never have come into being is as certain as any proposition of the kind can be.

In order to solve this apparent paradox, and to bring into greater clearness the train of ideas which I have been

endeavouring to indicate, I must borrow the results of the inquiry which was attempted in the earlier portion

of the preceding chapter. We saw one peculiarity invariably distinguishing the infancy of society. Men are

regarded and treated, not as individuals, but always as members of a particular group. Everybody is first a

citizen, and then, as a citizen, he is a member of his order of an aristocracy or a democracy, of an order of

patricians or plebeians; or, in those societies which an unhappy fate has afflicted with a special perversion in

their course of development, of a caste. Next, he is a member of a gens, house, or clan; and lastly he is a

member of his family. This last was the narrowest and most personal relation in which he stood; nor,

paradoxical as it may seem, was he ever regarded as himself, as a distinct individual. His individuality was

swallowed up in his family. I repeat the definition of a primitive society given before. It has for its units, not

individuals, but groups of men united by the reality or the fiction of bloodrelationship.

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 commonwealth of primitive times may be fairly

described as consisting of a number of little despotic governments, each perfectly distinct from the rest, each

absolutely controlled by the prerogative of a single monarch. But though the Patriarch, for we must not yet

call him the Paterfamilias, had rights thus extensive, it is impossible to doubt that he lay under an equal

amplitude of obligations. If he governed the family, it was for its behoof. If he was lord of its possessions, he

held them as trustee for his children and kindred. He had no privilege or position distinct from that conferred

on him by his relation to the petty commonwealth which he governed. The Family, in fact, was a

Corporation; and he was its representative or, we might almost say, its Public officer. He enjoyed rights and

stood under duties, but the rights and the duties were, in the contemplation of his fellowcitizens and in the

eye of the law, quite as much those of the collective body as his own. Let us consider for a moment the effect

which would be produced by the death of such a representative. In the eye of the law, in the view of the civil

magistrate, the demise of the domestic authority would be a perfectly immaterial event. The person

representing the collective body of the family and primarily responsible to municipal jurisdiction would bear

a different name; and that would be all. The rights and obligations which attached to the deceased head of the

house would attach, without breach of continuity, to his successor; for, in point of fact, they would be the

rights and obligations of the family, and the family had the distinctive characteristic of a corporation that

it never died. Creditors would have the same remedies against the new chieftain as against the old, for the

liability being that of the still existing family would be absolutely unchanged. All rights available to the

family would be as available after the demise of the headship as before it except that the Corporation

would be obliged if indeed language so precise and technical can be properly used of these early times

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 Paterfamilias,

and the civil tribunal substituted itself for the domestic forum, nevertheless the whole scheme of rights and

duties administered by the judicial authorities remained shaped by the influence of the obsolete privileges and

coloured in every part by their reflection. There seems. little question that the devolution of the Universitas

Juris, so strenuously insisted upon by the Roman Law as the first condition of a testamentary or intestate

succession, was a feature of the older form of society which men's minds had been unable to dissociate from

the new, though with that newer phase it had no true or proper connection. It seems, in truth, that the

prolongation of a man's legal existence in his heir, or in a group of coheirs, is neither more nor less than a

characteristic of the family transferred by a fiction to the individual. Succession in corporations is necessarily

universal, and the family was a corporation. Corporations never die. The decease of individual members

makes no difference to the collective existence of the aggregate body, and does not in any way affect its legal

incidents, its faculties or liabilities. Now in the idea of a Roman universal succession all these qualities of a

corporation seem to have been transferred to the individual citizen. His physical death is allowed to exercise

no effect on the legal position which he filled, apparently on the principle that that position is to be adjusted

as closely as possible to the analogies of a family, which, in its corporate character, was not of course liable

I observe that not a few continental jurists have much difficulty in comprehending the nature of the

connection between the conceptions blended in a universal succession, and there is perhaps no topic in the

philosophy of jurisprudence on which their speculations, as a general rule, possess so little value. But the

student of English law ought to be in no danger of stumbling at the analysis of the idea which we are

examining. Much light is cast upon it by a fiction in our own system with which all lawyers are familiar.

English lawyers classify corporations as Corporations aggregate and Corporations sole. A Corporation

aggregate is a true Corporation, but a Corporation sole is an individual, being a member of a series of

individuals, who is invested by a fiction with the qualities of a Corporation. I need hardly cite the King or the

Parson of a Parish as instances of Corporations sole. The capacity or office is here considered apart from the

particular person who from time to time may occupy it, and, this capacity being perpetual, the series of

individuals who fill it are clothed with the leading attribute of CorporationsPerpetuity. Now in the older

theory of Roman Law the individual bore to the family precisely the same relation which in the rationale of

English jurisprudence a Corporation sole bears to a Corporation aggregate. The derivation and association of

ideas are exactly the same. In fact, if we say to ourselves that for purposes of Roman Testamentary

Jurisprudence each individual citizen was a Corporation sole, we shall not only realise the full conception of

an inheritance, but have constantly at command the clue to the assumption in which it originated. It is an

axiom with us that the King never dies, being a Corporation sole. His capacities are instantly filled by his

successor, and the continuity of dominion is not deemed to have been interrupted. With the Romans it

seemed an equally simple and natural process, to eliminate the fact of death from the devolution of rights and

obligations. The testator lived on in his heir or in the group of his coheir. He was in law the same person

with them, and if any one in his testamentary dispositions had even constructively violated the principle

which united his actual and his posthumous existence, the law rejected the defective instrument, and gave the

inheritance to the kindred in blood, whose capacity to fulfil the conditions of heirship was conferred on them

by the law itself, and not by any document which by possibility might be erroneously framed.

When a Roman citizen died intestate or leaving no valid Will, his descendants or kindred became his heirs

according to a scale which will be presently described. The person or class of persons who succeeded did not

simply represent the deceased, but, in conformity with the theory just delineated, they continued his civil life,

his legal existence. The same results followed when the order of succession was determined by a Will, but the

theory of the identity between the dead man and his heirs was certainly much older than any form of

Testament or phase of Testamentary jurisprudence. This indeed is the proper moment for suggesting a doubt

which will press on us with greater force the further we plumb the depths of this subject, whether wills

would ever have come into being at all if it had not been for these remarkable ideas connected with universal

succession. Testamentary law is the application of a principle which may be explained on a variety of

philosophical hypotheses as plausible as they are gratuitous: it is interwoven with every part of modern

society, and it is defensible on the broadest grounds of general expediency. But the warning can never be too

often repeated, that the grand source of mistake in questions of jurisprudence is the impression that those

reasons which actuate us at the present moment, in the maintenance of an existing institution, have

necessarily anything in common with the sentiment in which the institution originated. It is certain that, in the

old Roman Law of Inheritance, the notion of a will or testament is inextricably mixed up, I might almost say

confounded, with the theory of a man's posthumous existence in the person of his heir.

The conception of a universal succession, firmly as it has taken root in jurisprudence, has not occurred

spontaneously to the framers of every body of laws. Wherever it is now found, it may be shown to have

descended from Roman law; and with it have come down a host of legal rules on the subject of Testaments

and.Testamentary gifts, which modern practitioners apply without discerning their relation to the parent

theory. But, in the pure Roman jurisprudence, the principle that a man lives on in his Heir the elimination,

if we may so speak, of the fact of death is too obviously for mistake the centre round which the whole

Law of Testamentary and Intestate succession is circling. The unflinching sternness of the Roman law in

enforcing compliance with the governing theory would in itself suggest that the theory grew out of something

in the primitive constitution of Roman society; but we may push the proof a good way beyond the

presumption. It happens that several technical expressions, dating from the earliest institution of Wills at

Rome, have been accidentally preserved to us. We have in Gaius the formula of investiture by which the

universal successor was created. We have the ancient name by which the person afterwards called Heir was at

first designated. We have further the text of the celebrated clause in the Twelve Tables by which the

Testamentary power was expressly recognised, and the clauses regulating Intestate Succession have also been

preserved. All these archaic phrases have one salient peculiarity. They indicate that what passed from the

Testator to the Heir was the Family, that is, the aggregate of rights and duties contained in the Patria Potestas

and growing out of it. The material property is in three instances not mentioned at all; in two others, it is

visibly named as an adjunct or appendage of the Family. The original Will or Testament was therefore an

instrument, or (for it was probably not at first in writing) a proceeding, by which the devolution of the Family

was regulated. It was a mode of declaring who was to have the chieftainship, in succession to the Testator.

When Wills are understood to have this for their original object, we see at once how it is that they came to be

connected with one of the most curious relics of ancient religion and law, the sacra, or Family Rites. These

sacra were the Roman form of an institution which shows itself wherever society has not wholly shaken itself

free from its primitive clothing. They are the sacrifices and ceremonies by which the brotherhood of the

family is commemorated, the pledge and the witness of its perpetuity. Whatever be their nature, whether it

be true or not that in all cases they are the worship of some mythical ancestor, they are everywhere

employed to attest the sacredness of the familyrelation; 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 coextensive with the duty of performing his

obsequies. If the rites are not properly performed or not performed by the proper person, no relation is

considered as established between the deceased and anybody surviving him; the Law of Succession does not

apply, and nobody can inherit the property. Every great event in the life of a Hindoo seems to be regarded as

leading up to and bearing upon those solemnities. If he marries, it is to have children who may celebrate them

after his death; if he has no children, he lies under the strongest obligation to adopt them from another family,

"with a view," writes the Hindoo doctor, "to the funeral cake, the water, and the solemn sacrifice." The sphere

preserved to the Roman sacra in the time of Cicero, was not less in extent. It embraced Inheritances and

Adoptions. No Adoption was allowed to take place without due provision for the sacra of the family from

which the adoptive son was transferred, and no Testament was allowed to distribute an Inheritance without a

strict apportionment of the expenses of these ceremonies among the different coheirs. The differences

between the Roman law at this epoch, when we obtain our last glimpse of the sacra, and the existing Hindoo

system, are most instructive. Among the Hindoos, the religious element in law has acquired a complete

predominance. Family sacrifices have become the keystone of all the Law of Persons and much of the Law of

Things. They have even received a monstrous extension, for it is a plausible opinion that the selfimmolation

of the widow at her husband's funeral, a practice continued to historical times by the Hindoos, and

commemorated in the traditions of several IndoEuropean races, was an addition grafted on the primitive

sacra, under the influence of the impression, which always accompanies the idea of sacrifice, that human

blood is the most precious of all oblations. With the Romans, on the contra, the legal obligation and the

religious duty have ceased to be blended. The necessity of solemnising the sacra forms no part of the theory

of civil law but they are under the separate jurisdiction of the College of Pontiffs. The letters of Cicero to

Atticus, which are full of allusions to them, leave no doubt that they constituted an intolerable burden on

Inheritances; but the point of development at which law breaks away from religion has been passed, and we

In Hindoo law there is no such thing as a true Will. The place filled by Wills is occupied by Adoptions. We

can now see the relation of the Testamentary Power to the Faculty of Adoption, and the reason why the

exercise of either of them could call up a peculiar solicitude for the performance of the sacra. Both a Will and

an Adoption threaten a distortion of the ordinary course of Family descent, but they are obviously

contrivances for preventing the descent being wholly interrupted, when there is no succession of kindred to

carry it on. Of the two expedients Adoption, the factitious creation of bloodrelationship, 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 preeminently the credit of inventing the Will, the institution which, next to the

Contract, has exercised the greatest influence in transforming human society. We must be careful not to

attribute to it in its earliest shape the functions which have attended it in more recent times. It was at first, not

a mode of distributing a dead man's goods, but one among several ways of transferring the representation of

the household to a new chief. The goods descend no doubt to the Heir, but that is only because the

government of the family carries with it in its devolution the power of disposing of the common stock. We

are very far as yet from that stage in the history of Wills in which they become powerful instruments in

modifying society through the stimulus they give to the circulation of property and the plasticity they produce

in proprietary rights. No such consequences as these appear in fact to have been associated with the

Testamentary power even by the latest Roman lawyer. 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 willmaking were extremely different from those familiar to us nowadays.

The habit of regarding Adoption and Testation as modes of continuing the Family cannot but have had

something to do with the singular laxity of Roman notions as to the inheritance of sovereignty It is impossible

not to see that the succession of the early Roman Emperors to each other was considered reasonably regular,

and that, in spite of all that had occurred, no absurdity attached to the pretension of such Princes as

When the phenomena of primitive societies emerge into light, it seems impossible to dispute a proposition

which the jurists of the seventeenth century considered doubtful, that Intestate Inheritance is a more ancient

institution than Testamentary Succession. As soon as this is settled, a question of much interest suggests

itself, how and under what conditions were the directions of a will first allowed to regulate the devolution of

authority over the household, and consequently the posthumous distribution of property. The difficulty of

deciding the point arises from the rarity of Testamentary power in archaic communities. It is doubtful

whether a true power of testation was known to any original society except the Roman. Rudimentary forms of

it occur here and there, but most of them are not exempt from the suspicion of a Roman origin. The Athenian

will was, no doubt, indigenous, but then, as will appear presently, it was only an inchoate Testament. As to

the Wills which are sanctioned by the bodies of law which have descended to us as the codes of the barbarian

conquerors of Imperial Rome, they are almost certainly Roman. The most penetrating German criticism has

recently been directed to these leges Barbarorum, the great object of investigation being to detach those

portions of each system which formed the customs of the tribe in its original home from the adventitious

ingredients which were borrowed from the laws of the Romans. In the course of this process, one result has

invariably disclosed itself, that the ancient nucleus of the code contains no trace of a Will. Whatever

testamentary law exists, has been taken from Roman jurisprudence. Similarly, the rudimentary Testament

which (as I am informed) the Rabbinical Jewish law provides for, has been attributed to contact with the

Romans. The only form of testament, not belonging to a Roman or Hellenic society, which can reasonably be

supposed indigenous, is that recognised by the usages of the province of Bengal; and the testament of Bengal

The evidence, however, such as it is, seems to point to the conclusion that Testaments are at first only

allowed to take effect on failure of the persons entitled to have the inheritance by right of blood genuine or

fictitious. Thus, when Athenian citizens were empowered for the first time by the Laws of Solon to execute

Testaments, they were forbidden to disinherit their direct male descendants. So, too, the Will of Bengal is

only permitted to govern the succession so far as it is consistent with certain overriding claims of the family.

Again, the original institutions of the Jews having provided nowhere for the privileges of Testatorship, the

later Rabbinical jurisprudence, which pretends to supply the casus omissi of the Mosaic law, allows the

Power of Testation to attach when all the kindred entitled under the Mosaic system to succeed have failed or

are undiscoverable. The limitations by which the ancient German codes hedge in the testamentary

jurisprudence which has been incorporated with them are also significant, and point in the same direction. It

is the peculiarity of most of these German laws, in the only shape in which we know them, that, besides the

allod or domain of each household, they recognise several subordinate kinds or orders of property, each of

which probably represents a separate transfusion of Roman principles into the primitive body of Teutonic

usage. The primitive German or allodial property is strictly reserved to the kindred. Not only is it incapable of

being disposed of by testament but it is scarcely capable of being alienated by conveyance inter vivos. The

ancient German law, like the Hindoo jurisprudence, makes the male children coproprietor 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

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

probable explanation of an ascertained fact in the early history of Roman Wills. We have it stated on

abundant authority that Testaments, during the primitive period of the Roman State, were executed in the

Comitia Calata, that is, in the Comitia Curiata, or Parliament of the Patrician Burghers of Rome, when

assembled for Private Business. This mode of execution has been the source of the assertion, handed down by

one generation of civilians to another, that every Will at one era of Roman history was a solemn legislative

enactment. But there is no necessity whatever for resorting to an explanation which has the defect of

attributing far too much precision to the proceedings of the ancient assembly The proper key to the story

concerning the execution of wills in the Comitia Calata must no doubt be sought in the oldest Roman Law of

intestate succession. The canons of primitive Roman jurisprudence regulating the inheritance of relations

from each other were, so long as they remained unmodified by the Edictal Law of the Praetor, to the

following effect: First, the sui or direct descendants who had never been emancipated succeeded. On the

failure of the sui, the Nearest Agnate came into their place, that is, the nearest person or class of the kindred

who was or might have been under the same Patria Potestas with the deceased. The third and last degree

came next, in which the inheritance devolved on the gentiles, that is on the collective members of the dead

man's gens or House. The House, I have explained already, was a fictitious extension of the family,

consisting of all Roman Patrician citizens who bore the same name, and who, on the ground of bearing the

same name, were supposed to be descended from a common ancestor. Now the Patrician Assembly called the

Comitia Curiata was a Legislature in which Gentes or Houses were exclusively represented. It was a

representative assembly of the Roman people, constituted on the assumption that the constituent unit of the

state was the Gens. This being so, the inference seems inevitable, that the cognizance of Wills by the Comitia

was connected with the rights of the Gentiles, and was intended to secure them in their privilege of ultimate

inheritance. The whole apparent anomaly is removed, if we suppose that a Testament could only be made

when the testator had no gentiles discoverable, or when they waived their claims, and that every Testament

was submitted to the General Assembly of the Roman Gentes, in order that those aggrieved by its

dispositions might put their veto upon it if they pleased, or by allowing it to pass might be presumed to have

renounced their reversion. It is possible that on the eve of the publication of the Twelve Tables this vetoing

power may have been greatly curtailed or only occasionally and capriciously exercised. It is much easier,

however, to indicate the meaning ad origin of the jurisdiction confided to the Comitia Calata, than to trace its

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 desired 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

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 Plebeia cannot be a member of a House," was

entirely to exclude the Plebeians from the Comitia Curiata. Some critics have accordingly supposed that a

Plebeian could not have his Will read or recited to the Patrician Assembly, and was thus deprived of

Testamentary privileges altogether. Others have been satisfied to point out the hardships of having to submit

a proposed Will to the unfriendly jurisdiction of an assembly in which the Testator was not represented.

Whatever be the true view, a form of Testament came into use, which has all the characteristics of a

contrivance intended to evade some distasteful obligation. The Will in question was a conveyance inter vivos,

a complete and irrevocable alienation of the Testator's family and substance to the person whom he meant to

be his heir. The strict rules of Roman law must always have permitted such an alienation, but, when the

transaction was intended to have a posthumous effect, there may have been disputes whether it was valid for

Testamentary purposes without the formal assent of the Patricia Parliament. If a difference of opinion existed

on the point between the two classes of the Roman population, it was extinguished, with many other sources

of heartburning, by the great Decemviral compromise. The text of the Twelve Tables is still extant which

says, "Pater familias uti de pecunia tutelave rei suae legassit, ita jus esto" a law which can hardly have had

It is well known to scholars that, centuries after the Patrician Assembly had ceased to be the legislature of the

Roman State, it still continued to hold formal sittings for the convenience of private business. Consequently,

at a period long subsequent to the publication of the Decemviral Law, there is reason to believe that the

Comitia Calata still assembled for the validation of Testaments. Its probable functions may be best indicated

by saying that it was a Court of Registration, with the understanding however that the Wills exhibited were

not enrolled, but simply recited to the members, who were supposed to take note of their tenor and to commit

them to memory. It is very likely that this form of Testament was never reduced to writing at all, but at all

events if the Will had been originally written, the office of the Comitia was certainly confined to hearing it

read aloud, the document being retained afterwards in the custody of the Testator, or deposited under the

safeguard of some religious corporation. This publicity may have been one of the incidents of the Testament

executed in the Comitia Calata which brought it into popular disfavour. In the early years of the Empire the

Comitia still held its meetings, but they seem to have lapsed into the merest form, and few Wills, or none,

It is the ancient Plebeian Will the alternative of the Testament just described which in its remote

effects has deeply modified the civilisation of the modern world. It acquired at Rome all the popularity which

the Testament submitted to the Calata Comitia appears to have lost. The key to all its characteristics lies in its

descent from the mancipium, or ancient Roman conveyance, a proceeding to which we may unhesitatingly

assign the parentage of two great institutions without which modern society can scarcely be supposed capable

of holding together, the Contract and the Will. The mancipium, or as the word would exhibit itself in later

Latinity, the Mancipation, carries us back by its incidents to the infancy of civil society. As it sprang from

times long anterior, if not to the invention, at all events to the popularisation, of the art of writing, gestures,

symbolical acts, and solemn phrases take the place of documentary forms, and a lengthy and intricate

ceremonial is intended to call the attention of the parties to the importance of the transaction, and to impress

it on the memory of the witnesses. The imperfection too of oral, as compared with written, testimony

necessitates the multiplication of the witnesses and assistants beyond what in later times would be reasonable

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

aes 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 familiae emptor, the Purchaser of the Family. The ordinary ceremony of a Mancipation was

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

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 familiae 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

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

as it may be called, differed in its primitive form from a modern will. As it amounted to a conveyance

outandout of the Testator's estate, it was not revocable. There could be no new exercise of a power which

Again, it was not secret. The Familia Emptor, being himself the Heir, knew exactly what his rights were, and

was aware that he was irreversibly entitled to the inheritance; a knowledge which the violences inseparable

from the bestordered ancient society rendered extremely dangerous. But perhaps the most surprising

consequence of this relation of Testaments to Conveyances was the immediate vesting of the inheritance in

the Heir. This has seemed so incredible to not a few civilians, that they have spoken of the Testator's estate as

vesting conditionally on the Testator's death or as granted to him from a time uncertain, i.e. the death of the

grantor. But down to the latest period of Roman jurisprudence there was a certain class of transactions which

never admitted of being directly modified by a condition, or of being limited to or from a point of time. In

technical language they did not admit conditio or dies. Mancipation was one of them, and therefore, strange

as it may seem, we are forced to conclude that the primitive Roman Will took effect at once, even though the

Testator survived his act of Testation. It is indeed likely that Roman citizens originally made their Wills only

in the article of death, and that a provision for the continuance of the Family effected by a man in the flower

of life would take the form rather of an Adoption than of a Will. Still we must believe that, if the Testator did

recover, he could only continue to govern his household by the sufferance of his Heir.

Two or three remarks should be made before I explain how these inconveniences were remedied, and how

Testaments came to be invested with the characteristics now universally associated with them. The Testament

was not necessarily written: at first, it seems to have been invariably oral, and, even in later times, the

instrument declaratory of the bequests was only incidentally connected with the Will and formed no essential

part of it. It bore in fact exactly the same relation to the Testament, which the deed leading the uses bore to

the Fines and Recoveries of old English law, or which the charter of feoffment bore to the feoffment itself.

Previously, indeed, to the Twelve Tables, no writing would have been of the slightest use, for the Testator

had no power of giving legacies, and the only persons who could be advantaged by a will were the Heir or

Coheirs. 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

The terms of the expression Emptor familiae demand notice. "Emptor" indicates that the Will was literally a

sale, and the word "familiae," when compared with the phraseology in the Testamentary clause in the Twelve

Tables, leads us to some instructive conclusions. "Familia," in classical Latinity, means always a man's

slaves. Here, however, and generally in the language of ancient Roman law it includes all persons under his

Potestas, and the Testator's material property or substance is understood to pass as an adjunct or appendage of

his household. Turning to the law of the Twelve Tables, it will be seen that it speaks of tutela rei suae, "the

guardianship of his substance," a form of expression which is the exact reverse of the phase just examined.

There does not therefore appear to be any mode of escaping from the conclusion, that, even at an era so

comparatively recent as that of the Decemviral compromise, terms denoting "household" and "property" were

blended in the current phraseology. If a man's household had been spoken of as his property we might have

explained the expression as pointing to the extent of the Patria Potestas, but, as the interchange is reciprocal,

we must allow that the form of speech caries us back to that primeval period in which property is owned by

the family, and the family is governed by the citizen, so that the member of the community do not own their

At an epoch not easy to settle with precision, the Roman Praetors fell into the habit of acting upon

Testaments solemnised in closer conformity with the spirit than the letter of the law. Casual dispensations

became insensibly the established practice, till at length a wholly new form of Will was matured and

regularly engrafted on the Edictal Jurisprudence. The new or Praetorian Testament derived the whole of its

impregnability from the Jus Honorarium or Equity of Rome. The Praetor of some particular year must have

inserted a clause in his inaugural Proclamation declaratory of his intention to sustain all Testaments which

should have been executed with such and such solemnities; and, the reform having been found advantageous,

the article relating to it must have been again introduced by the Praetor's successor, and repeated by the next

in office, till at length it formed a recognised portion of that body of jurisprudence which from these

successive incorporations was styled the Perpetual or Continuous Edict. On examining the conditions of a

valid Praetorian Will they will be plainly seen to have been determined by the requirements of the

Mancipatory Testament, the innovating Praetor having obviously prescribed to himself the retention of the

old formalities just so far as they were warrants of genuineness or securities against fraud. At the execution of

the Mancipatory Testament seven persons had been present besides the Testator. Seven witnesses were

accordingly essential to the Praetorian Will: two of them corresponding to the libripens and familiae emptor,

who were now stripped of their symbolical character, and were merely present for the purpose of supplying

their testimony. No emblematic ceremony was gone through; the Will was merely recited; but then it is

probable (though not absolutely certain) that a written instrument was necessary to perpetuate the evidence of

the Testator's dispositions. At all events, whenever a writing was read or exhibited as a person's last Will, we

know certainly that the Praetorian Court would not Sustain it by special intervention, unless each of the seven

witnesses had severally affixed his seal to the outside. This is the first appearance of sealing in the history of

jurisprudence, considered as a mode of authentication. It is to be observed that the seals of Roman Wills, and

other documents of importance, did not simply serve as the index of the presence or assent of the signatory,

but were literally fastenings which had to be broken before the writing could be inspected.

The Edictal Law would therefore enforce the dispositions of a Testator, when, instead of being symbolised

through the forms of mancipation, they were simply evidenced by the seals of seven witnesses. But it may be

laid down as a general proposition, that the principal qualities of Roman property were incommunicable

except through processes which were supposed to be coeval with the origin of the Civil Law. The Praetor

therefore could not confer an Inheritance on anybody. He could not place the Heir or Coheirs in that very

relation in which the Testator had himself stood to his own rights and obligations. All he could do was to

confer on the person designated as Heir the practical enjoyment of the property bequeathed, and to give the

force of legal acquittances to his payments of the Testator's debts. When he exerted his powers to these ends,

the Praetor was technically said to communicate the Bonorum Possessio. The Heir specially inducted under

these circumstances, or Bonorum Possessor had every proprietary privilege of the Heir by the Civil Law. He

took the profits and he could alienate, but then, for all his remedies for redress against wrong, he must go, as

we should phrase it, not to the Common Law, but to the Equity side of the Praetorian Court. No great chance

of error would be incurred by describing him as having an equitable estate in the inheritance; but then, to

secure ourselves against being deluded by the analogy, we must always recollect that in one year the

Bonorum Possessio was operated upon a principle of Roman Law known as Usucapion, and the Possessor

We know too little of the older law of Civil Process to be able to strike the balance of advantage and

disadvantage between the different classes of remedies supplied by the Praetorian Tribunal. It is certain,

however, that, in spite of its many defects, the Mancipatory Testament by which the universitas juris

devolved at once and unimpaired was never entirely superseded by the new Will; and at a period less bigoted

to antiquarian forms, and perhaps not quite alive to their significance, all the ingenuity of the Jurisconsults

seems to have been expended on the improvement of the more venerable instrument. At the era of Gaius,

which is that of the Antonine Caesars, the great blemishes of the Mancipatory Will had been removed.

Originally, as we have seen, the essential character of the formalities had required that the Heir himself

should be the purchaser of the Family, and the consequence was that he not only instantly acquired a vested

interest in the Testator's Property, but was formally made aware of his rights. But the age of Gaius permitted

some unconcerned person to officiate as Purchaser of the Family. The heir, therefore, was not necessarily

informed of the succession to which he was destined; and Wills thenceforward acquired the property of

secrecy. The substitution of a stranger for the actual Heir in the functions of "Familiae Emptor" had other

ulterior consequences. As soon as it was legalised, a Roman Testament came to consist of two parts or stages

a conveyance, which was a pure form, and a Nuncupatio, or Publication. In this latter passage of the

proceeding, the Testator either orally declared to the assistants the wishes which were to be executed after his

death, or produced a written document in which his wishes were embodied. It was not probably till attention

had been quite drawn off from the imaginary Conveyance, and concentrated on the Nuncupation as the

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 Praetorian law Meantime the ingenuity

of the Jurisconsults effects, in the CommonLaw Will or Mancipatory Testament, the very improvements

which the Praetor 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 Eater Roman Empire employing a form of Will of

which the pedigree is traceable to the Praetorian Testament on one side, and to the Testament "with the

copper and the scales" on the other. Like the Testament of the Praetor, it required no 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 Praetorian Edict, from the Civil Law, and from the

Imperial Constitutions, that Justinian speaks of the Law of Wills in his own day as Jus Tripertitum. The new

Testament thus described is the one generally known as the Roman Will. But it was the Will of the Eastern

Empire only and the researches of Savigny have shown that in Western Europe the old Mancipatory

Testament, with all its apparatus of conveyance, copper, and scales, continued to be the form in use far down

Although there is much in the modern European Law of Wills which is intimately connected with the oldest

rules of Testamentary disposition practised among men, there are nevertheless some important differences

between ancient and modern ideas on the subject of Wills and Successions. Some of the points of difference I

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

Praetor very actively exerted in the same interest; and we are also presented with a new remedy very

anomalous in character and of uncertain origin, called the Querela Inofficiosi Testamenti, "the Plaint of an

Unduteous Will," directed to the reinstatement of the issue in inheritances from which they had been

unjustifiably excluded by a father's Testament. Comparing this condition of the law with the text of the

Twelve Tables which concedes in terms the utmost liberty of Testation, several writers have been tempted to

interweave a good deal of dramatic incident into their history of the Law Testamentary. They tell us of the

boundless license of disinherison in which the heads of families instantly began to indulge, of the scandal and

injury to public morals which the new practices engendered, and of the applause of all good men which

hailed the courage of the Praetor in arresting the progress of paternal depravity. This story, which is not

without some foundation for the principal fact it relates, is often so told as to disclose very serious

misconceptions of the principles of legal history. The Law of the Twelve Tables is to be explained by the

character of the age in which it was enacted. It does not license a tendency which a later era thought itself

bound to counteract, but it proceeds on the assumption that no such tendency exists, or, perhaps we should

say, in ignorance of the possibility of its existence. There is no likelihood that Roman citizens began

immediately to avail themselves freely of the power to disinherit. It is against all reason and sound

appreciation of history to suppose that the yoke of family bondage, still patiently submitted to, as we know,

where its pressure galled most cruelly, would be cast off in the very particular in which its incidence in our

own day is not otherwise than welcome. The Law of the Twelve Tables permitted the execution of

Testaments in the only case in which it was thought possible that they could be executed, viz. on failure of

children and proximate kindred. It did not forbid the disinherison of direct descendants, inasmuch as it did

not legislate against a contingency which no Roman lawgiver of that era could have contemplated. No doubt,

as the offices of family affection progressively lost the aspect of primary personal duties, the disinherison of

children was occasionally attempted. But the interference of the Praetor, so far from being called for by the

universality of the abuse, was doubtless first prompted by the fact that such instances of unnatural caprice

The indications furnished by this part of Roman Testamentary Law are of a very different kind. It is

remarkable that a Will never seems to have been regarded by the Romans as a means of disinheriting a

Family, or of effecting the unequal distribution of a patrimony. The rules of law preventing its being turned to

such a purpose, increase in number and stringency as the jurisprudence unfolds itself; and these rules

correspond doubtless with the abiding sentiment of Roman society, as distinguished from occasional

variations of feeLing in individuals. It would rather seem as if the Testamentary Power were chiefly vaLued

for the assistance it gave in making provision for a Family, and in dividing the inheritance more evenly and

fairly than the Law of Intestate Succession would have divided it. If this be the true reading of the general

sentiment on the point, it explains to some extent the singular horror of Intestacy which always characterised

the Roman. No evil seems to have been considered a heavier visitation than the forfeiture of Testamentary

privileges; no curse appears to have been bitterer than that which imprecated on an enemy that he might die

without a Will. The feeling has no counterpart, or none that is easily recognisable, in the forms of opinion

which exist at the present day. All men at all times will doubtless prefer chalking out the destination of their

substance to having that office performed for them by the law; but the Roman passion for Testacy is

distinguished from the mere desire to indulge caprice by its intensity; and it has of course nothing whatever in

common with that pride of family, exclusively the creation of feudalism, which accumulates one description

of property in the hands of a single representative. It is probable, a priori, that it was something in the rules of

Intestate Succession which caused this vehement preference for the distribution of property under a

Testament over its distribution by law. The difficulty, however, is, that on glancing at the Roman Law of

Intestate Succession, in the form which it wore for many centuries before Justinian shaped it into that scheme

of inheritance which has been almost universally adopted by modern lawgivers, it by no means strikes one as

remarkably unreasonable or inequitable. On the contrary, the distribution it prescribes is so fair and rational,

and differs so Little from that with which modern society has been generally contented, that no reason

suggests itself why it should have been regarded with extraordinary distaste, especially under a jurisprudence

which pared down to a narrow compass the testamentary privileges of persons who had children to provide

for. We should rather have expected that, as in France at this moment, the heads of families would generally

save themselves the troubLe of executing a Will, and allow the Law to do as it pleased with their assets. I

think, however, if we look a little closely at the preJustinianean scale of Intestate Succession, we shall

discover the key to the mystery. The texture of the law consists of two distinct parts. One department of rules

comes from the Jus Civile, the CommonLaw of Rome; the other from the Edict of the Praetor. 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 Praetor interpolates various classes of relatives, of whom the Civil Law took no notice

whatever. Ultimately, the combination of the Edict and of the Civil Law forms a table of succession not

materially different from that which has descended to the generality of modern codes.

The point for recollection is that there must anciently have been a time at which the rules of the Civil Law

determined the scheme of Intestate Succession exclusively, and at which the arrangements of the Edict were

nonexistent, or not consistently carried out. We cannot doubt that, in its infancy, the Praetorian

jurisprudence had to contend with formidable obstructions, and it is more than probable that, long after

popular sentiment and legal opinion had acquiesced in it, the modifications which it periodically introduced

were governed by no certain principles, and fluctuated with the varying bias of successive magistrates. The

rules of Intestate Succession, which the Romans must at this period have practised, account, I think and

more than account for that vehement distaste for an Intestacy to which Roman society during so many

ages remained constant. The order of succession was this : on the death of a citizen, having no will or no

valid will, his Unemancipated children became his Heirs. His emancipated sons had no share in the

inheritance. If he left no direct descendants living at his death, the nearest grade of the Agnatic kindred

succeeded, but no part of the inheritance was given to any relative united (however closely) with the dead

man through female descents. All the other branches of the family were excluded, and the inheritance

escheated to the Gentiles, or entire body of Roman citizens bearing the same name with the deceased. So that

on failing to execute an operative Testament, a Roman of the era under examination left his emancipated

children absolutely without provision, while, on the assumption that he died childless, there was imminent

risk that his possessions would escape from the family altogether, and devolve on a number of persons with

whom he was merely connected by the sacerdotal fiction that assumed all members of the same gens to be

descended from a common ancestor. The prospect of such an issue is in itself a nearly sufficient explanation

of the popular sentiment; but, in point of fact, we shall only half understand it, if we forget that the state of

things I have been describing is likely to have existed at the very moment when Roman society was in the

first stage of its transition from its primitive organisation in detached families. The empire of the father had

indeed received one of the earliest blows directed at it through the recognition of Emancipation as a

legitimate usage, but the law, still considering the Patria Potestas to be the root of family connection,

persevered in looking on the emancipated children as strangers to the rights of Kinship and aliens from the

blood. We cannot, however, for a moment suppose that the limitations of the family imposed by legal

pedantry had their counterpart in the natural affection of parents. Family attachments must still have retained

that nearly inconceivable sanctity and intensity which belonged to them under the Patriarchal system; and, so

little are they likely to have been extinguished by the act of emancipation, that the probabilities are altogether

the other way. It may be unhesitatingly taken for granted that enfranchisement from the father's power was a

demonstration, rather than a severance, of affection a mark of grace and favour accorded to the

bestbeloved and most esteemed of the children. If sons thus honoured above the rest were absolutely

deprived of their heritage by an Intestacy, the reluctance to incur it requires no farther explanation. We might

have assumed a priori that the passion for Testacy was generated by some moral injustice entailed by the

rules of Intestate succession; and here we find them at variance with the very instinct by which early society

was cemented together. It is possible to put all that has been urged in a very succinct form. Every dominant

sentiment of the primitive Romans was entwined with the relations of the family. But what was the Family?

The Law defined it one 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

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

StatuteLaw, 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

FideiCommissa, 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 Praetor should not have

extinguished it. Everybody conversant with the philosophy of opinion is aware that a sentiment by no means

dies out, of necessity, with the passing away of the circumstances which produced it. It may long survive

them; nay, it may afterwards attain to a pitch and climax of intensity which it never attained during their

The view of a Will which regards it as conferring the power of diverting property from the Family, or of

distributing it in such uneven proportions as the fancy or good sense of the Testator may dictate, is not older

than that later portion of the Middle Ages in which Feudalism had completely consolidated itself. When

modern jurisprudence first shows itself in the rough, Wills are rarely allowed to dispose with absolute

freedom of a dead man's assets. Wherever at this period the descent of property was regulated by Will and

over the greater part of Europe moveable or personal property was the subject of Testamentary disposition

the exercise of the Testamentary power was seldom allowed to interfere with the right of the widow to a

definite share, and of the children to certain fixed proportions, of the devolving inheritance. The shares of the

children, as their amount shows, were determined by the authority of Roman law. The provision for the

widow was attributable to the exertions of the Church, which never relaxed its solicitude for the interest of

wives surviving their husbands winning, perhaps, one of the most arduous of its triumphs when, after

exacting for two or three centuries an express promise from the husband at marriage to endow his wife, it at

length succeeded in engrafting the principle of Dower on the Customary Law of all Western Europe.

Curiously enough, the dower of lands proved a more stable institution than the analogous and more ancient

reservation of certain shares of the personal property to the widow and children. A few local customs in

France maintained the right down to the Revolution, and there are traces of similar usages in England; but on

the whole the doctrine prevailed that moveables might be freely disposed of by Will, and, even when the

claims of the widow continued to be respected, the privileges of the children were obliterated from

jurisprudence. We need not hesitate to attribute the change to the influence of Primogeniture. As the Feudal

law of land practically disinherited all the children in favour of one, the equal distribution even of those sorts

of property which might have been equally divided ceased to be viewed as a duty. Testaments were the

principal instruments employed in producing inequality, and in this condition of things originated the shade

of difference which shows itself between the ancient and the modern conception of a Will. But, though the

liberty of bequest, enjoyed through Testaments, was thus an accidental fruit of Feudalism, there is no broader

distinction than that which exists between a system of free Testamentary disposition and a system, like that of

the Feudal landlaw, 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 marriagearrangements, but they almost expelled

Testamentary succession from the law, lest it should be used to defeat their fundamental principle of an equal

distribution of property among children at the parent's death. The result is that they have established a system

of small perpetual entails, which is infinitely nearer akin to the system of feudal Europe than would be a

perfect liberty of bequest. The landlaw of England, "the Herculaneum of Feudalism," is certainly much

more closely allied to the landlaw of the Middle Ages than that of any Continental country, and Wills with

us are frequently used to aid or imitate that preference of the eldest son and his line which is a nearly

universal feature in marriage settlements of real property. But nevertheless feeling and opinion in this country

have been profoundly affected by the practice of free Testamentary disposition; and it appears to me that the

state of sentiment in a great part of French society, on the subject of the conservation of property in families,

is much liker that which prevailed through Europe two or three centuries ago than are the current opinions of

The mention of Primogeniture introduces one of the most difficult problems of historical jurisprudence.

Though I have not paused to explain my expressions, it may have been noticed that I have frequently spoken

of a number of "coheirs" as placed by the Roman Law of Succession on the same footing with a single Heir.

In point of fact, we know of no period of Roman jurisprudence at which the place of the Heir, or Universal

Successor, might not have been taken by a group of coheirs. This group succeeded as a single unit, and the

assets were afterwards divided among them in a separate legal proceeding. When the Succession was ab

intestato, and the group consisted of the children of the deceased, they each took an equal share of the

property; nor, though males had at one time some advantages over females, is there the faintest trace of

Primogeniture. The mode of distribution is the same throughout archaic jurisprudence. It certainly seems that,

when civil society begins and families cease to hold together through a series of generations, the idea which

spontaneously suggests itself is to divide the domain equally among the members of each successive

generation, and to reserve no 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

jointproperty of the father and his sons. It does not, however, appear to have been habitually divided even at

the death of the parent, and in the same Way the possessions of a Hindoo, however divisible theoretically, are

so rarely distributed in fact, that many generations constantly succeed each other without a partition taking

place, and thus the Family in India has a perpetual tendency to expand into the Village Community, under

conditions which I shall hereafter attempt to elucidate. All this points very clearly to the absolutely equal

division of assets among the male children at death as the practice most usual with society at the period when

familydependency 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

Primogeniture did not belong to the Customs which the barbarians practised on their first establishment

within the Roman Empire. It is known to have had its origin in the benefices or beneficiary gifts of the

invading chieftains. These benefices, which were occasionally conferred by the earlier immigrant kings, but

were distributed on a great scale by Charlemagne, were grants of Roman provincial land to be holden by the

beneficiary on condition of military service. The allodial proprietors do not seem to have followed their

sovereign on distant or difficult enterprises, and all the grander expeditions of the Frankish chiefs and of

Charlemagne were accomplished with forces composed of soldiers either personally dependent on the royal

house or compelled to serve it by the tenure of their land. The benefices, however were not at first in any

sense hereditary. They were held, at the pleasure of the grantor, or at most for the life of the grantee; but still,

from the very outset, no effort seems to have been spared by the beneficiaries to enlarge the tenure, and to

continue their lands in their family after death. Through the feebleness of Charlemagne's successors these

attempts were universally successful, and the Benefice gradually transformed itself into the hereditary Fief.

But, though the fiefs were hereditary, they did not necessarily descend to the eldest son. The rules of

succession which they followed were entirely determined by the terms agreed upon between the grantor and

the beneficiary, or imposed by one of them on the weakness of the other. The original tenures were therefore

extremely various; not indeed so capriciously variouS as is sometimes asserted, for all which have hitherto

been described present some combination of the modes of succession familiar to Romans and to barbarians,

but still exceedingly miscellaneous. In some of them, the eldest son and his stock undoubtedly succeeded to

the fief before the others, but such successions, so far from being universal, do not even appear to have been

general. Precisely the same phenomena recur during that more recent transmutation of European society

which entirely substituted the feudal form of property for the domainial (or Roman) and the allodial (or

German). The allods were wholly absorbed by the fiefs. The greater allodial proprietors transformed

themselves into feudal lords by conditional alienations of portions of their land to dependants; the smaller

sought an escape from the oppressions of that terrible time by surrendering their property to some powerful

chieftain, and receiving it back at his hands on condition of service in his wars. Meantime, that vast mass of

the population of Western Europe whose condition was servile or semiservile the Roman and German

personal slaves, the Roman coloni and the German lidi were concurrently absorbed by the feudal

organisation, a few of them assuming a menial relation to the lords, but the greater part receiving land on

terms which in those centuries were considered degrading. The tenures created during this era of universal

infeudation were as various as the conditions which the tenants made with their new chiefs or were forced to

accept from them. As in the case of the benefices, the succession to some, but by no means to all, of the

estates followed the rule of Primogeniture. No sooner, however, has the feudal system prevailed throughout

the West, than it becomes evident that Primogeniture has some great advantage over every other mode of

succession. It spread over Europe with remarkable rapidity, the principal instrument of diffusion being

Family Settlements, the Pactes de Famille of France and HausGesetze of Germany, which universally

stipulated that lands held by knightly service should descend to the eldest son. Ultimately the law resigned

itself to follow inveterate practice, and we find that in all the bodies of Customary Law, which were gradually

built up, the eldest son and stock are preferred in the succession to estates of which the tenure is free and

military. As to lands held by servile tenures (and originally all tenures were servile which bound the tenant to

pay money or bestow manual labour), the system of succession prescribed by custom differed greatly in

different countries and different provinces. The more general rule was that such lands were divided equally at

death among all the children, but still in some instances the eldest son was preferred, in some the youngest.

But Primogeniture usually governed the inheritance of that class of estates, in some respects the most

important of all, which were held by tenures that, like the English Socage, were of later origin than the rest,

The diffusion of Primogeniture is usually accounted for by assigning what are called Feudal reasons for it. It

is asserted that the feudal superior had a better security for the military service he required when the fief

descended to a single person, instead of being distributed among a number on the decease of the last holder.

Without denying that this consideration may partially explain the favour gradually acquired by

Primogeniture, I must point out that Primogeniture became a custom of Europe much more through its

popularity with the tenants than through any advantage it conferred on the lords. For its origin, moreover, the

reason given does not account at all. Nothing in law springs entirely from a sense of convenience. There are

always certain ideas existing antecedently on which the sense of convenience works, and of which it can do

no more than form some new combination; and to find these ideas in the present case is exactly the problem.

A valuable hint is furnished to us from a quarter fruitful of such indications. Although in India the

possessions of a parent are divisible at his death, and may be divisible during his life, among all his male

children in equal shares, and though this principle of the equal distribution of property extends to every part

of the Hindoo institutions, yet wherever public office or political power devolves at the decease of the last

Incumbent, the succession is nearly universally according to the rules of Primogeniture. Sovereignties

descend therefore to the eldest son, and where the affairs of the Village Community, the corporate unit of

Hindoo society, are confided to a single manager, it is generally the eldest son who takes up the

administration at his parent's death. All offices, indeed, in India, tend to become hereditary, and, when their

nature permits it, to vest in the eldest member of the oldest stock. Comparing these Indian successions with

some of the ruder social organisations which have survived in Europe almost to our own day, the conclusion

suggests itself that, when Patriarchal power is not only domestic but political, it is not distributed among all

the issue at the parent's death, but is the birthright of the eldest son. The chieftainship of a Highland clan, for

example, followed the order of Primogeniture. There seems, in truth, to be a form of familydependency 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, familyorganisations, as we know them, are at

most imperia in imperio. But the position of some of them, of the Celtic clans in particular, was sufficiently

near independence within historical times to force on us the conviction that they were once separate imperia,

and that Primogeniture regulated the succession to the chieftainship. It is, however, necessary to be on our

guard against modern associations with the term of law. We are speaking of a familyconnection still closer

and more stringent than any with which we are made acquainted by Hindoo society or ancient Roman law. If

the Roman Paterfamilias was visibly steward of the family possessions, if the Hindoo father is only

jointsharer with his sons, still more emphatically must the true patriarchal chieftain be merely the

The examples of succession by Primogeniture which were found among the Benefices may, therefore, have

been imitated from a system of familygovernment known to the invading races, though not in general use.

Some ruder tribes may have still practised it, or, what is still more probable, society may have been so

slightly removed from its more archaic condition that the minds of some men spontaneously recurred to it,

when they were called upon to settle the rules of inheritance for a new form of property, But there is still the

question, Why did Primogeniture gradually supersede every other principle of succession? The answer, I

think, is, that European society decidedly retrograded during the dissolution of the Carlovingian empire. It

sank a point or two back even from the miserably low degree which it had marked during the early barbarian

monarchies. The great characteristic of the period was the feebleness, or rather the abeyance, of kingly and

therefore of civil authority,. and hence it seems as if, civil society no longer cohering, men universally flung

themselves back on a social organisation older than the beginnings of civil communities. The lord with his

vassals, during the ninth and tenth centuries, may be considered as a patriarchal household, recruited, not as

in the primitive times by Adoption, but by Infeudation; and to such a confederacy, succession by

Primogeniture was a source of strength and durability. So long as the land was kept together on which the

entire organisation rested, it was powerful for defence and attack; to divide the land was to divide the little

society, and voluntarily to invite aggression in an era of universal violence. We may be perfectly certain that

into this preference for Primogeniture there entered no idea of disinheriting the bulk of the children in favour

of one. Everybody would have suffered by the division of the fief. Everybody was a gainer by its

consolidation. The Family grew stronger by the concentration of power in the same hands; nor is it likely that

the lord who was invested with the inheritance had any advantage over his brethren and kinsfolk in

occupations, interests, or indulgences. It would be a singular anachronism to estimate the privileges

succeeded to by the heir of a fief, by the situation in which the eldest son is placed under an English strict

I have said that I regard the early feudal confederacies as descended from an archaic form of the Family, and

as wearing a strong resemblance to it. But then in the ancient world, and in the societies which have not

passed through the crucible of feudalism, the Primogeniture which seems to have prevailed never transformed

itself into the Primogeniture of the later feudal Europe. When the group of kinsmen ceased to be governed

through a series of generations by a hereditary chief, the domain which had been managed for all appears to

have been equally divided among all. Why did this not occur in the feudal world? If during the confusions of

the first feudal period the eldest son held the land for the behoof of the whole family, why was it that when

feudal Europe had consolidated itself, and regular communities were again established, the whole family did

not resume that capacity for equal inheritance which had belonged to Roman and German alike? The key

which unlocks this difficulty has rarely been seized by the writers who occupy themselves in tracing the

genealogy of Feudalism. They perceive the materials of the feudal institutions, but they miss the cement. The

ideas and social forms which contributed to the formation of the system were unquestionably barbarian and

archaic, but, as soon as Courts and lawyers were called in to interpret and define it, the principles of

interpretation which they applied to it were those of the latest Roman jurisprudence, and were therefore

excessively refined and matured. In a patriarchally governed society, the eldest son may succeed to the

government of the Agnatic group, and to the absolute disposal of its property. But he is not therefore a true

proprietor. He has correlative duties not involved in the conception of proprietorship, but quite undefined and

quite incapable of definition. The later Roman jurisprudence, however, like our own law, looked upon

uncontrolled power over property as equivalent to ownership, and did not, and, in fact, could not, take notice

of liabilities of such a kind, that the very conception of them belonged to a period anterior to regular law. The

contact of the refined and the barbarous notion had inevitably for its effect the conversion of the eldest son

into legal proprietor of the inheritance. The clerical and secular lawyers so defined his position from the first;

but it was only by insensible degrees that the younger brother, from participating on equal terms in all the

dangers and enjoyments of his kinsman, sank into the priest, the soldier of fortune, or the hangeron of the

mansion. The legal revolution was identical with that which occurred on a smaller scale, and in quite recent

times, through the greater part of the Highlands of Scotland. When called in to determine the legal powers of

the chieftain over the domains which gave sustenance to the clan, Scottish jurisprudence had long since

passed the point at which it could take notice of the vague limitations on completeness of dominion imposed

by the claims of the clansmen, and it was inevitable therefore that it should convert the patrimony of many

For the sake of simplicity I have called the mode of succession Primogeniture whenever a single son or

descendant succeeds to the authority over a household or society. It is remarkable, however, that in the few

very ancient examples which remain to us of this sort of succession, it is not always the eldest son, in the

sense familiar to us, who takes up the representation, The form of Primogeniture which has spread over

Western Europe has also been perpetuated among the Hindoos, and there is every reason to believe that it is

the normal form. Under it, not only the eldest Son, but the eldest line is always preferred. If the eldest son

fails, his eldest son has precedence not only over brothers but over uncles; and, if he too fails, the same rule is

followed in the next generation. But when the succession is not merely to civil but to political power, a

difficulty may present itself which will appear of greater magnitude according as the cohesion of society is

less perfect. The chieftain who last exercised authority may have outlived his eldest son, and the grandson

who is primarily entitled to succeed may be too young and immature to undertake the actual guidance of the

community, and the administration of its affairs. In such an event, the expedient which suggests itself to the

more settled societies is to place the infant heir under guardianship till he reaches the age of fitness for

government. The guardianship is generally that of the male Agnates; but it is remarkable that the contingency

supposed is one of the rare cases in which ancient societies have consented to the exercise of power by

women, doubtless out of respect to the overshadowing claims of the mother. In India, the widow of a Hindoo

sovereign governs in the name of her infant son, and we cannot but remember that the custom regulating

succession to the throne of France which, whatever be its origin, is doubtless of the highest antiquity

preferred the queenmother to all other claimants for the Regency, at the same time that it rigorously

excluded all females from the throne. There is, however, another mode of obviating the inconvenience

attending the devolution of sovereignty on an infant heir, and it is one which would doubtless occur

spontaneously to rudely organised communities. This is to set aside the infant heir altogether, and confer the

chieftainship on the eldest surviving male of the first generation. The Celtic clanassociations, among the

many phenomena which they have preserved of an age in which civil and political society were not yet even

rudimentarily separated, have brought down this rule of succession to historical times. With them, it seems to

have existed in the form of a positive canon, that, failing the eldest son, his next brother succeeds in priority

to all grandsons, whatever be their age at the moment when the sovereignty devolves. Some writers have

explained the principle by assuming that the Celtic customs took the last chieftain as a sort of root or stock,

and then gave the succession to the descendant who should be least remote from him; the uncle thus being

preferred to the grandson as being nearer to the common root. No objection can be taken to this statement if it

be merely intended as a description of the system of succession; but it would be a serious error to conceive

the men who first adopted the rule as applying a course of reasoning which evidently dates from the time

when feudal schemes of succession begun to be debated among lawyers. The true origin of the preference of

the uncle to the grandson is doubtless a simple calculation on the part of rude men in a rude society that it is

better to be governed by a grown chieftain than by a child, and that the younger son is more likely to have

come to maturity than any of the eldest son's descendants. At the same time, we have some evidence that the

form of Primogeniture with which we are best acquainted is the primary form, in the tradition that the assent

of the clan was asked when an infant heir was passed over in favour of his uncle. There is a tolerably well

Under Mahometan law which has probably preserved an ancient Arabian custom, inheritances of property are

divided equally among sons, the daughter taking a half share; but if any of the children die before the division

of the inheritance, leaving issue behind, these grandchildren are entirely excluded by their uncles and aunts.

Consistently with this principle, the succession, when political authority devolves, is according to the form of

Primogeniture which appears to have obtained among the Celtic societies. In the two great Mahometan

families of the West, the rule is believed to be, that the uncle succeeds to the throne in preference to the

nephew, though the latter be the son of an elder brother; but though this rule has been followed quite recently

in Egypt, I am informed that there is some doubt as to its governing the devolution of the Turkish sovereignty

The policy of the Sultans has in fact hitherto prevented cases for its application from occurring, and it is

possible that their wholesale massacres of their younger brothers may have been perpetuated quite as much in

the interest of their children as for the sake of making away with dangerous competitors for the throne. It is

evident, however, that in polygamous societies the form of Primogeniture will always tend to vary. Many

considerations may constitute a claim on the succession, the rank of the mother, for example, or her degree in

the affections of the father. Accordingly, some of the India Mahometa 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

The Roman Institutional Treatises, after giving their definition of the various forms and modifications of

ownership, proceed to discuss the Natural Modes of Acquiring Property. Those who are unfamiliar with the

history of jurisprudence are not likely to look upon these "natural modes" of acquisition as possessing, at first

sight, either much speculative or much practical interest. The wild animal which is snared or killed by the

hunter, the soil which is added to our field by the imperceptible deposits of a river, the tree which strikes its

roots into our ground, are each said by the Roman lawyers to be acquired by us naturally. The older

jurisconsults had doubtless observed that such acquisitions were universally sanctioned by the usages of the

little societies around them, and thus the lawyers of a later age, finding them classed in the ancient Jus

Gentium, and perceiving them to be of the simplest description, allotted them a place among the ordinances

of Nature. The dignity with which they were invested has gone on increasing in modern times till it is quite

out of proportion to their original importance. Theory has made them its favourite food, and has enabled them

It will be necessary for us to attend to one only among these "natural modes of acquisition," Occupatio or

Occupancy. Occupancy is the advisedly taking possession of that which at the moment is the property of no

man, with the view (adds the technical definition) of acquiring property in it for yourself. The objects which

the Roman lawyers called res nullius things which have not or have never had an owner can only be

ascertained by enumerating them. Among things which never had an owner are wild animals, fishes, wild

fowl, jewels disinterred for the first time, and lands newly discovered or never before cultivated. Among

things which have not an owner are moveables which have been abandoned, lands which have been deserted,

and (an anomalous but most formidable item) the property of an enemy. In all these objects the full rights of

dominion were acquired by the Occupant, who first took possession of them with the intention of keeping

them as his own an intention which, in certain cases, had to be manifested by specific acts. It is not

difficult, I think, to understand the universality which caused the practice of Occupancy to be placed by one

generation of Roman lawyers in the Law common to all Nations, and the simplicity which occasioned its

being attributed by another to the Law of Nature. But for its fortunes in modern legal history we are less

prepared by a priori considerations. The Roman principle of Occupancy, and the rules into which the

jurisconsults expanded it, are the source of all modern International Law on the subject of Capture in War and

of the acquisition of sovereign rights in newly discovered countries. They have also supplied a theory of the

Origin of Property, which is at once the popular theory, and the theory which, in one form or another, is

I have said that the Roman principle of Occupancy has determined the tenor of that chapter of International

Law which is concerned with Capture in War. The Law of Warlike Capture derives its rules from the

assumption that communities are remitted to a state of nature by the outbreak of hostilities, and that, in the

artificial natural condition thus produced, the institution of private property falls into abeyance so far as

concerns the belligerents. As the later writers on the Law of Nature have always been anxious to maintain

that private property was in some sense sanctioned by the system which they were expounding, the

hypothesis that an enemy's property is res nullius has seemed to them perverse and shocking, and they are

careful to stigmatise it as a mere fiction of jurisprudence. But, as soon as the Law of Nature is traced to its

source in the Jus Gentium, we see at once how the goods of an enemy came to be looked upon as nobody's

property, and therefore as capable of being acquired by the first occupant. The idea would occur

spontaneously to persons practising the ancient forms of Warfare, when victory dissolved the organisation of

the conquering army and dismissed the soldiers to indiscriminate plunder. It is probable, however, that

originally it was only moveable property which was thus permitted to be acquired by the Captor. We know on

independent authority that a very different rule prevailed in ancient Italy as to the acquisition of ownership in

the soil of a conquered country, and we may therefore suspect that the application of the principle of

occupancy to land (always a matter of difficulty) dates from the period when the Jus Gentium was becoming

the Code of Nature, and that it is the result of a generalisation effected by the jurisconsults of the golden age.

Their dogmas on the point are preserved in the Pandects of Justinian, and amount to an unqualified assertion

that enemy's property of every sort is res nullius to the other belligerent, and that Occupancy, by which the

Captor makes them his own, is an institution of Natural Law. The rules which International jurisprudence

derives from these positions have sometimes been stigmatised as needlessly indulgent to the ferocity and

cupidity of combatants, but the charge has been made, I think, by persons who are unacquainted with the

history of wars, and who are consequently ignorant how great an exploit it is to command obedience for a

rule of any kind. The Roman principle of Occupancy, when it was admitted into the modern law of Capture in

War, drew with it a number of subordinate canons, limiting and giving precision to its operation, and if the

contests which have been waged since the treatise of Grotius became an authority, are compared with those

of an earlier date, it will be seen that, as soon as the Roman maxims were received, Warfare instantly

assumed a more tolerable complexion. If the Roman law of Occupancy is to be taxed with having had

pernicious influence on any part of the modern Law of Nations, there is another chapter in it which may be

said, with some reason, to have been injuriously affected. In applying to the discovery of new countries the

same principles which the Romans had applied to the finding of a jewel, the Publicists forced into their

service a doctrine altogether unequal to the task expected from it. Elevated into extreme importance by the

discoveries of the great navigator 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 ad prehensio or assumption of sovereign possession.

Moreover, the principle itself, conferring as it did such enormous advantages as the consequence of a piece of

good luck, was instinctively mutinied against by some of the most adventurous nations in Europe, the Dutch,

the English, and the Portuguese. Our own countrymen, without expressly denying the rule of International

Law, never did, in practice, admit the claim of the Spaniards to engross the whole of America south of the

Gulf of Mexico, or that of the King of France to monopolise the valleys of the Ohio and the Mississippi.

From the accession of Elizabeth to the accession of Charles the Second, it cannot be said that there was at any

time thorough peace in the American waters, and the encroachments of the New England Colonists on the

territory of the French King continued for almost a century longer. Bentham was so struck with the confusion

attending the application of the legal principle, that he went out of his way to eulogise the famous Bull of

Pope Alexander the Sixth, dividing the undiscovered countries of the world between the Spaniards and

Portuguese by a line drawn one hundred leagues West of the Azores; and, grotesque as his praises may

appear at first sight, it may be doubted whether the arrangement of Pope Alexander is absurder in principle

than the rule of Public law, which gave half a continent to the monarch whose servants had fulfilled the

conditions required by Roman jurisprudence for the acquisition of property in a valuable object which could

To all who pursue the inquiries which are the subject of this volume Occupancy is preeminently interesting

on the score of the service it has been made to perform for speculative jurisprudence, in furnishing a

supposed explanation of the origin of private property It was once universally believed that the proceeding

implied in Occupancy was identical with the process by which the earth and its fruits, which were at first in

common, became the allowed property of individuals. The course of thought which led to this assumption is

not difficult to understand, if we seize the shade of difference which separates the ancient from the modern

conception of Natural Law. The Roman lawyers had laid down that Occupancy was one of the Natural modes

of acquiring property, and they undoubtedly believed that, were mankind living under the institutions of

Nature, Occupancy would be one of their practices. How far they persuaded themselves that such a condition

of the race had ever existed, is a point, as I have already stated, which their language leaves in much

uncertainty; but they certainly do seem to have made the conjecture, which has at all times possessed much

plausibility, that the institution of property was not so old as the existence of mankind. Modem jurisprudence,

accepting all their dogmas without reservation, went far beyond them in the eager curiosity with which it

dwelt on the supposed state of Nature. Since then it had 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

"The earth," he writes, "and all things therein were the general property of mankind from the immediate gift

of the Creator. Not that the communion of goods seems ever to have been applicable, even in the earliest

ages, to aught but the substance of the thing; nor could be extended to the use of it. For, by the law of nature

and reason he who first began to use it acquired therein a kind of transient property that lasted so long as he

was using it, and no longer; or to speak with greater precision, the right of possession continued for the same

time only that the act of possession lasted. Thus the ground was in common, and no part was the permanent

property of any man in particular; yet whoever was in the occupation of any determined spot of it, for rest, for

shade, or the like, acquired for the time a sort of ownership, from which it would have been unjust and

contrary to the law of nature to have driven him by force, but the instant that he quitted the use of occupation

of it, another might seize it without injustice." He then proceeds to argue that "when mankind increased in

number, it became necessary to entertain conceptions of more permanent dominion, and to appropriate to

individuals not the immediate use only, but the very substance of the thing to be used."

Some ambiguities of expression in this passage lead to the suspicion that Blackstone did not quite understand

the meaning of the proposition which he found in his authorities, that property in the earth's surface was first

acquired, under the law of Nature, by the occupant; but the limitation which designedly or through

misapprehension he has imposed on the theory brings it into a form which it has not infrequently assumed.

Many writers more famous than Blackstone for precision of language have laid down that, in the beginning of

things, Occupancy first gave a right against the world to an exclusive but temporary enjoyment, and that

afterwards this right, while it remained exclusive, became perpetual. Their object in so stating their theory

was to reconcile the doctrine that in the state of Nature res nullius became property through Occupancy, with

the inference which they drew from the Scriptural history that the Patriarchs did not at first permanently

The only criticism which could be directly applied to the theory of Blackstone would consist in inquiring

whether the circumstances which make up his picture of a primitive society are more or less probable than

other incidents which could be imagined with equal readiness. Pursuing this method of examination, we

might fairly ask whether the man who had occupied (Blackstone evidently uses this word with its ordinary

English meaning) a particular spot of ground for rest or shade would be permitted to retain it without

disturbance. The chances surely are that his right to possession would be exactly coextensive with his power

to keep it, and that he would be constantly liable to disturbance by the first comer who coveted the spot and

thought himself strong enough to drive away the possessor. But the truth is that all such cavil at these

positions is perfectly idle from the very baselessness of the positions themselves. What mankind did in the

primitive state may not be a hopeless subject of inquiry, but of their motives for doing it it is impossible to

know anything. These sketches of the plight of human beings in the first ages of the world are effected by

first supposing mankind to be divested of a great part of the circumstances by which they are now

surrounded, and by then assuming that, in the condition thus imagined, they would preserve the same

sentiments and prejudices by which they are now actuated, although, in fact, these sentiments may have

been created and engendered by those very circumstances of which, by the hypothesis, they are to be

There is an aphorism of Savigny which has been sometimes thought to countenance a view of the origin of

property somewhat similar to the theories epitomised by Blackstone. The great German jurist has laid down

that all Property is founded on Adverse Possession ripened by Prescription. It is only with respect to Roman

law that Savigny makes this statement, and before it can fully be appreciated much labour must be expended

in explaining and defining the expressions employed. His meaning will, however, be indicated with sufficient

accuracy if we consider him to assert that, how far soever we carry our inquiry into the ideas of property

received among the Romans, however closely we approach in tracing them to the infancy of law, we can get

no farther than a conception of ownership involving the three elements in the canon Possession,

Adverseness of Possession, that is a holding not permissive or subordinate, but exclusive against the world,

and Prescription, or a period of time during which the Adverse Possession has uninterruptedly continued. It is

exceedingly probable that this maxim might be enunciated with more generality than was allowed to it by its

author, and that no sound or safe conclusion can be looked for from investigations into any system of laws

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

proprietary right. Meantime, so far from bearing out the popular theory of the origin of property, Savigny's

canon is particularly valuable as directing our attention to its weakest point. In the view of Blackstone and

those whom he follows, it was the mode of assuming the exclusive enjoyment which mysteriously affected

the minds of the fathers of our race. But the mystery does not reside here. It is not wonderful that property

began in adverse possession. It is not surprising that the first proprietor should have been the strong man

armed who kept his goods in peace. But why it was that lapse of time created a sentiment of respect for his

possession which is the exact source of the universal reverence of mankind for that which has for a long

period de facto existed are questions really deserving the profoundest examination, but lying far beyond

Before pointing out the quarter in which we may hope to glean some information, scanty and uncertain at

best, concerning the early history of proprietary right, I venture to state my opinion that the popular

impression in reference to the part played by Occupancy in the first stages of civilisation directly reverses the

truth. Occupancy is the advised assumption of physical possession; and the notion that an act of this

description confers a title to "res nullius," so far from being characteristic of very early societies, is in all

probability the growth of a refined jurisprudence and of a settled condition of the laws. It is only when the

rights of property have gained a sanction from long practical inviolability and when the vast majority of the

objects of enjoyment have been subjected to private ownership, that mere possession is allowed to invest the

first possessor with dominion over commodities in which no prior proprietorship has been asserted. The

sentiment in which this doctrine originated is absolutely irreconcilable with that infrequency and uncertainty

of proprietary rights which distinguish the beginnings of civilisation. Its true basis seems to be, not an

instinctive bias towards the institution of Property, but a presumption arising out of the long continuance of

that institution, that everything ought to have an owner. When possession is taken of a "res nullius," that is, of

an object which is not, or has never been, reduced to dominion, the possessor is permitted to become

proprietor from a feeling that all valuable things are naturally the subjects of an exclusive enjoyment, and that

in the given case there is no one to invest with the right of property except the Occupant. The Occupant in

short, becomes the owner, because all things are presumed to be somebody's property and because no one can

be pointed out as having a better right than he to the proprietorship of this particular thing.

Even were there no other objection to the descriptions of mankind in their natural state which we have been

discussing, there is one particular in which they are fatally at variance with the authentic evidence possessed

by us. It will be observed that the acts and motives which these theories suppose are the acts and motives of

Individuals. It is each Individual who for himself subscribes the Social Compact. It is some shifting sandbank

in which the grains are Individual men, that according to the theory of Hobbes is hardened into the social

rock by the wholesome discipline of force. It is an Individual who, in the picture drawn by Blackstone, "is in

the occupation of a determined spot of ground for rest, for shade, or the like." The vice is one which

necessarily afflicts all the theories descended from the Natural Law of the Romans, which differed principally

from their Civil Law in the account which it took of Individuals, and which has rendered precisely its greatest

service to civilisation in enfranchising the individual from the authority of archaic society. But Ancient Law,

it must again be repeated, knows next to nothing of Individuals. It is concerned not with Individuals, but with

Families, not with single human beings, but groups. Even when the law of the State has succeeded in

permeating the small circles of kindred into which it had originally no means of penetrating, the view it takes

of Individuals is curiously different from that taken by jurisprudence in its maturest stage. The life of each

citizen is not regarded as limited by birth and death; it is but a continuation of the existence of his forefathers,

The Roman distinction between the Law of Persons and the Law of Things, which though extremely

convenient is entirely artificial, has evidently done much to divert inquiry on the subject before us from the

true direction. The lessons learned in discussing the Jus Personarum have been forgotten where the Jus

Rerum is reached, and Property, Contract, and Delict, have been considered as if no hints concerning their

original nature were to be gained from the facts ascertained respecting the original condition of Persons. The

futility of this method would be manifest if a system of pure archaic law could be brought before us, and if

the experiment could be tried of applying to it the Roman classifications. It would soon be seen that the

separation of the Law of Persons from that of Things has no meaning in the infancy of law, that the rules

belonging to the two departments are inextricably mingled together, and that the distinctions of the later

jurists are appropriate only to the later jurisprudence. From what has been said in the earlier portions of this

treatise, it will be gathered that there is a strong a priori improbability of our obtaining any clue to the early

history of property, if we confine our notice to the proprietary rights of individuals. It is more than likely that

jointownership, and not separate ownership, is the really archaic institution, and that the forms of property

which will afford us instruction will be those which are associated with the rights of families and of groups of

kindred. The Roman jurisprudence will not here assist in enlightening us, for it is exactly the Roman

jurisprudence which, transformed by the theory of Natural Law, has bequeathed to the moderns the

impression that individual ownership is the normal state of proprietary right, and that ownership in common

by groups of men is only the exception to a general rule. There is, however, one community which will

always be carefully examined by the inquirer who is in quest of any lost institution of primeval society. How

far soever any such institution may have undergone change among the branch of the IndoEuropean family

which has been settled for ages in India, it will seldom be found to have entirely cast aside the shell in which

it was originally reared. It happens that, among the Hindoos, we do find a form of ownership which ought at

once to rivet our attention from its exactly fitting in with the ideas which our studies in the Law of Persons

would lead us to entertain respecting the original condition of property. The Village Community of India is at

once an organised patriarchal society and an assemblage of coproprietors. 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 AngloIndian administration. The Village Community is known to be of immense antiquity.

In whatever direction research has been pushed into Indian history, general or local, it has always found the

Community in existence at the farthest point of its progress. A great number of intelligent and observant

writers, most of whom had no theory of any sort to support concerning its nature and origin, agree in

considering it the least destructible institution of a society which never willingly surrenders any one of its

usages to innovation. Conquests and revolutions seem to have swept over it without disturbing or displacing

it, and the most beneficent systems of government in India have always been those which have recognised it

The mature Roman law, and modern jurisprudence following in its wake, look upon coownership 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 coproprietorship against his will"). But in India this order of ideas is reversed, and it may be said

that separate proprietorship is always on its way to become proprietorship in common. The process has been

adverted to already. As soon as a son is born, he acquires a vested interest in his father's substance, and on

attaining years of discretion he is even, in certain contingencies, permitted by the letter of the law to call for a

partition of the family estate. As a fact, however, a division rarely takes place even at the death of the father,

and the property constantly remains undivided for several generations, though every member of every

generation has a legal right to an undivided share in it. The domain thus held in common is sometimes

administered by an elected manager, but more generally, and in some provinces always, it is managed by the

eldest agnate, by the eldest representative of the eldest line of the stock. Such an assemblage of joint

proprietors, a body of kindred holding a domain in common, is the simplest form of an Indian Village

Community, but the Community is more than a brotherhood of relatives and more than an association of

partners. It is an organized society, and besides providing for the management of the common fund, it seldom

fails to provide, by a complete staff of functionaries, for internal government, for police, for the

administration of justice, and for the apportionment of taxes and public duties.

The process which I have described as that under which a Village Community is formed, may be regarded as

typical. Yet it is not to be supposed that every Village Community in India drew together in so simple a

manner. Although, in the North of India, the archives, as I am informed, almost invariably show that the

Community was founded by a single assemblage of bloodrelations, they also supply information that men of

alien extraction have always, from time to time, been engrafted on it, and a mere purchaser of a share may

generally, under certain conditions, be admitted to the brotherhood. In the South of the Peninsula there are

often Communities which appear to have sprung not from one but from two or more families; and there are

some whose composition is known to be entirely artificial; indeed, the occasional aggregation of men of

different castes in the same society is fatal to the hypothesis of a common descent. Yet in all these

brotherhoods either the tradition is preserved, or the assumption made, of an original common parentage.

Mountstuart Elphinstone, who writes more particularly of the Southern Village Communities, observes of

them (History of India, i. 126): "The popular notion is that the Village landholders are all descended from one

or more individuals who settled the village; and that the only exceptions are formed by persons who have

derived their rights by purchase or otherwise from members of the original stock. The supposition is

confirmed by the fact that, to this day, there are only single families of landholders in small villages and not

many in large ones; but each has branched out into so many members that it is not uncommon for the whole

agricultural labour to be done by the landholders, without the aid either of tenants or of labourers. The rights

of the landholders are their collectively and, though they almost always have a more or less perfect partition

of them, they never have an entire separation. A landholder, for instance, can sell or mortgage his rights; but

he must first have the consent of the Village, and the purchaser steps exactly into his place and takes up all

his obligations. If a family becomes extinct, its share returns to the common stock."

Some considerations which have been offered in the fifth chapter of this volume will assist the reader, I trust,

in appreciating the significance of Elphinstone's language. No institution of the primitive world is likely to

have been preserved to our day, unless it has acquired an elasticity foreign to its original nature through some

vivifying legal fiction. The Village Community then is not necessarily an assemblage of bloodrelations, but

it is either such an assemblage or a body of coproprietor formed on the model of an association of kinsmen.

The type with which it should be compared is evidently not the Roman Family, but the Roman Gens or

House. The Gens was also a group on the model of the family. it was the family extended by a variety of

fictions of which the exact nature was lost in antiquity. In historical times, its leading characteristics were the

very two which Elphinstone remarks in the Village Community. There was always the assumption of a

common origin, an assumption sometimes notoriously at variance with fact; and, to repeat the historian's

words, "if a family became extinct, its share returned to the common stock." In old Roman law, unclaimed

inheritances escheated to the Gentiles. It is further suspected by all who have examined their history that the

Communities, like the Gentes, have been very generally adulterated by the admission of strangers, but the

exact mode of absorption cannot now be ascertained. At present, they are recruited, as Elphinstone tells us, by

the admission of purchasers, with the consent of the brotherhood. The acquisition of the adopted member is,

however, of the nature of a universal succession; together with the share he has bought, he succeeds to the

liabilities which the vendor had incurred towards the aggregate group. He is an Emptor Familiae, and inherits

the legal clothing of the person whose place he begins to fill. The consent of the whole brotherhood required

for his admission may remind us of the consent which the Comitia Curiata, the Parliament of that larger

brotherhood of selfstyled kinsmen, the ancient Roman commonwealth, so strenuously insisted on as

The tokens of an extreme antiquity are discoverable in almost every single feature of the Indian Village

Communities. We have so many independent reasons for suspecting that the infancy of law is distinguished

by the prevalence of coownership by the intermixture of personal with proprietary rights, and by the

confusion of public with private duties, that we should be justified in deducing many important conclusions

from our observation of these proprietary brotherhoods, even if no similarly compounded societies could be

detected in any other part of the world. It happens, however, that much earnest curiosity has been very

recently attracted to a similar set of phenomena in those parts of Europe which have been most slightly

affected by the feudal transformation of property, and which in many important particulars have as close an

affinity with the Eastern as with the Western world. The researches of M. de Haxthausen, M. Tengoborski,

and others, have shown us that the Russian villages are not fortuitous assemblages of men, nor are they

unions founded on contract; they are naturally organised communities like those of India. It is true that these

villages are always in theory the patrimony of some noble proprietor, and the peasants have within historical

times been converted into the predial, and to a great extent into the personal, serfs of the seignior. But the

pressure of this superior ownership has never crushed the ancient organisation of the village, and it is

probable that the enactment of the Czar of Russia, who is supposed to have introduced serfdom, was really

intended to prevent the peasants from abandoning that cooperation without which the old social order could

not long be maintained. In the assumption of an agnatic connection between the villagers, in the blending of

personal rights with privileges of ownership, and in a variety of spontaneous provisions for internal

administration, the Russian Village appears to be a nearly exact repetition of the Indian Community; but there

is one important difference which we note with the greatest interest. The coowners of an Indian village,

though their property is blended, have their rights distinct, and this separation of rights is complete and

continues indefinitely. The severance of rights is also theoretically complete in a Russian village, but there it

is only temporary. After the expiration of a given, built 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 debateable land between the Turkish

empire and the possessions of the House of Austria, In Servia, in Croatia, and the Austrian Sclavonia, the

villages are also brotherhoods of persons who are at once coowners and kinsmen; but there the internal

arrangements of the community differ from those adverted to in the last two examples. The substance of the

common property is in this case neither divided in practice nor considered in theory as divisible, but the entire

land is cultivated by the combineD labour of all the villagers, and the produce is annually distributed among

the households, sometimes according to their supposed wants, sometimes according to rules which give to

particular persons a fixed share of the usufruct. All these practices are traced by the jurists of the East of

Europe to a principle which is asserted to be found in the earliest Sclavonian laws, the principle that the

The great interest of these phenomena in an inquiry like the present arises from the light they throw on the

development of distinct proprietary rights inside the groups by which property seems to have been originally

held. We have the strongest reason for thinking that property once belonged not to individuals nor even to

isolated families, but to larger societies composed on the patriarchal model; but the mode of transition from

ancient to modern ownerships, obscure at best, would have been infinitely obscurer if several distinguishable

forms of Village Communities had not been discovered and examined. It is worth while to attend to the

varieties of internal arrangement within the patriarchal groups which are, or were till recently, observable

among races of IndoEuropean blood. The chiefs of the ruder Highland clans used, it is said, to dole out food

to the heads of the households under their jurisdiction at the very shortest intervals, and sometimes day by

day. A periodical distribution is also made to the Sclavonian villagers of the Austrian and Turkish provinces

by the elders of their body, but then it is a distribution once for all of the total produce of the year. In the

Russian villages, however, the substance of the property ceases to be looked upon as indivisible, and separate

proprietary claims are allowed freely to grow up, but then the progress of separation is peremptorily arrested

after it has continued a certain time. In India, not only is there no indivisibility of the common fund, but

separate proprietorship in parts of it may be indefinitely prolonged and may branch out into any number of

derivative ownerships, the de facto partition of the stock being, however, checked by inveterate usage, and by

the rule against the admission of strangers without the consent of the brotherhood. It is not of course intended

to insist that these different forms of the Village Community represent distinct stages in a process of

transmutation which has been everywhere accomplished in the same manner. But, though the evidence does

not warrant our going so far as this, it renders less presumptuous the conjecture that private property, in the

shape in which we know it, was chiefly formed by the gradual disentanglement of the separate rights of

individuals from the blended rights of a community. Our studies in the Law of Persons seemed to show us the

Family expanding into the Agnatic group of kinsmen, then the Agnatic group dissolving into separate

households; lastly the household supplanted by the individual; and it is now suggested that each step in the

change corresponds to an analogous alteration in the nature of Ownership. If there be any truth in the

suggestion, it is to be observed that it materially affects the problem which theorists on the origin of Property

have generally proposed to themselves. The question perhaps an insoluble one which they have mostly

agitated is, what were the motives which first induced men to respect each other's possessions? It may still be

put, without much hope of finding an answer to it, in the form of any inquiry into the reasons which led one

composite group to keep aloof from the domain of another. But, if it be true that far the most important

passage in the history of Private Property is its gradual elimination from the coownership of kinsmen, then

the great point of inquiry is identical with that which lies on the threshold of all historical law what were

the motives which originally prompted men to hold together in the family union? To such a question,

Jurisprudence, unassisted by other sciences, is not competent to give a reply. The fact can only be noted.

The undivided state of property in ancient societies is consistent with a peculiar sharpness of division, which

shows itself as soon as any single share is completely separated from the patrimony of the group. This

phenomenon springs, doubtless, from the circumstance that the property is supposed to become the domain of

a new group, so that any dealing with it, in its divided state, is a transaction between two highly complex

bodies. I have already compared Ancient Law to Modern International Law, in respect of the size and

complexity of the corporate associations, whose rights and duties it settles. As the contracts and conveyances

known to ancient law are contracts and conveyances to which not single individuals, but organised companies

of men, are parties, they are in the highest degree ceremonious; they require a variety of symbolical acts and

words intended to impress the business on the memory of all who take part in it; and they demand the

presence of an inordinate number of witnesses. From these peculiarities, and others allied to them, springs the

universally unmalleable character of the ancient forms of property. Sometimes the patrimony of the family is

absolutely inalienable, as was the case with the Sclavonians, and still oftener, though alienations may not be

entirely illegitimate, they are virtually impracticable, as among most of the Germanic tribes, from the

necessity of having the consent of a large number of persons to the transfer. Where these impediments do not

exist, or can be surmounted, the act of conveyance itself is generally burdened with a perfect load of

ceremony, in which not one iota can be safely neglected. Ancient law uniformly refuses to dispense with a

single gesture, however grotesque; with a single syllable, however its meaning may have been forgotten; with

a single witness, however superfluous may be his testimony. The entire solemnities must be scrupulously

completed by persons legally entitled to take part in them, or else the conveyance is null, and the seller is

These various obstacles to the free circulation of the objects of use and enjoyment, begin of course to make

themselves felt as soon as society has acquired even a slight degree of activity, and the expedients by which

advancing communities endeavour to overcome them form the staple of the history of Property. Of such

expedients there is one which takes precedence of the rest from its antiquity and universality. The idea seems

to have spontaneously suggested itself to a great number of early societies, to classify property into kinds.

One kind or sort of property is placed on a lower footing of dignity than the others, but at the same time is

relieved from the fetters which antiquity has imposed on them. Subsequently, the superior convenience of the

rules governing the transfer and descent of the lower order of property becomes generally recognised, and by

a gradual course of innovation the plasticity of the less dignified class of valuable objects is communicated to

the classes which stand conventionally higher. The history of Roman Property Law is the history of the

assimilation of Res Mancipi to Res Nec Mancipi. The history of Property on the European Continent is the

history of the subversion of the feudalised law of land by the Romanised law of moveables; and, though the

history of ownership in England is not nearly completed, it is visibly the law of personalty which threatens to

The only natural classification of the objects of enjoyment, the only classification which corresponds with an

essential difference in the subjectmatter, is that which divides them into Moveables and Immoveables.

Familiar as is this classification to jurisprudence, it was very slowly developed by Roman law; from which

we inherit it, and was only finally adopted by it in its latest stage. The classifications of Ancient Law have

sometimes a superficial resemblance to this. They occasionally divide property into categories, and place

immoveables in one of them; but then it is found that they either class along with immoveables a number of

objects which have no sort of relation with them, or else divorce them from various rights to which they have

a close affinity. Thus, the Res Mancipi of Roman Law included not only land, but slaves, horses, and oxen.

Scottish law ranks with land a certain class of securities, and Hindoo law associates it with slaves. English

law, on the other hand, parts leases of land for years from other interests in the soil, and joins them to

personalty under the name of chattels real. Moreover the classifications of Ancient Law are classifications

implying superiority and inferiority; while the distinction between moveables and immoveables, so long at

least as it was confined to Roman jurisprudence, carried with it no suggestion whatever of a difference in

dignity. The Res Mancipi, however, did certainly at first enjoy a precedence over the Res Nec Mancipi, as did

heritable property in Scotland and realty in England, over the personalty to which they were opposed. The

lawyers of all systems have spared no pains in striving to refer these classifications to some intelligible

principle; but the reasons of the severance must ever be vainly sought for in the philosophy of law: they

belong not to its philosophy, but to its history. The explanation which appears to cover the greatest number of

instances is, that the objects of enjoyment honoured above the rest were the forms of property known first and

earliest to each particular community, and dignified therefore emphatically with the designation of Property.

On the other hand, the articles not enumerated among the favoured objects seem to have been placed on a

lower standing, because the knowledge of their value was posterior to the epoch at which the catalogue of

superior property was settled. They were at first unknown, rare, limited in their uses, or else regarded as mere

appendages to the privileged objects. Thus, though the Roman Res Mancipi included a number of moveable

articles of great value, still the most costly jewels were never allowed to take rank as Res Mancipi, because

they were unknown to the early Romans. In the same way chattels real in England are said to have been

degraded to the footing of personalty, from the infrequency and valuelessness of such estates under the feudal

landlaw. 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 intruded among

the favoured objects of enjoyment? One reason is found in the stubbornness with which Ancient Law adheres

to its classifications. It is a characteristic both of uneducated minds and of early societies, that they are little

able to conceive a general rule apart from the particular applications of it with which they are practically

familiar. They cannot dissociate a general term or maxim from the special examples which meet them in

daily experience; and in this way the designation covering the bestknown 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 subjectmatter 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 stumblingblocks to good faith and

steppingstones to fraud. We are perhaps in some danger of underrating the inconveniences of the ancient

modes of transfer. Our instruments of conveyance are written, so that their language, well pondered by the

professional draftsman, is rarely defective in accuracy. But an ancient conveyance was not written, but acted.

Gestures and words took the place of written technical phraseology, and any formula mispronounced, or

symbolical act omitted, would have vitiated the proceeding as fatally as a material mistake in stating the uses

or setting out the remainders would, two hundred years ago, have vitiated an English deed. Indeed, the

mischiefs of the archaic ceremonial are even thus only half stated. So long as elaborate conveyances, written

or acted, are required for the alienation of land alone, the chances of mistake are not considerable in the

transfer of a description of property which is seldom got rid of with much precipitation. But the higher class

of property in the ancient world comprised not only land but several of the commonest and several of the

most valuable moveables. When once the wheels of society had begun to move quickly, there must have been

immense inconvenience in demanding a highly intricate form of transfer for a horse or an ox, or for the most

costly chattel of the old world the Slave. Such commodities must have been constantly and even

ordinarily conveyed with incomplete forms, and held, therefore, under imperfect titles.

The Res Mancipi of old Roman law were land in historical times, land on Italian soil, slaves and beasts

of burden, such as horses and oxen. It is impossible to doubt that the objects which make up the class are the

instruments of agricultural labour, the commodities of first consequence to a primitive people. Such

commodities were at first, I imagine, called emphatically Things or Property, and the mode of conveyance by

which they were transferred was called a Mancipium or Mancipation; but it was not probably till much later

that they received the distinctive appellation of Res Mancipi, "Things which require a Mancipation." By their

side there may have existed or grown up a class of objects, for which it was not worth while to insist upon the

full ceremony of Mancipation. It would be enough if, in transferring these last from owner to owner, a part

only of the ordinary formalities were proceeded with, namely, that actual delivery, physical transfer, or

tradition, which is the most obvious index of a change of proprietorship. Such commodities were the Res Nec

Mancipi of the ancient jurisprudence, "things which did not require a Mancipation," little prized probably at

first, and not often passed from one group of proprietors to another. While, however, the list of the Res

Mancipi was irrevocably closed, that of the Res Nec Mancipi admitted of indefinite expansion; and hence

every fresh conquest of man over material nature added an item to the Res Nec Mancipi, or effected an

improvement in those already recognised. Insensibly, therefore, they mounted to an equality with the Res

Mancipi, and the impression of an intrinsic inferiority being thus dissipated, men began to observe the

manifold advantages of the simple formality which accompanied their transfer over the more intricate and

more venerable ceremonial. Two of the agents of legal amelioration, Fictions and Equity, were assiduously

employed by the Roman lawyers to give the practical effects of a Mancipation to a Tradition: and, though

Roman legislators long shrank from enacting that the right of property in a Res Mancipi should be

immediately transferred by bare delivery of the article, yet even this step was at last ventured upon by

Justinian, in whose jurisprudence the difference between Res Mancipi and Res Nec Mancipi disappears, and

Tradition or Delivery becomes the one great conveyance known to the law. The marked preference which the

Roman lawyers very early gave to Tradition caused them to assign it a place in their theory which has helped

to blind their modern disciples to its true history. It was classed among the "natural" modes of acquisition,

both because it was generally practised among the Italian tribes, and because it was a process which attained

its object by the simplest mechanism. If the expressions of the jurisconsults be pressed, they undoubtedly

imply that Tradition, which belongs to the Law Natural, is more ancient than Mancipation, which is an

institution of Civil Society; and this, I need not say, is the exact reverse of the truth.

The distinction between Res Mancipi and Res Nec Mancipi is the type of a class of distinctions to which

civilisation is much indebted, distinctions which run through the whole mass of commodities, placing a few

of them in a class by themselves, and relegating the others to a lower category. The inferior kinds of property

are first, from disdain and disregard, released from the perplexed ceremonies in which primitive law delights,

and thus afterwards, in another state of intellectual progress, the simple methods of transfer and recovery

which have been allowed to come into use serve as a model which condemns by its convenience and

simplicity the cumbrous solemnities inherited from ancient days. But, in some societies, the trammels in

which Property is tied up are much too complicated and stringent to be relaxed in so easy a manner.

Whenever male children have been born to a Hindoo, the law of India, as I have stated, gives them all an

interest in his property, and makes their consent a necessary condition of its alienation. In the same spirit, the

general usage of the old Germanic peoples it is remarkable that the AngloSaxon customs seem to have

been an exception forbade alienations without the consent of the male children; and the primitive law of the

Sclavonians even prohibited them altogether. It is evident that such impediments as these cannot be overcome

by a distinction between kinds of property, inasmuch as the difficulty extends to commodities of all sorts; and

accordingly, Ancient Law, when once launched on a course of improvement, encounters them with a

distinction of another character, a distinction classifying property, not according to its nature but according to

its origin. In India, where there are traces of both systems of classification, the one which we are considering

is exemplified in the difference which Hindoo law establishes between Inheritances and Acquisitions. The

inherited property of the father is shared by the children as soon as they are born; but according to the custom

of most provinces, the acquisitions made by him during his lifetime are wholly his own, and can be

transferred by him at pleasure. A similar distinction was not unknown to Roman law, in which the earliest

innovation on the Parental Powers took the form of a permission given to the son to keep for himself

whatever he might have acquired in military service. But the most extensive use ever made of this mode of

classification appears to have been among the Germans, I have repeatedly stated that the allod, though not

inalienable, was commonly transferable with the greatest difficulty. and moreover, it descended exclusively

to the agnatic kindred. Hence an extraordinary variety of distinctions came to be recognised, all intended to

diminish the inconveniences inseparable from allodial property. The wehrgeld, for example, or composition

for the homicide of a relative, which occupies so large a space in German jurisprudence, formed no part of

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

or fine leviable on the remarriage of a widow, did not enter into the allod of the person to whom it was paid,

and followed a line of devolution in which the privileges of the agnates were neglected. The law, too, as

among the Hindoos, distinguished the Acquisitions of the chief of the household from his Inherited property,

and permitted him to deal with them under much more liberal conditions. Classifications of the other sort

were also admitted, and the familiar distinction drawn between land and moveables; but moveable property

was divided into several subordinate categories, to each of which different rules applied. This exuberance of

classification, which may strike us as strange in so rude a people as the German conquerors of the Empire, is

doubtless to be explained by the presence in their systems of a considerable element of Roman law, absorbed

by them during their long sojourn on the confines of the Roman dominion. It is not difficult to trace a great

number of the rules governing the transfer and devolution of the commodities which lay outside the allod, to

their source in Roman jurisprudence, from which they were probably borrowed at widely distant epochs, and

in fragmentary importations. How far the obstacles to the free circulation of property were surmounted by

such contrivances, we have not the means even of conjecturing, for the distinctions adverted to have no

modern history. As I before explained, the allodial form of property was entirely lost in the feudal, and when

the consolidation of feudalism was once completed, there was practically but one distinction left standing of

all those which had been known to the western world the distinction between land and goods,

immoveables and moveables. Externally this distinction was the same with that which Roman law had finally

accepted, but the law of the middle ages differed from that of Rome in distinctly considering immoveable

property to be more dignified than moveable. Yet this one sample is enough to show the importance of the

class of expedients to which it belongs. In all the countries governed by systems based on the French codes,

that is, through much the greatest part of the Continent of Europe, the law of moveables, which was always

Roman law, has superseded and annulled the feudal law of land. England is the only country of importance in

which this transmutation, though it has gone some way, is not nearly accomplished. Our own, too, it may be

added, is the only considerable European country in which the separation of moveables from immoveables

has been somewhat disturbed by the same influences which caused the ancient classifications to depart from

the only one which is countenanced by nature. In the main, the English distinction has been between land and

goods; but a certain class of goods have gone as heirlooms 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

I proceed to notice one or two more contrivances by which the ancient trammels of proprietary right were

more or less successfully relaxed, premising that the scheme of this treatise only permits me to mention those

which are of great antiquity. On one of them in particular it is necessary to dwell for a moment or two,

because persons unacquainted with the early history of law will not be easily persuaded that a principle, of

which modern jurisprudence has very slowly and with the greatest difficulty obtained the recognition, was

really familiar to the very infancy of legal science. There is no principle in all law which the moderns, in spite

of its beneficial character, have been so loath to adopt and to carry to its legitimate consequences as that

which was known to the Romans as Usucapion, and which has descended to modern jurisprudence under the

name of Prescription. It was a positive rule of the oldest Roman law, a rule older than the Twelve Tables, that

commodities which had been uninterruptedly possessed for a certain period became the property of the

possessor. The period of possession was exceedingly short one or two years according to the nature of the

commodities and in historical times Usucapion was only allowed to operate when possession had commenced

in a particular way; but I think it likely that at a less advanced epoch possession was converted into

ownership under conditions even less severe than we read of in our authorities. As I have said before, I am far

from asserting that the respect of men for de facto possession is a phenomenon which jurisprudence can

account for by itself, but it is very necessary to remark that primitive societies, in adopting the principle of

Usucapion, were not beset with any of the speculative doubts and hesitations which have impeded its

reception among the moderns. Prescriptions were viewed by the modern lawyers, first with repugnance,

afterwards with reluctant approval. In several countries, including our own, legislation long declined to

advance beyond the rude device of barring all actions based on a wrong which had been suffered earlier than

a fixed point of time in the past, generally the first year of some preceding reign; nor was it till the middle

ages had finally closed, and James the First had ascended the throne of England, that we obtained a true

statute of limitation of a very imperfect kind. This tardiness in copying one of the most famous chapters of

Roman law, which was no doubt constantly read by the majority of European lawyers, the modern world

owes to the influence of the Canon Law. The ecclesiastical customs out of which the Canon Law grew,

concerned as they were with sacred or quasisacred interests, very naturally regarded the privileges which

they conferred as incapable of being lost through disuse however prolonged; and in accordance with this

view, the spiritual jurisprudence, when afterwards consolidated, was distinguished by a marked leaning

against Prescriptions. It was the fate of the Canon Law when held up by the clerical lawyers as a pattern to

secular legislation, to have a peculiar influence on first principles. It gave to the bodies of custom which were

formed throughout Europe far fewer express rules than did the Roman law, but then it seems to have

communicated a bias to professional opinion on a surprising number of fundamental points, and the

tendencies thus produced progressively gained strength as each system was developed. One of the

dispositions it produced was a disrelish for Prescriptions; but I do not know that this prejudice would have

operated as powerfully as it has done, if it had not fallen in with the doctrine of the scholastic jurists of the

realist sect, who taught that, whatever turn actual legislation might take, a right, how long soever neglected,

was in point of fact indestructible. The remains of this state of feeling still exist. Wherever the philosophy of

law is earnestly discussed, questions respecting the speculative basis of Prescription are always hotly

disputed; and it is still a point of the greatest interest in France and Germany, whether a person who has been

out of possession for a series of years is deprived of his ownership as a penalty for his neglect, or loses it

through the summary interposition of the law in its desire to have afinis 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 year. What was the exact tenor of

the rule of Usucapion in its earliest shape, it is not easy to say; but, taken with the limitations which we find

attending it in the books, it was a most useful security against the mischiefs of a too cumbrous system of

conveyance. In order to have the benefit of Usucapion, it was necessary that the adverse possession should

have begun in good faith, that is, with belief on the part of the possessor that he was lawfully acquiring the

property, and it was farther required that the commodity should have been transferred to him by some mode

of alienation which, however unequal to conferring a complete title in the particular case, was at least

recognised by the law. In the case therefore of a Mancipation, however slovenly the performance might have

been, yet if it had been carried so far as to involve a Tradition or Delivery, the vice of the title would be cured

by Usucapion in two years at most. I know nothing in the practice of the Romans which testifies so strongly

to their legal genius as the use which they made of Usucapion. The difficulties which beset them were nearly

the same with those which embarrassed and still embarrass the lawyers of England. Owing to the complexity

of their system, which as yet they had neither the courage nor the power to reconstruct, actual right was

constantly getting divorced from technical right, the equitable ownership from the legal. But Usucapion, as

manipulated by the jurisconsults, supplied a selfacting machinery, by which the defects of titles to property

were always in course of being cured, and by which the ownerships that were temporarily separated were

again rapidly cemented together with the briefest possible delay. Usucapion did not lose its advantages till the

reforms of Justinian. But as soon as law and equity had been completely fused, and when Mancipation ceased

to be the Roman conveyance, there was no further necessity for the ancient contrivance, and Usucapion, with

its periods of time considerably lengthened, became the Prescription which has at length been adopted by

I pass by with brief mention another expedient having the same object with the last, which, though it did not

immediately make its appearance in English legal history, was of immemorial antiquity in Roman law. such

indeed is its apparent age that some German civilians, not sufficiently aware of the light thrown on the

subject by the analogies of English law, have thought it even older than the Mancipation. I speak of the

Cessio in Jure, a collusive recovery, in a Court of law of property sought to be conveyed. The plaintiff

claimed the subject of this proceeding with the ordinary forms of a litigation; the defendant made default; and

the commodity was of course adjudged to the plaintiff. I need scarcely remind the English lawyer that this

expedient suggested itself to our forefathers, and produced those famous Fines and Recoveries which did so

much to undo the harshest trammels of the feudal landlaw. The Roman and English contrivances have very

much in common and illustrate each other most instructively, but there is this difference between them, that

the object of the English lawyers was to remove complications already introduced into the title, while the

Roman jurisconsults sought to prevent them by substituting a mode of transfer necessarily unimpeachable for

one which too often miscarried. The device is, in fact, one which suggests itself as soon as Courts of Law are

in steady operation, but are nevertheless still under the empire of primitive notions. In an advanced state of

legal opinion, tribunals regard collusive litigation as an abuse of their procedure; but there has always been a

time when, if their forms were scrupulously complied with, they never dreamed of looking further.

The influence of Courts of Law and of their procedure upon Property has been most extensive, but the subject

is too large for the dimensions of this treatise, and would carry us further down the course of legal history

than is consistent with its scheme. It is desirable, however, to mention, that to this influence we must attribute

the importance of the distinction between Property and Possession not, indeed, the distinction itself, which

(in the language of an eminent English civilian) is the same thing as the distinction between the legal right to

act upon a thing and the physical power to do so but the extraordinary importance which the distinction

has obtained in the philosophy of law. Few educated persons are so little versed in legal literature as not to

have heard that the language of the Roman jurisconsults on the subject of Possession long occasioned the

greatest possible perplexity, and that the genius of Savigny is supposed to have chiefly proved itself by the

solution which he discovered for the enigma. Possession, in fact, when employed by the Roman lawyers,

appears to have contracted a shade of meaning not easily accounted for. The word, as appears from its

etymology; must have originally denoted physical contact or physical contact resumeable at pleasure; but, as

actually used without any qualifying epithet, it signifies not simply physical detention, but physical detention

coupled with the intention to hold the thing detained as one's own. Savigny, following Niebuhr, perceived

that for this anomaly there could only be a historical origin. He pointed out that the Patrician burghers of

Rome, who had become tenants of the greatest part of the public domain at nominal rents, were, in the view

of the old Roman law, mere possessors, but then they were possessors intending to keep their land against all

comers. They, in truth, put forward a claim almost identical with that which has recently been advanced in

England by the lessees of Church lands. Admitting that in theory they were the tenantsatwill of the state,

they contended that time and undisturbed enjoyment had ripened their holding into a species of ownership,

and that it would be unjust to eject them for the purpose of redistributing the domain. The association of this

claim with the Patrician tenancies, permanently influenced the sense of "possession." Meanwhile the only

legal remedies of which the tenants could avail themselves, if ejected or threatened with disturbance, were the

Possessory Interdicts, summary processes of Roman law which were either expressly devised by the Praetor

for their protection, or else, according to another theory, had in older times been employed for the provisional

maintenance of possessions pending the settlement of questions of legal right. It came, therefore, to be

understood that everybody who possessed property as his own had the power of demanding the Interdicts,

and, by a system of highly artificial pleading, the Interdictal process was moulded into a shape fitted for the

trial of conflicting claims to a disputed possession. Then commenced a movement which, as Mr John Austin

pointed out, exactly reproduced itself in English law. Proprietors, domini, began to prefer the simpler forms

or speedier course of the Interdict to the lagging and intricate formalities of the Real Action, and for the

purpose of availing themselves of the possessory remedy fell back upon the possession which was supposed

to be involved in their proprietorship. The liberty conceded to persons who were not true Possessors, but

Owners, to vindicate their rights by possessory remedies, though it may have been at first a boon, had

ultimately the effect of seriously deteriorating both English and Roman jurisprudence. The Roman law owes

to it those subtleties on the subject of Possession which have done so much to discredit it, while English law,

after the actions which it appropriated to the recovery of real property had fallen into the most hopeless

confusion, got rid at last of the whole tangled mass by a heroic remedy. No one can doubt that the virtual

abolition of the English real actions which took place nearly thirty years since was a public benefit, but still

persons sensitive to the harmonies of jurisprudence will lament that, instead of cleansing, improving, and

simplifying the true proprietary actions, we sacrificed them all to the possessory action of ejectment, thus

Legal tribunals have also powerfully assisted to shape and modify conceptions of proprietary right by means

of the distinction between Law and Equity, which always makes its first appearance as a distinction between

jurisdictions. Equitable property in England is simply property held under the jurisdiction of the Court of

Chancery. At Rome, the Praetor's Edict introduced its novel principles in the guise of a promise that under

certain circumstances a particular action or a particular plea would be granted; and, accordingly, the property

in bonis, or Equitable Property, of Roman law was property exclusively protected by remedies which had

their source in the Edict. The mechanism by which equitable rights were saved from being overridden by the

claims of the legal owner was somewhat different in the two systems. With us their independence is secured

by the Injunction of the Court of Chancery. Since however Law and Equity, while not as yet consolidated,

were administered under the Roman system by the same Court, nothing like the Injunction was required, and

the Magistrate took the simpler course of refusing to grant to the Civil Law Owner those actions and pleas by

which alone he could obtain the property that belonged in equity to another. But the practical operation of

both systems was nearly the same. Both, by means of a distinction in procedure, were able to preserve new

forms of property in a sort of provisional existence, until the time should come when they were recognised by

the whole law. In this way, the Roman Praetor gave an immediate right of property to the person who had

acquired a Res Mancipi by mere delivery, without waiting for the ripening of Usucapion. Similarly he in time

recognised an ownership in the Mortgagee who had at first been a mere "bailee" or depositary, and in the

Emphyteuta, or tenant of land which was subject to a fixed perpetual rent. Following a parallel line of

progress, the English Court of Chancery created a special proprietorship for the Mortgagor, for the Cestui que

Trust, for the Married Woman who had the advantage of a particular kind of settlement, and for the Purchaser

who had not yet acquired a complete legal ownership. All these are examples in which forms of proprietory

right, distinctly new, were recognised and preserved. But indirectly Property has been affected in a thousand

ways by equity both in England and at Rome. Into whatever corner of jurisprudence its authors pushed the

powerful instrument in their command, they were sure to meet, and touch, and more or less materially modify

the law of property: When in the preceding pages I have spoken of certain ancient legal distinctions and

expedients as having powerfully affected the history of ownership, I must be understood to mean that the

greatest part of their influence has arisen from the hints and suggestions of improvement infused by them into

the mental atmosphere which was breathed by the fabricators of equitable systems.

But to describe the influence of Equity on Ownership would be to write its history down to our own days. I

have alluded to it principally because several esteemed contemporary writers have thought that in the Roman

severance of Equitable from Legal property we have the clue to that difference in the conception of

Ownership, which apparently distinguishes the law of the middle ages from the law of the Roman Empire.

The leading characteristic of the feudal conception is its recognition of a double proprietorship, the superior

ownership of the lord of the fief coexisting with the inferior property or estate of the tenant. Now this

duplication of proprietary rightlooks, it is urged, extremely like a generalised form of the Roman distribution

of rights over property into Quiritarian or legal, and (to use a word of late origin) Bonitarian or equitable.

Gaius himself observes upon the splitting of dominion into two parts as a singularity of Roman law, and

expressly contrasts it with the entire or allodial ownership to which other nations were accustomed. Justinian,

it is true, reconsolidated dominion into one, but then it was the partially reformed system of the Western

Empire, and not Justinian's jurisprudence, with which the barbarians were in contact during so many

centuries. While they remained poised on the edge of the Empire, it may well be that they learned this

distinction, which afterwards bore remarkable fruit. In favour of this theory, it must at all events be admitted

that the element of Roman law in the various bodies of barbarian custom has been very imperfectly

examined. The erroneous or insufficient theories which have served to explain Feudalism resemble each other

in their tendency to draw off attention from this particular ingredient in its texture. The older investigators,

who have been mostly followed in this country, attached an exclusive importance to the circumstances of the

turbulent period during which the Feudal system grew to maturity; and in later times a new source of error

has been added to those already existing, in that pride of nationality which has led German writers to

exaggerate the completeness of the social fabric which their forefathers had built up before their appearance

in the Roman world. One or two English inquirers who looked in the right quarter for the foundations of the

feudal system, failed nevertheless to conduct their investigations to any satisfactory result, either from

searching too exclusively for analogies in the compilations of Justinian, or from confining their attention to

the compendia of Roman law which are found appended to some of the extant barbarian codes. But, if Roman

jurisprudence had any influence on the barbarous societies, it had probably produced the greatest part of its

effects before the legislation of Justinian, and before the preparation of these compendia. It was not the

reformed and purified jurisprudence of Justinian, but the undigested system which prevailed in the Western

Empire, and which the Eastern Corpus Juris never succeeded in displacing, that I conceive to have clothed

with flesh and muscle the scanty skeleton of barbarous usage. The change must be supposed to have taken

place before the Germanic tribes had distinctly appropriated, as conqueror, any portion of the Roman

dominions, and therefore long before Germanic monarchs had ordered breviaries of Roman law to be drawn

up for the use of their Roman subjects. The necessity for some such hypothesis will be felt by everybody who

can appreciate the difference between archaic and developed law. Rude as are the Leges Barbarorum which

remain to us, they are not rude enough to satisfy the theory of their purely barbarous origin; nor have we any

reason for believing that we have received, in written records, more than a fraction of the fixed rules which

were practised among themselves by the members of the conquering tribes. If we can once persuade

ourselves that a considerable element of debased Roman law already existed in the barbarian systems, we

shall have done something to remove a grave difficulty. The German law of the conquerors and the Roman

law of their subjects would not have combined if they had not possessed more affinity for each other than

refined jurisprudence has usually for the customs of savages. It is extremely likely that the codes of the

barbarians, archaic as they seem, are only a compound of true primitive usage with halfunderstood Roman

rules, and that it was the foreign ingredient which enabled them to coalesce with a Roman jurisprudence that

had already receded somewhat from the comparative finish which it had acquired under the Western

But, though all this must be allowed, there are several considerations which render it unlikely that the feudal

form of ownership was directly suggested by the Roman duplication of domainial rights. The distinction

between legal and equitable property strikes one as a subtlety little likely to be appreciated by barbarians;

and, moreover, it can scarcely be understood unless Courts of Law are contemplated in regular operation. But

the strongest reason against this theory is the existence in Roman Law of a form of property a creation of

Equity, it is true which supplies a much simpler explanation of the transition from one set of ideas to the

other. This is the Emphyteusis, upon which the Fief of the middle ages has often been fathered, though

without much knowledge of the exact share which it had in bringing feudal ownership into the world. The

truth is that the Emphyteusis, not probably as yet known by its Greek designation, marks one stage in a

current of ideas which led ultimately to feudalism. The first mention in Roman history of estates larger than

could be farmed by a Paterfamilias, with his household of sons and slaves, occurs when we come to the

holdings of the Roman patricians. These great proprietors appear to have had no idea of any system of

Their latifundia seem to have been universally cultivated by slavegangs, under bailiffs who were themselves

slaves or freedmen; and the only organisation attempted appears to have consisted in dividing the inferior

slaves into small bodies, and making them the peculium of the better and trustier sort, who thus acquired a

kind of interest in the efficiency of their labour. This system was, however, especially disadvantageous to one

class of estated proprietors, the Municipalities. Functionaries in Italy were changed with the rapidity which

often surprises us in the administration of Rome herself; so that the superintendence of a large laded domain

by an Italian corporation must have been excessively imperfect. Accordingly, we are told that with the

municipalities began the practice of letting out agri vectigules, that is, of leasing land for a perpetuity to a free

tenant, at a fixed rent, and under certain conditions. The plan was afterwards extensively imitated by

individual proprietors, and the tenant, whose relation to the owner had originally been determined by his

contract, was subsequently recognised by the Praetor 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

slavegangs of the great Roman families became transformed into the coloni, whose origin and situation

constitute one of the obscurest questions in all History. We may suspect that they were formed partly by the

elevation of the slaves, and partly by the degradation of the free farmers; and that they prove the richer

classes of the Roman Empire to have become aware of the increased value which landed property obtains

when the cultivator had an interest in the produce of the land. We know that their servitude was predial; that

it wanted many of the characteristics of absolute slavery, and that they acquitted their service to the landlord

in rendering to him a fixed portion of the annual crop. We know further that they survived all the mutations

of society in the ancient and modern worlds. Though included in the lower courses of the feudal structure,

they continued in many countries to render to the landlord precisely the same dues which they had paid to the

Roman dominus, and from a particular class among them, the coloni medietarii who reserved half the

produce for the owner, are descended the metayer tenantry, who still conduct the cultivation of the soil in

almost all the South of Europe. On the other hand, the Emphyteusis, if we may so interpret the allusions to it

in the Corpus Juris, became a favourite and beneficial modification of property; and it may be conjectured

that wherever free farmers existed, it was this tenure which regulated their interest in the land. The Praetor, as

has been said, treated the Emphyteuta as a true proprietor. When ejected, he was allowed to reinstate himself

by a Real Action, the distinctive badge of proprietory right, and he was protected from disturbance by the

author of his lease so long as the canon, or quitrent, 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 reentry on nonpayment of the rent, a right of preemption in case of sale, and a certain control

over the mode of cultivation. We have, therefore, in the Emphyteusis a striking example of the double

ownership which characterised feudal property, and one, moreover, which is much simpler and much more

easily imitated than the juxtaposition of legal and equitable rights. The History of the Roman tenure does not

end, However, at this point. We have clear evidence that between the great fortresses which, disposed along

the line of the Rhine and Danube, long secured the frontier of the Empire against its barbarian neighbours,

there extended a succession of strips of land, the agri limitrophi, which were occupied by veteran soldiers of

the Roman army on the terms of an Emphyteusis. There was a double ownership. The Roman State was

landlord of the soil, but the soldiers cultivated it without disturbance so long as they held themselves ready to

be called out for military service whenever the state of the border should require it. In fact, a sort of

garrisonduty, under a system closely resembling that of the military colonies on the AustroTurkish border,

had taken the place of the quitrent which was the service of the ordinary Emphyteuta. It seems impossible to

doubt that this was the precedent copied by the barbarian monarchs who founded feudalism. It had been

within their view for some hundred years, and many of the veterans who guarded the border were, it is to be

remembered, themselves of barbarian extraction, who probably spoke the Germanic tongues. Not only does

the proximity of so easily followed a model explain whence the Frankish and Lombard Sovereigns got the

idea of securing the military service of their followers by granting away portions of their public domain; but

it perhaps explains the tendency which immediately showed itself in the Benefices to become hereditary, for

an Emphyteusis, though capable of being moulded to the terms of the original contract, nevertheless

descended as a general rule to the heirs of the grantee. It is true that the holder of a benefice, and more

recently the lord of one of those fiefs into which the benefices were transformed, appears to have owed

certain services which were not likely to have been rendered by the military colonist, and were certainly not

rendered by the Emphyteuta. The duty of respect and gratitude to the feudal superior, the obligation to assist

in endowing his daughter and equipping his son, the liability to his guardianship in minority, and many other

similar incidents of tenure, must have been literally borrowed from the relations of Patron and Freedman

under Roman law, that is, of quondammaster and quondamslave. But then it is known that the earliest

beneficiaries were the personal companions of the sovereign, and it is indisputable that this position, brilliant

as it seems, was at first attended by some shade of servile debasement. The person who ministered to the

Sovereign in his Court had given up something of that absolute personal freedom which was the proudest

There are few general propositions concerning the age to which we belong which seem at first sight likely to

be received with readier concurrence than the assertion that the society of our day is mainly distinguished

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

of the phenomena on which this proposition rests are among those most frequently singled out for notice, for

comment, and for eulogy. Not many of us are so unobservant as not to perceive that in innumerable cases

where old law fixed a man's social position irreversibly at his birth, modern law allows him to create it for

himself by convention; and indeed several of the few exceptions which remain to this rule are constantly

denounced with passionate indignation. The point, for instance, which is really debated in the vigorous

controversy still carried on upon the subject of negro servitude, is whether the status of the slave does not

belong to bygone institutions, and whether the only relation between employer and labourer which commends

itself to modern morality be not a relation determined exclusively by contract. The recognition of this

difference between past ages and the present enters into the very essence of the most famous contemporary

speculations. It is certain that the science of Political Economy, the only department of moral inquiry which

has made any considerable progress in our day, would fail to correspond with the facts of life if it were not

true that Imperative Law had abandoned the largest part of the field which it once occupied, and had left men

to settle rules of conduct for themselves with a liberty never allowed to them till recently. The bias indeed of

most persons trained in political economy is to consider the general truth on which their science reposes as

entitled to become universal, and, when they apply it as an art, their efforts are ordinarily directed to

enlarging the province of Contract and to curtailing that of Imperative Law, except so far as law is necessary

to enforce the performance of Contracts. The impulse given by thinkers who are under the influence of these

ideas is beginning to be very strongly felt in the Western world. Legislation has nearly confessed its inability

to keep pace with the activity of man in discovery, in invention, and in the manipulation of accumulated

wealth; and the law even of the least advanced communities tends more and more to become a mere

surfacestratum having under it an everchanging assemblage of contractual rules with which it rarely

interferes except to compel compliance with a few fundamental principles or unless it be called in to punish

Social inquiries, so far as they depend on the consideration of legal phenomena, are in so backward a

condition that we need not be surprised at not finding these truth recognised in the commonplaces which pass

current concerning the progress of society. These commonplaces answer much more to our prejudices than to

our convictions. The strong disinclination of most men to regard morality as advancing seems to be

especially powerful when the virtues on which Contract depends are in question, and many of us have almost

instinctive reluctance to admitting that good faith and trust in our fellows are more widely diffused than of

old, or that there is anything in contemporary manners which parallels the Loyalty of the antique world. From

time to time, these prepossessions are greatly strengthened by the spectacle of frauds, unheard of before the

period at which they were observed, and astonishing from their complication as well as shocking from

criminality. But the very character of these frauds shows clearly that, before they became possible, the moral

obligations of which they are the breach must have been more than proportionately developed. It is the

confidence reposed and deserved by the many which affords facilities for the bad faith of the few, so that, if

colossal examples of dishonesty occur, there is no surer inclusion than that scrupulous honesty is displayed in

the average of the transactions which, in the particular case, have supplied the delinquent with his

opportunity. If we insist on reading the history of morality as reflected in jurisprudence, by turning our eyes

not on the law of Contract but on the law of Crime, we must be careful that we read it aright. The only form

of dishonesty treated of in the most ancient Roman law is Theft. At the moment at which I write, the newest

chapter in the English criminal law is one which attempts to prescribe punishment for the frauds of Trustees.

The proper inference from this contrast is not that the primitive Romans practised a higher morality than

ourselves. We should rather say that, in the interval between their days and ours, morality has advanced from

a very rude to a highly refined conception from viewing the rights of property as exclusively sacred, to

looking upon the rights growing out of the mere unilateral reposal of confidence as entitled to the protection

The definite theories of jurists are scarcely nearer the truth in this point than the opinions of the multitude. To

begin with the views of the Roman lawyers, we find them inconsistent with the true history of moral and

legal progress. One class of contracts, in which the plighted faith of the contracting parties was the only

material ingredient, they specifically denominated Contracts juris gentium, and though these contracts were

undoubtedly the latest born into the Roman system, the expression employed implies, if a definite meaning be

extracted from it, that they were more ancient than certain other forms of engagement treated of in Roman

law, in which the neglect of a mere technical formality was as fatal to the obligation as misunderstanding or

deceit. But then the antiquity to which they were referred was vague, shadowy, and only capable of being

understood through the Present; nor was it until the language of the Roman lawyers became the language of

an age which had lost the key to their mode of thought that a "Contract of the Law of Nations" came to be

distinctly looked upon as a Contract known to man in a State of Nature. Rousseau adopted both the juridical

and the popular error. In the Dissertation on the effects of Art and Science upon Morals, the first of his works

which attracted attention and the one in which he states most unreservedly the opinions which made him the

founder of a sect, the veracity and good faith attributed to the ancient Persians are repeatedly pointed out as

traits of primitive innocence which have been gradually obliterated by civilisation; and at a later period he

found a basis for all his speculations in the doctrine of an original Social Contract. The Social Contract or

Compact is the most systematic form which has ever been assumed by the error we are discussing. It is a

theory which, though nursed into importance by political passions, derived all its sap from the speculations of

lawyers. True it certainly is that the famous Englishmen, for whom it had first had attraction, valued it chiefly

for its political serviceableness, but, as I shall presently attempt to explain, they would never have arrived at

it, if politicians had not long conducted their controversies in legal phraseology. Nor were the English authors

of the theory blind to that speculative amplitude which recommended it so strongly to the Frenchmen who

inherited it from them. Their writings show they perceived that it could be made to account for all social,

quite as well as for all political phenomena. They had observed the fact, already striking in their day, that of

the positive rules obeyed by men, the greater part were created by Contract, the lesser by Imperative Law.

But they were ignorant or careless of the historical relation of these two constituents of jurisprudence. It was

for the purpose, therefore, of gratifying their speculative tastes by attributing all jurisprudence to a uniform

source, as much as with the view of eluding the doctrines which claimed a divine parentage for Imperative

Law that they devised the theory that all Law had its origin in Contract. In another stage of thought, they

would have been satisfied to leave their theory in the condition of an ingenious hypothesis or a convenient

verbal formula. But that age was under the dominion of legal superstitions. The State of Nature had been

talked about till it had ceased to be regarded as paradoxical, and hence it seemed easy to give a fallacious

reality and definiteness to the contractual origin of Law by insisting on the Social Compact as a historical

Our own generation has got rid of these erroneous juridical theories, partly by outgrowing the intellectual

state to which they belong, and partly by almost ceasing to theorise on such subjects altogether. The favourite

occupation of active minds at the present moment, and the one which answers to the speculations of our

forefathers on the origin of the social state, is the analysis of society as it exists and moves before our eyes;

but, through omitting to call in the assistance of history, this analysis too often degenerates into an idle

exercise of curiosity, and is especially apt to incapacitate the inquirer for comprehending states of society

which differ considerably from that to which he is accustomed. The mistake of judging the men of other

periods by the morality of our own day has its parallel in the mistake of supposing that every wheel and bolt

in the modern social machine had its counterpart in more rudimentary societies. Such impressions ramify

very widely, and masque themselves very subtly, in historical works written in the modern fashion; but I find

the trace of their presence in the domain of jurisprudence in the praise which is frequently bestowed on the

little apologue of Montesquieu concerning the Troglodytes, inserted in the Lettres Persanes. The Troglodytes

were a people who systematically violated their Contracts, and so perished utterly. If the story bears the moral

which its author intended, and is employed to expose an antisocial heresy by which this century and the last

have been threatened, it is most unexceptionable; but if the inference be obtained from it that society could

not possibly hold together without attaching a sacredness to promises and agreements which should be on

something like a par with the respect that is paid to them by a mature civilisation, it involves an error so grave

as to be fatal to all sound understanding of legal history. The fact is that the Troglodytes have flourished and

founded powerful states with very small attention to the obligations of Contract. The point which before all

others has to be apprehended in the constitution of primitive societies is that the individual creates for himself

few or no rights, and few or no duties. The rules which he obeys are derived first from the station into which

he is born, and next from the imperative commands addressed to him by the chief of the household of which

he forms part. Such a system leaves the very smallest room for Contract. The member 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 member 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

Neither Ancient Law nor any other source of evidence discloses to us society entirely destitute of the

conception of Contract. But the conception, when it first shows itself, is obviously rudimentary. No

trustworthy primitive record can be read without perceiving that the habit of mind which induces us to make

good a promise is as yet imperfectly developed, and that acts of flagrant perfidy are often mentioned without

blame and sometimes described with approbation. In the Homeric literature, for instance, the deceitful

cunning of Ulysses appears as a virtue of the same rank with the prudence of Nestor, the constancy of Hector,

and the gallantry of Achilles. Ancient law is still more suggestive of the distance which separates the crude

form of Contract from its maturity. At first, nothing is seen like the interposition of law to compel the

performance of a promise. That which the law arms with its sanctions is not a promise, but a promise

accompanied with a solemn ceremonial. Not only are formalities of equal importance with the promise itself,

but they are, if anything, of greater importance; for that delicate analysis which mature jurisprudence applies

to the conditions of mind under which a particular verbal assent is given appears, in ancient law, to be

transferred to the words and gestures of the accompanying performance. No pledge is enforced if a single

form be omitted or misplaced, but, on the other hand, if the forms can be shown to have been accurately

proceeded with, it is of no avail to plead that the promise was made under duress or deception. The

transmutation of this ancient view into the familiar notion of a Contract is plainly seen in the history of

jurisprudence. First one or two steps in the ceremonial are dispensed with; then the others are simplified or

permitted to be neglected on certain conditions; lastly, a few specific contracts are separated from the rest and

allowed to be entered into without form, the selected contracts being those on which the activity and energy

of social intercourse depends. Slowly, but most distinctly, the mental engagement isolates itself amid the

technicalities, and gradually becomes the sole ingredient on which the interest of the jurisconsult is

concentrated. Such a mental engagement, signified through external acts, the Romans called a Pact or

Convention; and when the Convention has once been conceived as the nucleus of a Contract, it soon becomes

the tendency of advancing jurisprudence to break away the external shell of form and ceremony. Forms are

thenceforward only retained so far as they are guarantees of authenticity, and securities for caution and

deliberation. The idea of a Contract is fully developed, or, to employ the Roman phrase, Contracts are

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 aes 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 wellknown accompaniments of the Mancipation, the ancient solemnity

described in a former chapter, by which the right of ownership in the highest form of Roman Property was

transferred from one person to another. Mancipation was a conveyance, and hence has arisen the difficulty,

for the definition thus cited appears to confound Contracts and Conveyances, which in the philosophy of

jurisprudence are not simply kept apart, but are actually opposed to each other. The jus in re, right in rem,

right "availing against all the world," or Proprietary Right, is sharply distinguished by the analyst of mature

jurisprudence from the jus ad rem, right in personam, right "availing a single individual or group," or

obligation. Now Conveyances transfer Proprietary Rights, Contracts create Obligations how then can the

two be included under the same name or same general conception? This, like many similar embarrassments,

has been occasioned by the error of ascribing to the mental condition of an unformed society a faculty which

preeminently belongs to an advanced stage of intellectual development, the faculty of distinguishing in

speculation ideas which are blended in practice. We have indications not to be mistaken of a state of social

affairs in which Conveyances and Contracts were practically confounded; nor did the discrepance of the

conceptions become perceptible till men had begun to adopt a distinct practice in contracting and conveying.

It may here be observed that we know enough of ancient Roman law to give some idea of the mode of

transformation followed by legal conceptions and by legal phraseology in the infancy of Jurisprudence. The

change which they undergo appear to be a change from general to special; or, as we might otherwise express

it, the ancient conceptions and the ancient terms are subjected to a process of gradual specialisation. An

ancient legal conception corresponds not to one but to several modern conceptions. An ancient technical

expression serves to indicate a variety of things which in modern law have separate names allotted to them. If

however we take up the history of Jurisprudence at the next stage, we find that the subordinate conceptions

have gradually disengaged themselves and that the old general names are giving way to special appellations.

The old general conception is not obliterated, but it has ceased to cover more than one or a few of the notions

which it first included. So too the old technical name remains, but it discharges only one of the functions

which it once performed. We may exemplify this phenomenon in various ways. Patriarchal Power of all sorts

appears, for instance, to have been once conceived as identical in character, and it was doubtless

distinguished by one name. The Power exercised by the ancestor was the same whether it was exercised over

the family or the material property over flocks, herds, slaves, children, or wife. We cannot be absolutely

certain of its old Roman name, but there is very strong reason for believing, from the number of expressions

indicating shades of the notion of power into which the word manus enter, that the ancient general term was

manus. But, when Roman law has advanced a little, both the name and the idea have become specialised.

Power is discriminated, both in word and in conception, according to the object over which it is exerted.

Exercised over material commodities or slaves, it has become dominium over children, it is Potestas

over free persons whose services have been made away to another by their own ancestor, it is mancipium

over a wife, it is still manus. The old word, it will be perceived, has not altogether fallen into desuetude, but

is confined to one very special exercise of the authority it had formerly denoted. This example will enable us

to comprehend the nature of the historical alliance between Contracts and Conveyances. There seems to have

been one solemn ceremonial at first for all solemn transactions, and its name at Rome appears to have been

nexum. Precisely the same forms which were in use when a conveyance of property was effected seem to

have been employed in the making of a contract. But we have not very far to move onwards before we come

to a period at which the notion of a Contract has disengaged itself from the notion of a Conveyance. A double

change has thus taken place. The transaction "with the copper and the balance," when intended to have for its

office the transfer of property, is known by the new and special name of Mancipation. The ancient Nexum

still designates the same ceremony, but only when it is employed for the special purpose of solemnising a

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 other have been formed,

may not greatly predominate over and take precedence over them. The reason why one legal conception

continues so long to cover several conceptions, and one technical phrase to do instead of several, is doubtless

that practical changes are accomplished in the law of primitive societies long before men see occasion to

notice or name them. Though I have said that Patriarchal Power was not at first distinguished according to the

objects over which it was exercised, I feel sure that Power over Children was the root of the old conception of

Power; and I cannot doubt that the earliest use of the Nexum, and the one primarily regarded by those who

resorted to it, was to give proper solemnity to the alienation of property. It is likely that a very slight

perversion of the Nexum from its original functions first gave rise to its employment in Contracts, and that

the very slightness of the change long prevented its being appreciated or noticed. The old name remained

because men had not become conscious that they wanted a new one; the old notion clung to the mind because

nobody had seen reason to be at the pains of examining it. We have had the process clearly exemplified in the

history of Testaments. A Will was at first a simple conveyance of property. It was only the enormous

practical difference that gradually showed itself between this particular conveyance and all others which

caused it to be regarded separately, and even as it was, centuries elapsed before the ameliorators of law

cleared away the useless encumbrance of the nominal mancipation, and consented to care for nothing in the

Will but the expressed intentions of the Testator. It is unfortunate that we cannot track the early history of

Contracts with the same absolute confidence as the early history of Wills, but we are not quite without hints

that contracts first showed themselves through the nexum being put to a new use and afterwards obtained

recognition as distinct transactions through the important practical consequences of the experiment. There is

some, but not very violent, conjecture in the following delineation of the process. Let us conceive a sale for

ready money as the normal type of the Nexum. The seller brought the property of which he intended to

dispose a slave, for example the purchaser attended with the rough ingots of copper which served for

money and an indispensable assistant, the libripens, presented himself with a pair of scales. The slave with

certain fixed formalities was handed over to the vendee the copper was weighed by the libripens and

passed to the vendor. So long as the business lasted it was a nexum, and the parties were nexi; but the

moment it was completed, the nexum ended, and the vendor and purchaser ceased to bear the name derived

from their momentary relation. But now, let us move a step onward in commercial history. Suppose the slave

transferred, but the money not paid. In that case, the nexum is finished, so far as the seller is concerned, and

when he has once handed over his property, he is no longer nexus; but, in regard to the purchaser, the nexum

continues. The transaction, as to his part of it, is incomplete, and he is still considered to be nexus. It follows,

therefore, that the same term described the Conveyance by which the right of property was transmitted, and

the personal obligation of the debtor for the unpaid purchasemoney. We may still go forward, and picture to

ourselves a proceeding wholly formal, in which nothing is handed over and nothing paid; we are brought at

once to a transaction indicative of much higher commercial activity, an executory Contract of Sale.

If it be true that, both in the popular and in the professional view, a Contract was long regarded as an

incomplete Conveyance, the truth has importance for many reasons. The speculations of the last century

concerning mankind in a state of nature, are not unfairly summed up in the doctrine that "in the primitive

society property was nothing, and obligation everything;" and it will now be seen that, if the proposition were

revered, it would be nearer the reality. On the other hand, considered historically the primitive association of

Conveyances and Contracts explains something which often strikes the scholar and jurist as singularly

enigmatical, I mean the extraordinary and uniform severity of very ancient systems of law to debtors, and the

extravagant powers which they lodge with creditors. When once we understand that the nexum was

artificially prolonged to give time to the debtor, we can better comprehend his position in the eye of the

public and of the law. His indebtedness was doubtless regarded as an anomaly, and suspense of payment in

general as an artifice and a distortion of strict rule. The person who had duly consummated his part in the

transaction must, on the contrary, have stood in peculiar favour; and nothing would seem more natural than to

arm him with stringent facilities for enfording the completion of a proceeding which, of strict right, ought

Nexum,therefore,which originally signified a Conveyance of property, came insensibly to denote a Contract

also, and ultimately so constant became the association between this word and the notion of a Contract, that a

special term, Mancipium or Mancipatio, had to be used for the purpose of designating the true nexum or

transaction in which the property was really transferred. Contracts are therefore now severed from

Conveyances, and the first stage in their history is accomplished, but still they are far enough from that epoch

of their development when the promise of the contractor has a higher sacredness than the formalities with

which it is coupled. In attempting to indicate the character of the changes passed through in this interval, it is

necessary to trespass a little on a subject which lies properly beyond the range of these pages, the analysis of

Agreement effected by the Roman jurisconsults. Of this analysis, the most beautiful monument of their

sagacity, I need not say more than that it is based on the theoretical separation of the Obligation from the

Convention or Pact. Bentham and Mr. Austin have laid down that the "two main essentials of a contract are

these: first, a signification by the promising party of his intention to do the acts or to observe the forbearances

which he promises to do or to observe. Secondly, a signification by the promisee that he expects the

promising party will fulfil the proffered promise." This is virtually identical with the doctrine of the Roman

lawyers, but then, in their view, the result of these "significations" was not a Contract, but a Convention or

Pact. A Pact was the utmost product of the engagements of individuals agreeing among themselves, and it

distinctly fell short of a Contract. Whether it ultimately became a Contract depended on the question whether

the law annexed an Obligation to it. A Contract was a Pact (or Convention) plus an Obligation. So long as the

What was an Obligation? It is defined by the Roman lawyers as "Juris vinculum, quo necessitate adstringimur

alicujus solvendae rei." This definition connects the Obligation with the Nexum through the common

metaphor on which they are founded, and shows us with much clearness the pedigree of a peculiar

conception. The Obligation is the "bond" or "chain" with which the law joins together persons or groups of

persons, in consequence of certain voluntary acts. The acts which have the effect of attracting an Obligation

are chiefly those classed under the heads of Contract and Delict, of Agreement and Wrong; but a variety of

other acts have a similar consequence which are not capable of being comprised in an exact classification. It

is to be remarked, however, that the act does not draw to itself the Obligation in consequence of any moral

necessity,. it is the law which annexes it in the plenitude of its power, a point the more necessary to be noted,

because a different doctrine has sometimes been propounded by modern interpreters of the Civil Law who

had moral or metaphysical theories of their own to support. The image of a vinculum juris colours and

pervades every part of the Roman law of Contract and Delict. The law bound the parties together, and the

chain could only be undone by the process called solutio, an expression still figurative, to which our word

"payment" is only occasionally and incidentally equivalent. The consistency with which the figurative image

was allowed to present itself, explains an otherwise puzzling peculiarity of Roman legal phraseology, the fact

that "Obligation" signified rights as well as duties, the right, for example, to have a debt paid as well as the

duty of paying it. The Romans kept in fact the entire picture of the "legal chain" before their eyes, and

In the developed Roman law, the Convention, as soon as it was completed, was, in almost all cases, at once

crowned with the Obligation, and so became a Contract; and this was the result to which contractlaw was

surely tending. But for the purpose of this inquiry, we must attend particularly to the intermediate stage

that in which something more than a perfect agreement was required to attract the Obligation. This epoch is

synchronous with the period at which the famous Roman classification of Contracts into four sorts the

Verbal, the Literal, the Real, and the Consensual had come into use, and during which these four orders of

Contracts constituted the only descriptions of engagement which the law would enforce. The meaning of the

fourfold distribution is readily understood as soon as we apprehend the theory which severed the Obligation

from the Convention. Each class of contracts was in fact named from certain formalities which were required

over and above the mere agreement of the contracting parties. In the Verbal Contract, as soon as the

Convention was effected, a form of words had to be gone through before the vinculum juris was attached to

it. In the Literal Contract, an entry in a ledger or tablebook had the effect of clothing the Convention with the

Obligation, and the same result followed, in the case of the Real Contract, from the delivery of the Res or

Thing which was the subject of the preliminary engagement. The contracting parties came, in short, to an

understanding in each case; but, if they went no further, they were not obliged to one another, and could not

compel performance or ask redress for a breach of faith. But let them comply with certain prescribed

formalities, and the Contract was immediately complete, taking its name from the particular form which it

had suited them to adopt. The exceptions to this practice will be noticed presently.

I have enumerated the four Contracts in their historical order, which order, however, the Roman Institutional

writers did not invariably follow. There can be no doubt that the Verbal Contract was the most ancient of the

four, and that it is the eldest known descendant of the primitive Nexum. Several species of Verbal Contract

were anciently in use, but the most important of all, and the only one treated of by our authorities, was

effected by means of a stipulation, that is, a Question and Answer; a question addressed by the person who

exacted the promise, and an answer given by the person who made it. This question and answer constituted

the additional ingredient which, as I have just explained, was demanded by the primitive notion over and

above the mere agreement of the persons interested. They formed the agency by which the Obligation was

annexed. The old Nexum has now bequeathed to maturer jurisprudence first of all the conception of a chain

uniting the contracting parties, and this has become the Obligation. It has further transmitted the notion of a

ceremonial accompanying and consecrating the engagement, and this ceremonial has been transmuted into

the Stipulation. The conversion of the solemn conveyance, which was the prominent feature of the original

Nexum, into a mere question and answer, would be more of a mystery than it is if we had not the analogous

history of Roman Testaments to enlighten us. Looking to that history, we can understand how the formal

Conveyance was first separated from the part of the proceeding which had immediate reference to the

business in hand, and how afterwards it was omitted altogether. As then the question and answer of the

Stipulation were unquestionably the Nexum in a simplified shape, we are prepared to find that they long

partook of the nature of a technical form. It would be a mistake to consider them as exclusively

recommending themselves to the older Roman Lawyers through their usefulness in furnishing persons

meditating an agreement with an opportunity for consideration and reflection. It is not to be disputed that they

had a value of this kind, which was gradually recognised; but there is proof that their function in respect to

Contracts was at first formal and ceremonial in the statement of our authorities, that not every question and

answer was of old sufficient to constitute a Stipulation, but only a question and answer couched in technical

But although it is essential for the proper appreciation of the history of contractlaw 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 juris prudence; and

we may take it for granted that no institution of Roman law had so extended a longevity unless it served some

practical advantage. I observe in an English writer some expressions of surprise that the Romans even of the

earliest times were content with so meagre a protection against haste and irreflection. But on examining the

Stipulation closely, and remembering that we have to do with a state of society in which written evidence was

not easily procurable, I think we must admit that this Question and Answer, had it been expressly devised to

answer the purpose which it served, would have been justly designated a highly ingenious expedient. It was

the promisee who, in the character of stipulator, put all the terms of the contract into the form of a question,

and the answer was given by the promisor. "Do you promise that you will deliver me such and such a slave,

at such and such a place, on such and such a day?" "I do promise." Now, if we reflect for a moment, we shall

see that this obligation to put the promise interrogatively inverts the natural position of the parties, and, by

effectually breaking the tenor of the conversation, prevents the attention from gliding over a dangerous

pledge. With us, a verbal promise is, generally speaking, to be gathered exclusively from the words of the

promisor. In old Roman law, another step was absolutely required; it was necessary for the promisee, after

the agreement had been made, to sum up all its terms in a solemn interrogation; and it was of this

interrogation, of course, and of the assent to it, that proof had to be given at the trial not of the promise,

which was not in itself binding. How great a difference this seemingly insignificant peculiarity may make in

the phraseology of contractlaw is speedily realised by the beginner in Roman jurisprudence, one of whose

first stumblingblocks is almost universally created by it. When we in English have occasion, in mentioning

a contract, to connect it for convenience' sake with one of the parties for example, if we wished to speak

generally of a contractor it is always the promisor at whom our words are pointing. But the general

language of Roman law takes a different turn; it always regards the contract, if we may so speak, from the

point of view of the promisee. in Speaking of a party to a contract, it is always the Stipulator, the person who

asks the question, who is primarily alluded to. But the serviceableness of the stipulation is most vividly

illustrated by referring to the actual examples in the pages of the Latin comic dramatists. If the entire scenes

are read down in which these passages occur (ex. gra. Plautus, Pseudolus, Act I. sc. i; Act IV. sc. 6;

Trinummus, Act V. sc. 2), it will be perceived how effectually the attention of the person meditating the

promise must have been arrested by the question, and how ample was the opportunity for withdrawal from an

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 or Roman domestic manners, the systematic

character and exceeding regularity of bookkeeping in ancient times. There are several minor difficulties of

old Roman law, as, for example, the nature of the Slave's Peculium, which are only cleared up when we

recollect that a Roman household consisted or a number of persons strictly accountable to its head, and that

every single item of domestic receipt and expenditure, after being entered in waste books, was transferred at

stated periods to a general household ledger. There are some obscurities, however, in the descriptions we

have received of the Literal Contract, the fact being that the habit of keeping books ceased to be universal in

later times, and the expression "Literal Contract" came to signify a form of engagement entirely different

from that originally understood. We are not, therefore, in a position to say, with respect to the primitive

Literal Contract, whether the obligation was created by a simple entry on the part of the creditor, or whether

the consent of the debtor or a corresponding entry in his own books was necessary to give it legal effect. The

essential point is however established that, in the case of this Contract, all formalities were dispensed with on

a condition being complied with. This is another step downwards in the history of contractlaw.

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 deliver 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

Contractlaw, and the Real Contract differs from its two predecessors in being rounded on these, rather than

We now reach the fourth class, or Consensual Contracts, the most interesting and important of all. Four

specified Contracts were distinguished by this name: Mandatum, i.e. Commission or Agency; Societas or

Partnership; Emtio Venditio or Sale; and Locatio Conductio or Letting and Hiring. A few pages ago, after

stating that a Contract consisted of a Pact or Convention to which an Obligation had been superadded, I spoke

of certain acts or formalities by which the law permitted the Obligation to be attracted to the Pact. I used this

language on account of the advantage of a general expression, but it is not strictly correct unless it be

understood to include the negative as well as the positive. For, in truth, the peculiarity of these Consensual

Contracts is that no formalities are required to create them out of the Pact. Much that is indefensible, and

much more that is obscure, has been written about the Consensual Contracts, and it has even been asserted

that in them the consent of the Parties is more emphatically given than in any other species of agreement. But

the term Consensual merely indicates that the Obligation is here annexed at once to the Consensus. The

Consensus, or mutual assent of the parties, is the final and crowning ingredient in the Convention, and it is

the special characteristic of agreements falling under one of the four heads of Sale, Partnership, Agency, and

Hiring, that, as soon as the assent of the parties has supplied this ingredient, there is at once a Contract. The

Consensus draws with it the Obligation, performing, in transactions of the sort specified, the exact functions

which are discharged, in the other contracts, by the Res or Thing, by the Verba stipulationis, and by the

Literae or written entry in a ledger. Consensual is therefore a term which does not involve the slightest

In the intercourse of life the commonest and most important of all the contracts are unquestionably the four

styled Consensual. The larger part of the collective existence of every community is consumed in transactions

of buying and selling, of letting and hiring, of alliances between men for purposes of business, of delegation

of business from one man to another; and this is no doubt the consideration which led the Romans, as it has

led most societies, to relieve these transactions from technical incumbrance, to abstain as much as possible

from clogging the most efficient springs of social movement. Such motives were not of course confined to

Rome, and the commerce of the Romans with their neighbours must have given them abundant opportunities

for observing that the contracts before us tended everywhere to become Consensual, obligatory on the mere

signification of mutual assent. Hence, following their usual practice, they distinguished these contracts as

contracts Juris Gentium. Yet I do not think that they were so named at a very early period. The first notions of

a Jus Gentium may have been deposited in the minds of the Roman lawyers long before the appointment of a

Praetor Peregrinus, but it would only be through extensive and regular trade that they would be familiarised

with the contractual system of other Italian communities, and such a trade would scarcely attain considerable

proportions before Italy had been thoroughly pacified, and the supremacy of Rome conclusively assured.

Although, however, there is strong probability that the Consensual Contracts were the latestborn into the

Roman system, and though it is likely that the qualification, Juris Gentium, stamps the recency of their origin,

yet this very expression, which attributes them to the "Law of Nations," has in modern times produced the

notion of their extreme antiquity. For, when the "Law of Nations" had been converted into the "Law of

Nature," it seemed to be implied that the Consensual Contracts were the type of the agreements most

congenial to the natural state; and hence arose the singular belief that the younger the civilisation, the simpler

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 Contractlaw from which all modern conceptions of contract

took their start. The motion of the will which constitutes agreement was now completely insulated, and

became the subject of separate contemplation; forms were entirely eliminated from the notion of contract, and

external acts were only regarded as symbols of the internal act of volition. The Consensual Contracts had,

moreover, been classed in the Jus Gentium, and it was not long before this classification drew with it the

inference that they were the species of agreement which represented the engagements approved of by Nature

and included in her code. This point once reached, we are prepared for several celebrated doctrines and

distinctions of the Roman lawyers. One of them is the distinction between Natural and Civil Obligations.

When a person of full intellectual maturity had deliberately bound himself by an engagement, he was said to

be under a natural obligation, even though he had omitted some necessary formality, and even though

through some technical impediment he was devoid of the formal capacity for making a valid contract. The

law (and this is what the distinction implies) would not enforce the obligation, but it did not absolutely refuse

to recognise it; and natural obligations differed in many respects from obligations which were merely null

and void, more particularly in the circumstance that they could be civilly confirmed, if the capacity for

contract were subsequently acquired. Another very peculiar doctrine of the jurisconsults could not have had

its origin earlier than the period at which the Convention was severed from the technical ingredients of

Contract. They taught that though nothing but a Contract could be the foundation of an action, a mere Pact or

Convention could be the basis of a plea. It followed from this, that though nobody could sue upon an

agreement which he had not taken the precaution to mature into a Contract by complying with the proper

forms, nevertheless a claim arising out of a valid contract could be rebutted by proving a counter agreement

which had never got beyond the state of a simple convention. An action for the recovery of a debt could be

The doctrine just stated indicates the hesitation of the Praetors in making their advances towards the greatest

of their innovations. Their theory of Natural law must have led them to look with especial favour on the

Consensual Contracts and on those Pacts or Conventions of which the Consensual Contracts were only

particular instances; but they did not at once venture on extending to all Conventions the liberty of the

Consensual Contracts. They took advantage of that special superintendence over procedure which had been

confided to them since the first beginnings of Roman law, and, while they still declined to permit a suit to be

launched which was not based on a formal contract, they gave full play to their new theory of agreement in

directing the ulterior stages of the proceeding. But, when they had proceeded thus far, it was inevitable that

they should proceed farther. The revolution of the ancient law of Contract was consummated when the

Praetor of some one year announced in his Edict that he would grant equitable actions upon Pacts which had

never been matured at all into Contracts, provided only that the Pacts in question had been founded on a

consideration (causa). Pacts of this sort are always enforced under the advanced Roman jurisprudence. The

principle is merely the principle of the Consensual. Contract carried to its proper consequence; and, in fact, if

the technical language of the Romans had been as plastic as their legal theories, these Pacts enforced by the

Praetor would have been styled new Contracts, new Consensual Contracts. Legal phraseology is, however,

the part of the law which is the last to alter, and the Pacts equitably enforced continued to be designated

simply Praetorian Pacts. It will be remarked that unless there were consideration for the Pact, it would

continue nude so far as the new jurisprudence was concerned; in order to give it effect, it would be necessary

The extreme importance of this history of Contract, as a safeguard against almost innumerable delusions,

must be my justification for discussing it at so considerable a length. It gives a complete account of the march

of ideas from one great landmark of jurisprudence to another. We begin with Nexum, in which a Contract and

a Conveyance are blended, and in which the formalities which accompany the agreement are even more

important than the agreement itself. From the Nexum we pass to the Stipulation, which is a simplified form of

the older ceremonial. The Literal Contract comes next, and here all formalities are waived, if proof of the

agreement can be supplied from the rigid observances of a Roman household. In the Real Contract a moral

duty is for the first time recognised, and persons who have joined or acquiesced in the partial performance of

an engagement are forbidden to repudiate it on account of defects in form. Lastly, the Consensual Contracts

emerge, in which the mental attitude of the contractors is solely regarded, and external circumstances have no

title to notice except as evidence of the inward undertaking. It is of course uncertain how far this progress of

Roman ideas from a gross to a refined conception exemplifies the necessary progress of human thought on

the subject of Contract. The Contractlaw 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,. the of everything violent, marvellous, or unintelligible in changes I have described, it

may be reasonably believed that the history of ancient Roman Contracts is, up to a certain point, typical of the

history of this class of legal conceptions in other ancient societies. But it is only up to a certain point that the

progress of Roman law can be taken to represent the progress of other systems of jurisprudence. The theory

of Natural law is exclusively Roman. The notion of the vinculum juris, so far as my knowledge extends, is

exclusively Roman. The many peculiarities of the mature Roman law of Contract and Delict which are

traceable to these two ideas, whether singly or in combination, are therefore among the exclusive products of

one particular society. These later legal conceptions are important, not because they typify the necessary

results of advancing thought under all conditions, but because they have exercised perfectly enormous

I know nothing more wonderful than the variety of sciences to which Roman law, Roman Contractlaw more

particularly, has contributed modes of thought, courses of reasoning, and a technical language. Of the

subjects which have whetted the intellectual appetite of the moderns, there is scarcely one, except Physic,

which has not been Altered through Roman jurisprudence. The science of pure Metaphysics had, indeed,

rather a Greek than a Roman parentage, but Politics, Moral Philosophy, and even Theology found in Roman

law not only a vehicle of expression, but a nidus in which some of their profoundest inquiries were nourished

into maturity. For the purpose of accounting for this phenomenon, it is not absolutely necessary to discuss the

mysterious relation between words and ideas, or to explain how it is that the human mind has never grappled

with any subject of thought, unless it has been provided beforehand with a proper store of language and with

an apparatus of appropriate logical methods. It is enough to remark, that, when the philosophical interests of

the Eastern and Western worlds were separated, the founders of Western thought belonged to a society which

spoke Latin and reflected in Latin. But in the Western provinces the only language which retained sufficient

precision for philosophical purposes was the language of Roman law, which by a singular fortune had

preserved nearly all the purity of the Augustan age, while vernacular Latin was degenerating into a dialect of

portentous barbarism. And if Roman jurisprudence supplied the only means of exactness in speech, still more

emphatically did it furnish the only means of exactness, subtlety, or depth in thought. For at least three

centuries, philosophy and science were without a home in the West; and though metaphysic and metaphysical

theology were engrossing the mental energies of multitudes of Roman subjects, the phraseology employed in

these ardent inquiries was exclusively Greek, and their theatre was the Eastern half of the Empire.

Sometimes, indeed, the conclusions of the Eastern disputants became so important that every man's assent to

them, or dissent from them, had to be recorded, and then the West was introduced to the results of Eastern

controversy, which it generally acquiesced in without interest and without resistance. Meanwhile, one

department of inquiry, difficult enough for the most laborious, deep enough for the most subtle, delicate

enough for the most refined, had never lost its attractions for the educated classes of the Western provinces.

To the cultivated citizen of Africa, of Spain, of Gaul and of Northern Italy it was jurisprudence, and

jurisprudence only, which stood in the place of poetry and history, of philosophy and science. So far then

from there being anything mysterious in the palpably legal complexion of the earliest efforts of Western

thought it would rather be astonishing if it had assumed any other hue. I can only express my surprise at the

scantiness of the attention which has been given to the difference between Western ideas and Eastern,

between Western theology and Eastern, caused by the presence of a new ingredient. It is precisely because

the influence of jurisprudence begins to be powerful that the foundation of Constantinople and the subsequent

separation of the Western Empire from the Eastern, are epochs in philosophical history. But continental

thinkers are doubtless less capable of appreciating the importance of this crisis by the very intimacy with

which notions derived from Roman Law are mingled up with every day ideas. Englishmen, on the other hand,

are blind to it through the monstrous ignorance to which they condemn themselves of the most plentiful

source of the stream of modern knowledge, of the one intellectual result of the Roman civilisation. At the

same time, an Englishman, who will be at the pains to familiarise himself with the classical Roman law is

perhaps, from the very slightness of the interest which his countrymen have hitherto taken in the subject, a

better judge than a Frenchman or a German of the value of the assertions I have ventured to make. Anybody

who knows what Roman jurisprudence is, as actually practised by the Romans, and who will observe in what

characteristic the earliest Western theology and philosophy differ from the phases of thought which preceded

them, may be safely left to pronounce what was the new element which had begun to pervade and govern

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 QuasiContract and QuasiDelict. "Quasi," so used, is exclusively a term of

classification. It has been usual with English critics to identify the Quasicontracts with implied contracts,

but this is an error, for implied contracts are true contracts, which quasicontracts 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 QuasiContract is not a contract at all. The

commonest sample of the class is the relation subsisting between two persons one of whom has paid money

to the other through mistake. The law, consulting the interests of morality, imposes an obligation on the

receiver to refund, but the very nature of the transaction indicates that it is not a contract, inasmuch as the

Convention, the most essential ingredient of Contract, is wanting. This word "quasi," prefixed to a term of

Roman law, implies that the conception to which it serves as an index is connected with the conception with

which the comparison is instituted by a strong superficial analogy or resemblance. It does not denote that the

two conceptions are the same or that they belong to the same genus. On the contrary, it negatives the notion

of an identity between them; but it points out that they are sufficiently similar for one to be classed as the

sequel to the other, and that the phraseology taken from one department of law may be transferred to the

other and employed without violent straining in the statement of rules which would otherwise be imperfectly

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 contractlaw had been largely drawn

upon to describe that reciprocity of rights and duties which men had always conceived as existing between

sovereigns and subjects. While the world was full of maxims setting forth with the utmost positiveness the

claims of kings to implicit obedience maxims which pretended to have had their origin in the New

Testament, but which were really derived from indelible recollections of the Cesarian despotism the

consciousness of correlative rights possessed by the governed would have been entirely without the means of

expression if the Roman law of Obligation had not supplied a language capable of shadowing forth an idea

which was as yet imperfectly developed. The antagonism between the privileges of kings and their duties to

their subjects was never, I believe, lost sight of since Western history began, but it had interest for few except

speculative writers so long as feudalism continued in vigour, for feudalism effectually controlled by express

customs the exorbitant theoretical pretensions of most European sovereigns. It is notorious, however, that as

soon as the decay of the Feudal System had thrown the medieval constitutions out of working order, and

when the Reformation had discredited the authority of the Pope, the doctrine of the divine right of Kings rose

immediately into an importance which had never before attended it. The vogue which it obtained entailed still

more constant resort to the phraseology of Roman law, and a controversy which had originally worn a

theological aspect assumed more and more the air of a legal disputation. A phenomenon then appeared which

has repeatedly shown itself in the history of opinion. Just when the argument for monarchical authority

rounded itself into the definite doctrine of Filmer, the phraseology, borrowed from the Law of Contract,

which had been used in defence of the rights of subjects, crystallised into the theory of an actual original

compact between king and people, a theory which, first in English and afterwards, and more particularly, in

French hands, expanded into a comprehensive explanation of all the phenomena of society and law. But the

only real connection between political and legal science had consisted in the last giving to the first the benefit

of its peculiarly plastic terminology. The Roman jurisprudence of Contract had performed for the relation of

sovereign and subject precisely the same service which, in a humbler sphere, it rendered to the relation of

person bound together by an obligation of "quasicontract." It had furnished a body of words and phrases

which approximated with sufficient accuracy to the ideas which then were from time to time forming on the

subject of political obligation. The doctrine of an Original Compact can never be put higher than it is placed

by Dr. Whewell, when he suggests that, though unsound, "it may be a convenient form for the expression of

The extensive employment of legal language on political subjects previously to the invention of the Original

Compact, and the powerful influence which that assumption has exercised subsequently, amply account for

the plentifulness in political science of words and conceptions, which were the exclusive creation of Roman

jurisprudence. Of their plentifulness in Moral Philosophy a rather different explanation must be given,

inasmuch as ethical writings have laid Roman law under contribution much more directly than political

speculations, and their authors have been much more conscious of the extent of their obligation. In speaking

of moral philosophy as extraordinarily indebted to Roman jurisprudence, I must be understood to intend

moral philosophy as understood previously to the break in its history effected by Kant, that is, as the science

of the rules governing human conduct, of their proper interpretation and of the limitations to which they are

subject. Since the rise of the Critical Philosophy, moral science has almost wholly lost its older meaning, and,

except where it is preserved under a debased form in the casuistry still cultivated by Roman Catholic

theologians, it seems to be regarded nearly universally as a branch of ontological inquiry. I do not know that

there is a single contemporary English writer, with the exception of Dr. Whewell, who understands moral

philosophy as it was understood before it was absorbed by metaphysics and before the groundwork of its

rules came to be a more important consideration than the rules themselves. So long, however, as ethical

science had to do with the practical regimen of conduct, it was more or less saturated with Roman law. Like

all the great subjects of modern thought, it was originally incorporated with theology. The science of Moral

Theology, as it was at first called, and as it is still designated by the Roman Catholic divines, was

undoubtedly constructed, to the full knowledge of its authors, by takin principles of conduct from the system

of the Church, and by using the language and methods of jurisprudence for their expression and expansion.

While this process went on, it was inevitable that jurisprudence, though merely intended to be the vehicle of

thought, should communicate its colour to the thought itself. The tinge received through contact with legal

conceptions is perfectly perceptible in the earliest ethical literature of the modern world, and it is evident, I

think, that the Law of Contract, based as it is on the complete reciprocity and indissoluble connection of

rights and duties, has acted as a wholesome corrective to the predispositions of writers who, if left to

themselves, might have exclusively viewed a moral obligation as the public duty of a citizen in the Civitas

Dei. But the amount of Roman Law in moral theology becomes sensibly smaller at the time of its cultivation

by the great Spanish moralists. Moral theology, developed by the juridical method of doctor commenting on

doctor, provided itself with a phraseology of its own, and Aristotelian peculiarities of reasoning and

expression, imbibed doubtless in great part from the Disputations on Morals in the academical schools, take

the place of that special turn of thought and speech which can never be mistaken by any person conversant

with the Roman law. If the credit of the Spanish school of moral theologians had continued, the juridical

ingredient in ethical science would have been insignificant, but the use made of their conclusions by the next

generation of Roman Catholic writers on these subjects almost entirely destroyed their influence. Moral

Theology, degraded into Casuistry, lost all interest for the leaders of European speculation; and the new

science of Moral Philosophy, which was entirely in the hands of the Protestants, swerved greatly aside from

the path which the moral theologians had followed. The effect was vastly to increase the influence of Roman

"Shortly(1*) after the Reformation, we find two great schools of thought dividing this class of subjects

between them. The most influential of the two was at first the sect of school known to us as the Casuists, all

of them in spiritual communion with the Roman Catholic Church, and nearly all of them affiliated to one or

other of her religious orders. On the other side were a body of writer connected with each other by a common

intellectual descent from the great author of the treatise De Jure Belli et Pacis, Hugo Grotius. Almost all of

the latter were adherents of the Reformation, and though it cannot be said that they were formally and

avowedly at conflict with the Casuists, the origin and object of their system were nevertheless essentially

different from those of Casuistry. It is necessary to call attention to this difference, because it involves the

question of the influence of Roman law on that department of thought with which both systems are

concerned. The book of Grotius, though it touches questions of pure Ethics in every page, and though it is the

parent immediate or remote of innumerable volumes of formal morality, is not, as is well known, a professed

treatise on Moral Philosophy; it is an attempt to determine the Law of Nature, or Natural Law. Now, without

entering upon the question, whether the conception of a Law Natural be not exclusively a creation of the

Roman jurisconsults, we may lay down that, even on the admission of Grotius himself, the dicta of the

Roman jurisprudence as to what parts of known positive law must be taken to be parts of the Law of Nature,

are, if not infallible, to be received at all events with the profoundest respect. Hence the system of Grotius is

implicated with Roman law at its very foundation, and this connection rendered inevitable what the legal

training of the writer would perhaps have entailed without it the free employment in every paragraph of

technical phraseology, and of modes of reasoning, defining, and illustrating, which must sometimes conceal

the sense, and almost always the force and cogency, of the argument from the reader who is unfamiliar with

the sources whence they have been derived. On the other hand, Casuistry borrows little from Roman law, and

the views of morality contended for have nothing whatever in common with the undertaking of Grotius. All

that philosophy of right and wrong which has become famous, or infamous, under the name of Casuistry, had

its origin in the distinction between Mortal and Venial Sin. A natural anxiety to escape the awful

consequences of determining a particular act to be mortally sinful, and a desire, equally intelligible, to assist

the Roman Catholic Church in its conflict with Protestantism by disburthening it of an inconvenient theory,

were the motives which impelled the authors of the Casuistical philosophy to the invention of an elaborate

system of criteria, intended to remove immoral actions, in as many cases as possible, out of the category of

mortal offences, and to stamp them as venial sins. The fate of this experiment is matter of ordinary history.

We know that the distinctions of Casuistry, by enabling the priesthood to adjust spiritual control to all the

varieties of human character, did really confer on it an influence with princes, statesmen, and generals,

unheard of in the ages before the Reformation, and did really contribute largely to that great reaction which

checked and narrowed the first successes of Protestantism. But beginning in the attempt, not to establish, but

to evade not to discover a principle, but to escape a postulate not to settle the nature of right and

wrong, but to determine what was not wrong of a particular nature, Casuistry went on with its dexterous

refinements till it ended in so attenuating the moral features of actions, and so belying the moral instincts of

Our being, that at length the conscience of mankind rose suddenly in revolt against it, and consigned to one

common ruin the system and its doctors. The blow, long pending, was finally struck in the Provincial Letters

of Pascal, and since the appearance of those memorable Papers, no moralist of the smallest influence or credit

has ever avowedly conducted his speculations in the footsteps of the Casuists. The whole field of ethical

science was thus left at the exclusive command of the writers who followed Grotius; and it still exhibits in an

extraordinary degree the traces of that entanglement with Roman law which is sometimes imputed as a fault,

and sometimes the highest of its recommendations, to the Grotian theory Many inquirers since Grotius's day

have modified his principles, and many, of course, since the rise of the Critical Philosophy, have quite

deserted them; but even those who have departed most widely from his fundamental assumptions have

inherited much of his method of statement, of his train of thought, and of his mode of illustration; and these

have little meaning and no point to the person ignorant of Roman jurisprudence."

I have already said that, with the exception of the physical sciences, there is no walk of knowledge which has

been so slightly affected by Roman law as Metaphysics. The reason is that discussion on metaphysical

subjects has always been conducted in Greek, first in pure Greek, and afterwards in a dialect of Latin

expressly constructed to give expression to Greek conceptions. The modern languages have only been fitted

to metaphysical inquiries by adopting this Latin dialect, or by imitating the process which was originally

followed in its formation. The source of the phraseology which has been always employed for metaphysical

discussion in modern times was the Latin translations of Aristotle, in which, whether derived or not from

Arabic versions, the plan of the translator was not to seek for analogous expressions in any part of Latin

literature, but to construct anew from Latin roots a set of phrases equal to the expression of Greek

philosophical ideas. Over such a process the terminology of Roman law can have exercised little influence; at

most, a few Latin law terms in a transmuted shape have made their way into metaphysical language. At the

same time it is worthy of remark that whenever the problems of metaphysics are those which have been most

strongly agitated in Western Europe, the thought, if not the language, betrays a legal parentage. Few things in

the history of speculation are more impressive than the fact that no Greekspeaking people has ever felt itself

seriously perplexed by the great question of Freewill 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 Freewill arises when we contemplate a

metaphysical conception under a legal aspect. How came it to be a question whether invariable sequence was

identical with necessary connection? I can only say that the tendency of Roman law, which became stronger

as it advanced, was to look upon legal consequences as united to legal causes by an inexorable necessity, a

tendency most markedly exemplified in the definition of Obligation which I have repeatedly cited, "Juris

But the problem of Freewill was theological before it became philosophical, and, if its terms have been

affected by jurisprudence, it will be because Jurisprudence had made itself felt in Theology. The great point

of inquiry which is here suggested has never been satisfactorily elucidated. What has to be determined, is

whether jurisprudence has ever served as the medium through which theological principles have been

viewed; whether, by supplying a peculiar language, a peculiar mode of reasoning, and a peculiar solution of

many of the problems of life, it has ever opened new channels in which theological speculation could flow

out and expand itself. For the purpose of giving an answer it is necessary to recollect what is already agreed

upon by the best writers as to the intellectual food which theology first assimilated. It is conceded on all sides

that the earliest language of the Christian Church was Greek, and that the problems to which it first addressed

itself were those for which Greek philosophy in its later forms had prepared the way. Greek metaphysical

literature contained the sole stock of words and ideas out of which the human mind could provide itself with

the means of engaging in the profound controversies as to the Divine Persons, the Divine Substance, and the

Divine Natures. The Latin language and the meagre Latin philosophy were quite unequal to the undertaking,

and accordingly the Western or Latinspeaking provinces of the Empire adopted the conclusions of the East

without disputing or reviewing them. "Latin Christianity," says Dean Milman, "accepted the creed which its

narrow and barren vocabulary could hardly express in adequate terms. Yet, throughout, the adhesion of Rome

and the West was a passive acquiescence in the dogmatic system which had been wrought out by the

profounder theology of the Eastern divines, rather than a vigorous and original examination on her part of

those mysteries. The Latin Church was the scholar as well as the loyal partizan of Athanasius." But when the

separation of East and West became wider, and the Latinspeaking Western Empire began to live with an

intellectual life of its own, its deference to the East was all at once exchanged for the agitation of a number of

questions entirely foreign to Eastern speculation. "While Greek theology (Milman, Latin Christianity,

Preface, 5) went on defining with still more exquisite subtlety the Godhead and the nature of Christ"

"while the interminable controversy still lengthened out and cast forth sect after sect from the enfeebled

community" the Western Church threw itself with passionate ardour into a new order of disputes, the

same which from those days to this have never lost their interest for any family of mankind at any time

included in the Latin communion. The nature of Sin and its transmission by inheritance the debt owed by

man and its vicarious satisfaction the necessity and sufficiency of the Atonement above all the

apparent antagonism between Freewill 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 Greekspeaking from the Latinspeaking provinces there

lie two classes of theological problems so strikingly different from one another? The historians of the Church

have come close upon the solution when they remark that the new problems were more "practical," less

absolutely speculative, than those which had torn Eastern Christianity asunder, but none of them, so far as I

am aware, has quite reached it. I affirm without hesitation that the difference between the two theological

systems is accounted for by the fact that, in passing from the East to the West, theological speculation had

passed from a climate of Greek metaphysics to a climate of Roman law. For some centuries before these

controversies rose into overwhelming importance, all the intellectual activity of the Western Romans had

been expended on jurisprudence exclusively. They had been occupied in applying a peculiar set of principles

to all the combinations in which the circumstances of life are capable of being arranged. No foreign pursuit or

taste called off their attention from this engrossing occupation, and for carrying it on they possessed a

vocabulary as accurate as it was copious, a strict method of reasoning, a stock of general propositions on

conduct more or less verified by experience, and a rigid moral philosophy. It was impossible that they should

not select from the questions indicated by the Christian records those which had some affinity with the order

of speculations to which they were accustomed, and that their manner of dealing with them should borrow

something from their forensic habits. Almost everybody who has knowledge enough of Roman law to

appreciate the Roman penal system, the Roman theory of the obligations established by Contract or Delict,

the Roman view of Debts and of the modes of incurring, extinguishing, and transmitting them, the Roman

notion of the continuance of individual existence by Universal Succession, may be trusted to say whence

arose the frame of mind to which the problems of Western theology proved so congenial, whence came the

phraseology in which these problems were stated, and whence the description of reasoning employed in their

solution. It must only be recollected that Roman law which had worked itself into Western thought was

neither the archaic system of the ancient city, nor the pruned and curtailed jurisprudence of the Byzantine

Emperors; still less, of course, was it the mass of rules, nearly buried in a parasitical overgrowth of modern

speculative doctrine, which passes by the name of Modern Civil Law. I speak only of that philosophy of

jurisprudence, wrought out by the great juridical thinkers of the Antonine age, which may. still be partially

reproduced from the Pandects of Justinian, a system to which few faults can be attributed except it perhaps

aimed at a higher degree of elegance, certainty, and precision, than human affairs will permit to the limits

It is a singular result of that ignorance of Roman law which Englishmen readily confess, and of which they

are sometimes not ashamed to boast, that many English writers of note and credit have been led by it to put

forward the most untenable of paradoxes concerning the condition of human intellect during the Roman

Empire. It has been constantly asserted, As unhesitatingly as if there were no temerity in advancing the

proposition, that from the close of the Augustan era to the general awakening of interest on the points of the

Christian faith, the mental energies of the civilised world were smitten with a paralysis. Now there are two

subjects of thought the only two perhaps with the exception of physical science which are able to give

employment to all the Powers and capacities which the mind possesses. One of them is Metaphysical inquiry,

which knows no limits so long as the mind is satisfied to work on itself; the other is law, which is as

extensive as the concerns of mankind. It happens that, during the very period indicated, the Greekspeaking

provinces were devoted to one, the Latin Speaking provinces to the other, of these studies. I say nothing of

the fruits of speculation in Alexandria and the East, but I confidently affirm that Rome and the West had an

occupation in hand fully capable of compensating them for the absence of every other mental exercise, and I

add that the results achieved, so far as we know them, were not unworthy of the continuous and exclusive

labour bestowed on producing them. Nobody except a professional lawyer is perhaps in a position completely

to understand how much of the intellectual strength of individuals Law is capable of absorbing, but a layman

has no difficulty in comprehending why it was that an unusual share of the collective intellect of Rome was

engrossed by jurisprudence. "The proficiency (2*) of a given community in jurisprudence depends in the long

run on the same conditions as its progress in any other line of inquiry; and the chief of these are the

proportion of the national intellect devoted to it, and the length of time during which it is so devoted. Now, a

combination of all the causes, direct and indirect, which contribute to the advancing and perfecting of a

science continued to operate on the jurisprudence of Rome through the entire space between the Twelve

Tables and the severance of the two Empires, and that not irregularly or at intervals, but in steadily

increasing force and constantly augmenting number. We should reflect that the earliest intellectual exercise to

which a young nation devotes itself is the study of its laws. As soon as the mind makes its first conscious

efforts towards generalisation, the concerns of everyday life are the first to press for inclusion within

general rules and comprehensive formulas. The popularity of the pursuit on which all the energies of the

young commonwealth are bent is at the outset unbounded; but it ceases in time. The monopoly of mind by

law is broken down. The crowd at the morning audience of the great Roman jurisconsult lessens. The

students are counted by hundreds instead of thousands in the English Inns of Court. Art, Literature, Science,

and Politics, claim their share of the national intellect; and the practice of jurisprudence is confined within the

circle of a profession, never indeed limited or insignificant, but attracted as much by the rewards as by the

intrinsic recommendations of their science. This succession of changes exhibited itself even more strikingly

at Rome than in England. To the close of the Republic the law was the sole field for all ability except the

special talent of a capacity for generalship. But a new stage of intellectual progress began with the Augustan

age, as it did with our own Elizabethan era. We all know what were its achievements in poetry and prose; but

there are some indications, it should be remarked, that, besides its efflorescence in ornamental literature, it

was on the eve of throwing out new aptitude for conquest in physical science. Here, however, is the point at

which the history of mind in the Roman State ceases to be parallel to the routes which mental progress had

since then pursued. The brief span of Roman literature, strictly so called, was suddenly closed under a variety

of influences, which though they may partially be traced it would be improper in this place to analyse.

Ancient intellect was forcibly thrust back into its old courses, and law again became no less exclusively the

proper sphere for talent than it had been in the days when the Romans despised philosophy and poetry as the

toys of a childish race. Of what nature were the external inducements which, during the Imperial period,

tended to draw a man of inherent capacity to the pursuits of the jurisconsult may best be understood by

considering the option which was practically before him in his choice of a profession. He might become a

teacher of rhetoric, a commander of frontierposts, or a professional writer of panegyrics. The only other

walk of active life which was open to him was the practice of the law. Through that lay the approach to

wealth, to fame, to office, to the councilchamber of the monarch it may be to the very throne itself."

The premium on the study of jurisprudence was so enormous that there were schools of law in every part of

the Empire, even in the very domain of Metaphysics. But, though the transfer of the seat of empire to

Byzantium gave a perceptible impetus to its cultivation in the East, jurisprudence never dethroned the

pursuits which there competed with it. Its language was Latin, an exotic dialect in the Eastern half of the

Empire. It is only of the West that we can lay down that law was not only the mental food of the ambitious

and aspiring, but the sole aliment of all intellectual activity. Greek philosophy had never been more than a

transient fashionable taste with the educated class of Rome itself, and when the new Eastern capital had been

created, and the Empire subsequently divided into two, the divorce of the Western provinces from Greek

speculation, and their exclusive devotion to jurisprudence, became more decided than ever. As soon then as

they ceased to sit at the feet of the Greeks and began to ponder out a theology of their own, the theology

proved to be permeated with forensic ideas and couched in a forensic phraseology. It is certain that this

substratum of law in Western theology lies exceedingly deep. A new set of Greek theories, the Aristotelian

philosophy, made their way afterwards into the West and almost entirely buried its indigenous doctrines. But

when at the Reformation it partially shook itself free from their influence, it instantly supplied their place

with Law. It is difficult to say whether the religious system of Calvin or the religious system of the Arminians

The vast influence of the specific jurisprudence of Contract produced by the Romans upon the corresponding

department of modern Law belongs rather to the history of mature juris prudence than to a treatise like the

present. It did not make itself felt till the school of Bologna founded the legal science of modern Europe. But

the fact that the Romans, before their Empire fell, had so fully developed the conception of Contract becomes

of importance at a much earlier period than this. Feudalism, I have repeatedly asserted, was a compound of

archaic barbarian usage with Roman law; no other explanation of it is tenable, or even intelligible. The

earliest social forms of the feudal period differ in little from the ordinary associations in which the men of

primitive civilisations are everywhere seen united. A Fief was an organically complete brotherhood of

associates whose proprietary and personal rights were inextricably blended together. It had much in common

with an Indian Village Community and much in common with a Highland clan. But still it presents some

phenomena which we never find in the associations which are spontaneously formed by beginners in

civilisation. True archaic communities are held together not by express rules, but by sentiment, or, we should

perhaps say, by instinct; and new comers into the brotherhood are brought within the range of this instinct by

falsely pretending to share in the blood relationship from which it naturally springs. But the earliest feudal

communities were neither bound together by mere sentiment nor recruited by a fiction. The tie which united

them was Contract, and they obtained new associates by contracting with them. The relation of the lord to the

vassals had originally been settled by express engagement, and a person wishing to engraft himself on the

brotherhood by commendation or infeudation came to a distinct understanding as to the conditions on which

he was to be admitted. It is therefore the sphere occupied in them by Contract which principally distinguishes

the feudal institutions from the unadulterated usages of primitive races. The lord had many of the

characteristics of a patriarchal chieftain, but his prerogative was limited by a variety of settled customs

traceable to the express conditions which had been agreed upon when the infeudation took place. Hence flow

the chief differences which forbid us to class the feudal societies with true archaic communities. They were

much more durable and much more various; more durable, because express rules art less destructible than

instinctive habits, and more various, because the contracts on which they were founded were adjusted to the

minutest circumstances and wishes of the persons who surrendered or granted away their lands. This last

consideration may serve to indicate how greatly the vulgar opinions current among us as to the origin of

modern society stand in need of revision. It is often said that the irregular and various contour of modern

civilisation is due to the exuberant and erratic genius of the Germanic races, and it is often contrasted with the

dull routine of the Roman Empire. The truth is that the Empire bequeathed to modern society the legal

conception to which all this irregularity is attributable; if the customs and institutions of barbarians have one

characteristic more striking than another, it is their extreme uniformity. NOTES: 1. The passage quoted is

transcribed with slight alterations from a paper contributed by the author to the Cambridge Essays for 1856.

The Teutonic Codes, including those of our AngloSaxon ancestors, are the only bodies of archaic secular

law which have come down to us in such a state that we can form an exact notion of their original

dimensions. Although the extant fragments of Roman and Hellenic codes suffice to prove to us their general

character, there does not remain enough of them for us to be quite sure of their precise magnitude or of the

proportion of their parts to each other. But still on the whole all the known collections of ancient law are

characterised by a feature which broadly distinguishes them from systems of mature jurisprudence. The

proportion of criminal to civil law is exceedingly different. In the German codes, the civil part of the law has

trifling dimensions as compared with the criminal. The traditions which speak of the sanguinary penalties

inflicted by the code of Draco seem to indicate that it had the same characteristic. In the Twelve Tables alone,

produced by a society of greater legal genius and at first of gentler manners, the civil law has something like

its modern precedence; but the relative amount of space given to the modes of redressing wrong, though not

enormous, appears to have been large. It may be laid down, I think, that the more archaic the code, the fuller

and the minuter is its penal legislation. The phenomenon has often been observed, and has been explained, no

doubt to a great extent correctly, by the Violence habitual to the communities which for the first time reduced

their laws to writing. The legislator, it is said, proportioned the divisions of his work to the frequency of a

certain class of incidents in barbarian life. I imagine, however, that this account is not quite complete. It

should be recollected that the comparative barrenness of civil law in archaic collections is consistent with

those other characteristics of ancient jurisprudence which have been discussed in this treatise. Ninetenths of

the civil part of the law practised by civilised societies are made up of the Law of Persons, of the Law of

Property and of inheritance, and of the Law of Contract. But it is plain that all these provinces of

jurisprudence must shrink within narrower boundaries, the nearer we make our approaches to the infancy of

social brotherhood. The Law of Persons, which is nothing else than the Law of Status, will be restricted to the

scantiest limits as long as all forms of Status are merged in common subjection to Paternal Power, as long as

the Wife has no rights against her Husband, the Son none against his Father; and the infant Ward none

against the Agnates who are his Guardians. Similarly, the rules relating to Property and Succession can never

be plentiful, so long as land and goods devolve within the family, and, if distributed at all, are distributed

inside its circle. But the greatest gap in ancient civil law will always be caused by the absence of Contract,

which some archaic codes do not mention at all, while others significantly attest the immaturity of the moral

notions on which Contract depends by supplying its place with an elaborate jurisprudence of Oaths. There are

no corresponding reasons for the poverty of penal law, and accordingly, even if it be hazardous to pronounce

that the childhood of nations is always a period of ungoverned violence, we shall still be able to understand

why the modem relation of criminal law to civil should be inverted in ancient. codes.

I have spoken of primitive jurisprudence as giving to criminal law a priority unknown in a later age. The

expression has been used for convenience' sake, but in fact the inspection of ancient codes shows that the law

which they exhibit in unusual quantities is not true criminal law. All civilised systems agree in drawing a

distinction between offences against the State or Community and offences against the Individual, and the two

classes of injuries, thus kept apart, I may here, without pretending that the terms have always been employed

consistently in jurisprudence, call Crimes and Wrongs, crimina and delicta. Now the penal law of ancient

communities is not the law of Crimes; it is the law of Wrongs, or, to use the English technical word, of Torts.

The person injured proceeds against the wrongdoer by an ordinary civil action, and recovers compensation

in the shape of moneydamages if he succeeds. If the Commentaries of Gaius be opened at the place where

the writer treats of the penal jurisprudence founded on the Twelve Tables, it will be seen that at the head of

the civil wrongs recognised by the Roman law stood Furtum or Theft. Offences which we are accustomed to

regard exclusively as crimes are exclusively treated as torts, and not theft only, but assault and violent

robbery, are associated by the jurisconsult with trespass, libel and slander. All alike gave rise to an Obligation

or vinculum juris, and were all requited by a payment of money. This peculiarity, however, is most strongly

brought out in the consolidated Laws of the Germanic tribes. Without an exception, they describe an

immense system of money compensations for homicide, and with few exceptions, as large a scheme of

compensations for minor injuries. "Under AngloSaxon law," writes Mr. Kemble (AngloSaxons, i. 177), "a

sum was placed on the life of every free man, according to his rank, and a corresponding sum on every

wound that could be inflicted on his person, for nearly every injury that could be done to his civil rights,

honour or peace; the sum being aggravated according to adventitious circumstances." These compositions are

evidently regarded as a valuable source of income; highly complex rules regulate the title to them and the

responsibility for them; and, as I have already had occasion to state, they often follow a very peculiar line of

devolution, if they have not been acquitted at the decease of the person to whom they belong. If therefore the

criterion of a delict, wrong, or tort be that the person who suffers it, and not the State, is conceived to be

wronged, it may be asserted that in the infancy of jurisprudence the citizen depends for protection against

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

nonChristian bodies of archaic law entail penal consequences on certain classes of acts and on certain

classes of omissions, as being violations of divine prescriptions and commands. The law administered at

Athens by the Senate of Areopagus was probably a special religious code, and at Rome, apparently from a

very early period, the Pontifical jurisprudence punished adultery, sacrilege and perhaps murder. There were

therefore in the Athenian and in the Roman States laws punishing sins. There were also laws punishing torts.

The conception of offence against God produced the first class of ordinances; the conception of offence

against one's neighbour produced the second; but the idea of offence against the State or aggregate

Yet it is not to be supposed that a conception so simple and elementary as that of wrong done to the State was

wanting in any primitive society. It seems rather that the very distinctness with which this conception is

realised is the true cause which at first prevents the growth of a criminal law At all events, when the Roman

community conceived itself to be injured, the analogy of a personal wrong received was carried out to its

consequences with absolute literalness, and the State avenged itself by a single act on the individual

wrongdoer. The result was that, in the infancy of the commonwealth, every offence vitally touching its

security or its interests was punished by a separate enactment of the legislature. And this is the earliest

conception of a crimen or Crime an act involving such high issues that the State, instead of leaving its

cognisance to the civil tribunal or the religious court, directed a special law or privilegium against the

perpetrator. Every indictment therefore took the form of a bill of pains and penalties, and the trial of a

criminal was a proceeding wholly extraordinary, wholly irregular, wholly independent of settled rules and

fixed conditions. Consequently, both for the reason that the tribunal dispensing justice was the sovereign state

itself and also for the reason that no classification of the acts prescribed or forbidden was possible, there was

not at this epoch any Law of crimes, any criminal jurisprudence. The procedure was identical with the forms

of passing an ordinary statute; it was set in motion by the same persons and conducted with precisely the

same solemnities. And it is to be observed that, when a regular criminal law with an apparatus of Courts and

officers for its administration had afterwards come into being, the old procedure, as might be supposed from

its conformity with theory, still in strictness remained practicable; and, much as resort to such an expedient

was discredited, the people of Rome always retained the power of punishing by a special law offences against

its majesty. The classical scholar does not require to be reminded that in exactly the same manner the

Athenian Bill of Pains and Penalties, or, 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

It may be thought that the difference which I have asserted to exist between the ancient and modern view of

penal law has only a verbal existence. The community it may be said, besides interposing to punish crimes

legislatively, has from the earliest times interfered by its tribunals to compel the wrong doer to compound for

his wrong, and, if it does this, it must always have supposed that in some way it was injured through his

offence. But, however rigorous this inference may seem to us 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 interferences of the State through its tribunals, is shown by the curious circumstances that in

the original administration of justice, the proceedings were a close imitation of the series of acts which were

likely to be gone through in private life by persons who were disputing, but who afterwards suffered their

quarrel to be appeased. The magistrate carefully simulated the demeanour of a private arbitrator casually

In order to show that this statement is not a mere fanciful conceit, I will produce the evidence on which it

rests. Very far the most ancient judicial proceeding known to us is the Legis Actio Sacramenti of the Romans,

out of which all the later Roman Law of Actions may be proved to have grown. Gaius carefully describes its

ceremonial. Unmeaning and grotesque as it appears at first sight, a little attention enables us to decipher and

The subject of litigation is supposed to be. in Court. If it is moveable, it is actually there. If it be immoveable,

a fragment or sample of it is brought in its place; land, for instance, is represented by a clod, a house by a

single brick. In the example selected by Gaius, the suit is for a slave. The proceeding begins by the plaintiff's

advancing with a rod, which, as Gaius expressly tells, symbolised a spear. He lays hold of the slave and

asserts a right to him with the words, "Hunc ego hominem ex Jure Quiritium meum esse dico secundum suam

causam sicut dixi." and then saying, "Ecce tibi Vindictam imposui," he touches him with the spear. The

defendant goes through the same series of acts and gestures. On this the Praetor 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 qua ex causa vindicaveris." a question which is replied to

by a fresh assertion of right, "Jus peregi sicut vindictam imposui." On this, the first claimant offers to stake a

sum of money, called a Sacramentum, on the justice of his own case, "Quando tu injuria provocasti, Daeris

Sacramento te provoco," and the defendant, in the phrase "Similiter ego te," accepts the wager. The

subsequent proceedings were no longer of a formal kind, but it is to be observed that the Praetor took security

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 Praetor, vir pietate gravis, happens to be going by, and interposes to stop

the contest. The disputants state their case to him, and agree that he shall arbitrate between them, it being

arranged that the loser, besides resigning the subject of the quarrel, shall pay a sum of money to the umpire as

remuneration for his trouble and loss of time. This interpretation would be less plausible than it is, were it not

that, by a surprising coincidence, the ceremony described by Gaius as the imperative course of proceeding in

a Legis Actio is substantially the same with one of the two subjects which the God Hephaestus is described

by Homer as moulding into the First Compartment of the Shield of Achilles. In the Homeric trialscene, the

dispute, as if expressly intended to bring out the characteristics of primitive society, is not about property but

about the composition for a homicide. One person asserts that he has paid it, the other that he has never

received it. The point of detail, however, which stamps the picture as the counterpart of the archaic Roman

practice is the reward designed for the judges. Two talents of gold lie in the middle, to be given to him who

shall explain the grounds of the decision most to the satisfaction of the audience, The magnitude of this sum

as compared with the trifling amount of the Sacramentum seems to me indicative of the indifference between

fluctuating usage and usage consolidated into law. The scene introduced by the poet as a striking and

characteristic, but still only occasional, feature of citylife in the heroic age has stiffened, at the opening of

the history. of civil process, into the regular, ordinary formalities of a lawsuit. It is natural therefore that in the

Legis Actio the remuneration of the Judge should be reduced to a reasonable sum, and that, instead of being

adjudged to one of a number of arbitrators by popular acclamation, it should be paid as a matter of course to

the State which the Praetor 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.

Ancient law furnishes other proofs that the earliest administrators of justice simulated the probable acts of

persons engaged in a private quarrel. In settling the damages to be awarded, they took as their guide the

measure of vengeance likely to be exacted by an aggrieved person under the circumstances of the case. This

is the true explanation of the very different penalties imposed by ancient law on offenders caught in the act or

soon after it and on offenders detected after considerable delay some strange exemplifications of this

peculiarity are supplied by the old Roman law of Theft. The Laws of the Twelve Tables seem to have divided

Thefts into Manifest and NonManifest, and to have allotted. extraordinarily different penalties to the offence

according as it fell under one head or the other. The Manifest Thief was he who was caught within the house

in which he had been pilfering, or who was taken while making off to a place of safety with the stolen goods;

the Twelve Tables condemned him to be put to death if he were already a slave, and, if he was a freeman,

they made him the bondsman of the owner of the property. The NonManifest Thief was he who was

detected under any other circumstances than those described; and the old code simply directed that an

offender of this sort should refund double the value of what he had stolen. In Gaius's day the excessive

severity of the Twelve Tables to the Manifest Thief had naturally been much mitigated, but the law still

maintained the old principle by mulcting him in fourfold the value of the stolen goods, while the

NonManifest 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 AngloSaxon 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 modem administrator of justice has confessedly one

of the hardest tasks before him when he undertakes to discriminate between the degrees of criminality which

belong to offences falling within the same technical description. It is always easy to say that a man is guilty

of manslaughter, larceny, or bigamy, but it is often most difficult to pronounce what extent of moral guilt he

has incurred, and consequently what measure of punishment he has deserved. There is hardly any perplexity

in casuistry, or in the analysis of motive, which we may not be called upon to confront, if we attempt to settle

such a point with precision; and accordingly the law of our day shows an increasing tendency to abstain as

much as possible from laying down positive rules on the subject. In France, the jury is left to decide whether

the offence which it finds committed has been attended by extenuating circumstances; in England, a nearly

unbounded latitude in the selection of punishments is now allowed to the judge; while all States have in

reserve an ultimate remedy for the miscarriages of law in the Prerogative of Pardon, universally lodged with

the Chief Magistrate. It is curious to observe how little the men of primitive times were troubled with these

scruples, how completely they were persuaded that the impulses of the injured person were the proper

measure of the vengeance he was entitled to exact, and how literally they imitated the probable rise and fall

of his passions in fixing their scale of punishment. I wish it could be said that their method of legislation is

quite extinct. There are, however, several modern systems of law which, in cases of graver wrong, admit the

fact of the wrong doer leaving been taken in the act to be pleaded in justification of inordinate punishment

inflicted on them by the suffereran indulgence which, though superficially regarded it may seem intelligible,

Nothing, I have said, can be simpler than the considerations which ultimately led ancient societies to the

formation of a true criminal jurisprudence. The State conceived itself to be wronged, and the Popular

Assembly struck straight at the offender with the same movement which accompanied its legislative action. it

is further true of the ancient world though not precisely of the modern, as I shall have occasion to point out

that the earliest criminal tribunals were merely subdivisions, or committees, of the legislature. This, at all

events, is the conclusion pointed at by the legal history of the two great states of antiquity, with tolerable

clearness in one case, and with absolute distinctness in the other. The primitive penal law of Athens entrusted

the castigation of offences partly to the Archons, who seem to have punished them as torts, and partly to the

Senate of Areopagus, which punished them as sins. Both jurisdictions were substantially transferred in the

end to the Heliaea, the High Court of Popular Justice, and the functions of the Archons and of the Areopagus

became either merely ministerial or quite insignificant. But "Heliaea" is only an old word for Assembly; the

Heliaea 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 Quaestio or

Commission, which bore much the same relation to the Assembly as a Committee of the House of Commons

bears to the House itself, except that the Roman Commissioners or Quaestores did not merely report to the

Comitia, but exercised all powers which that body was itself in the habit of exercising, even to the passing

sentence on the Accused. A Quaestio of this sort was only appointed to try a particular offender, but there

was nothing to prevent two or three Quaestiones sitting at the same time; and it is probable that several of

them were appointed simultaneously, when several grave cases of wrong to the community had occurred

together. There are also indications that now and then these Quaestiones 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 Quaestores 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 paricide and murder, seem to have been appointed regularly every year; and the Duumviri Perduellionis, or

Commission of Two for trial of violent injury to the Commonwealth, are also believed by most writers to

have been named periodically. The delegations of power to these latter functionaries bring us some way

forwards. instead of being appointed when and as stateoffences 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

The true criminal law did not however come into existence till the year B.C. 149, when L. Calpurnius Piso

carried the statute known as the Lex Calpurnia de Repetundis. The law applied to cases Repetundarum

Pecuniarum, that is, claims by Provincials to recover monies improperly received by a GovernorGeneral,

but the great and permanent importance of this statute arose from its establishing the first Quaestio Perpetua.

A Quaestio Perpetua was a Permanent Commission as opposed to those which were occasional and to those

which were temporary. It was a 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 Quaestiones, 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 Quaestio 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,

The primitive history of criminal law divides itself therefore into four stages. Understanding that the

conception of Crime, as distinguished from that of Wrong or Tort and from that of Sin, involves the idea of

injury to the State or collective community, we first find that the commonwealth, in literal conformity with

the conception, itself interposed directly, and by isolated acts, to avenge itself on the author of the evil which

it had suffered. This is the point from which we start; each indictment is now a bill of pains and penalties, a

special law naming the criminal and prescribing his punishment. A second step is accomplished, when the

multiplicity of crimes compels the legislature to delegate its powers to particular Quaestiones or

Commissions, each of which is deputed to investigate a particular accusation, and if it be proved, to punish

the particular offender. Yet another movement is made when the legislature, instead of waiting for the alleged

commission of a crime as the occasion of appointing a Quaestio, periodically nominates Commissioners like

the Quaestores Parricidii and the Duumviri Perduellionis, on the chance of certain classes of crimes being

committed, and in the expectation that they will be perpetrated. The last stage is reached when the

Quaestiones from being periodical or occasional become permanent Benches or Chamberswhen the judges,

instead of being named in the particular law nominating the Commission, are directed to be chosen through

all future time in a particular way and from a particular class and when certain acts are described in general

language and declared to be crimes, to be visited, in the event of their perpetration, with specified penalties

If the Quaestiones Perpetuae had had a longer history, they would doubtless have come to be regarded as a

distinct institution, and their relation to the Comitia would have seemed no closer than the connection of our

own Courts of Law with the Sovereign, who is theoretically the fountain of justice. But the imperial

despotism destroyed them before their origin had been completely forgotten, and, so long as they lasted, these

Permanent Commissions were looked upon by the Romans as the mere depositaries of a delegated power.

The cognisance of crimes was considered a natural attribute of the legislature, and the mind of the citizen

never ceased to be carried back from the Quaestiones, to the Comitia which had deputed them to put into

exercise some of its own inalienable functions. The view which regarded the Quaestiones, even when they

became permanent, as mere Committees of the Popular Assembly as bodies which only ministered to a

higher authority had some important legal consequences which left their mark on the criminal law to the

very latest period. One immediate result was that the Comitia continued to exercise criminal jurisdiction by

way of bill of pains and penalties, long after the Quaestiones 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 Quaestiones went on trying and punishing offenders side by side;

and any unusual outburst of popular indignation was sure, until the extinction of the Republic, to call down

One of the most remarkable peculiarities of the institutions of the Republic is also traceable to this

dependance of the Quaestiones on the Comitia. The disappearance of the punishment of death from the penal

system of Republican Rome used to be a very favourite topic with the writers of the last century, who were

perpetually using it to point some theory of the Roman character or of modem 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 knownthe 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 coordinate

powers, it was easy to prefer indictments for graver crimes before the legislative body which dispensed the

heavier penalties; but then it happened that the more democratic assembly, that of the Tribes, almost entirely

superseded the others, and became the ordinary legislature of the later Republic. Now the decline of the

Republic was exactly the period during which the Quaestiones Perpetuae were established, so that the statutes

creating them were all passed by a legislative assembly which itself could not, at its ordinary sittings, punish

a criminal with death. It followed that the Permanent judicial Commissions, holding a delegated authority,

were circumscribed in their attributes and capacities by the limits of the powers residing with the body which

deputed them. They could do nothing which the Assembly of the Tribes could not have done; and, as the

Assembly could not sentence to death, the Quaestiones were equally incompetent to award capital

punishment. The anomaly thus resulting was not viewed in ancient times with anything like the favour which

it has attracted among the moderns, and indeed, while it is questionable whether the Roman character was at

all the better for it, it is certain that the Roman Constitution was a great deal the worse. Like every other

institution which has accompanied the human race down the current of its history, the punishment of death is

a necessity of society in certain stages of the civilising process. There is a time when the attempt to dispense

with it baulks both of the two great instincts which lie at the root of all penal law. Without it, the community

neither feels that it is sufficiently revenged on the criminal, nor thinks that the example of his punishment is

adequate to deter others from imitating him. The incompetence of the Roman Tribunals to pass sentence of

death led distinctly and directly to those frightful Revolutionary intervals, known as the Proscriptions, during

which all law was formally suspended simply because party violence could find no other avenue to the

vengeance for which it was thirsting. No cause contributed so powerfully to the decay of political capacity in

the Roman people as this periodical abeyance of the laws; and, when it had once been resorted to, we need

not hesitate to assert that the ruin of Roman liberty became merely a question of time. If the practice of the

Tribunals had afforded an adequate vent for popular passion, the forms of judiciAl procedure would no doubt

have been as flagrantly perverted as with us in the reigns of the later Stuarts, but national character would not

have suffered as deeply as it did, nor would the stability of Roman institutions have been as seriously

I will mention two more singularities of the Roman Criminal System which were produced by the same

theory of judicial authority. They are, the extreme multiplicity of the Roman criminal tribunals, and the

capricious and anomalous classification of crimes which characterised Roman penal jurisprudence throughout

its entire history. Every Quaestio, it has been said, whether Perpetual or otherwise, had its origin in a distinct

statute. From the law which created it, it derived its authority; it rigorously observed the limits which its

charter prescribed to it, and touched no form of criminality which that charter did not expressly define. As

then the statutes which constituted the various Quaestiones 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 Quaestiones to administer them; nor was any attempt made during

the Republic to fuse these distinct judicial bodies into one, or to give symmetry to the provisions of the

statutes which appointed them and defined their duties. The state of the Roman criminal jurisdiction at this

period, exhibited some resemblances to the administration of civil remedies in England at the time when the

English Courts of Common Law had not as yet introduced those fictitious averments into their writs which

enabled them to trespass on each other's peculiar province. Like the Quaestiones, the Courts of Queen's

Bench, Common Pleas, and Exchequer were all theoretical emanations from a higher authority, and each

entertained a special class of cases supposed to be committed to it by the fountain of its jurisdiction; but then

the Roman Quaestiones were many more than three in number, and it was infinitely less easy to discriminate

the acts which fell under the cognisance of each Quaestio, than to distinguish between the provinces of the

three Courts in Westminster Hall. The difficulty of drawing exact lines between the spheres of the different

Quaestiones made the multiplicity of Roman tribunals something more than a mere inconvenience; for we

read with astonishment that when it was not immediately clear under what general description a man's alleged

offences ranged themselves, he might be indicted at once or successively before several different

Commissions, on the chance of some one of them declaring itself competent to convict him; and, although

conviction by one Quaestio ousted the jurisdiction of the rest, acquittal by one of them could not be pleaded

to an accusation before another. This was directly contrary to the rule of the Roman civil law; and we may be

sure that a people so sensitive as the Romans to anomalies (or, as their significant phrase was, to

inelegancies) in jurisprudence, would not long have tolerated it, had not the melancholy history of the

Quaestiones caused them to be regarded much more as temporary weapons in the hands of factions than as

permanent institutions for the correction of crime. The Emperors soon abolished this multiplicity and conflict

of jurisdiction; but it is remarkable that they did not remove another singularity of the criminal law which

stands in close connection with the number of the Courts. The classifications of crimes which are contained

even in the Corpus Juris of Justinian are remarkably capricious. Each Quaestio had, in fact, confined itself to

the crimes committed to its cognisance by its charter. These crimes, however, were only classed together in

the original statute because they happened to call simultaneously for castigation at the moment of passing it.

They had not therefore anything necessarily in common; but the fact of their constituting the particular

subjectmatter of trials before a particular Quaestio impressed itself naturally on the public attention, and so

inveterate did the association become between the offences mentioned in the same statute that, even when

formal attempts were made by Sylla and by the Emperor Augustus to consolidate the Roman criminal law the

legislator preserved the old grouping. The Statutes of Sylla and Augustus were the foundation of the penal

jurisprudence of the Empire, and nothing can be more extraordinary than some of the classifications which

they bequeathed to it. I need only give a single example in the fact that perjury was always classed with

cutting and wounding and with poisoning, no doubt because a law of Sylla, the Lex Cornelia de Sicariis et

Veneficis, had given jurisdiction over all these three forms of crime to the same Permanent Commission. It

seems too that this capricious grouping of crimes affected the vernacular speech of the Romans. People

naturally fell into the habit of designating all the offences enumerated in one law by the first name on the list,

which doubtless gave its style to the Law Court deputed to try them all. All the offences tried by the Quaestio

I have dwelt on the history and characteristics of the Roman Quaestiones because the formation of a criminal

jurisprudence is nowhere else so instructively exemplified. The last Quaestiones were added by the Emperor

Augustus, and from that time the Romans may be said to have had a tolerably complete criminal law.

Concurrently with its growth, the analogous process had gone on, which I have called the conversion of

Wrongs into Crimes, for though the Roman legislature did not extinguish the civil, remedy for the more

heinous offences, it offered the sufferer a redress which he was sure to prefer. Still, even after Augustus had

completed his legislation, several offences continued to be regarded as Wrongs, which modern societies look

upon exclusively as Crimes; nor did they become criminally punishable till some late but uncertain date, at

which the law began to take notice of a new description of offences called in the Digest 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 this period at which these crimina extraordinaria

were first recognised, the list of crimes in the Roman State must have been as long as in any community of

It is unnecessary to describe with any minuteness the mode of administering criminal justice under the

Roman Empire, but it is to be noted that both its theory and practice have had powerful effect on modern

society. The Emperors did not immediately abolish the Quaestiones, and at first they committed an extensive

criminal jurisdiction to the Senate, in which, however servile it might show itself in fact, the Emperor was no

more nominally. than a Senator like the rest. But some sort of collateral criminal jurisdiction had been

claimed by the Prince from the first; and this, as recollections of the free commonwealth decayed, tended

steadily to gain at the expense of the old tribunals. Gradually the punishment of crimes was transferred to

magistrates directly nominated by the Emperor and the privileges of the Senate passed to the Imperial Privy

Council, which also became a Court of ultimate criminal appeal. Under these influences the doctrine, familiar

to the moderns, insensibly shaped itself that the Sovereign is the fountain of all Justice and the depositary of

all Grace. It was not so much the fruit of increasing adulation and servility as of the centralisation of the

Empire which had by this time perfected itself. The theory of criminal justice had, in fact, worked round

almost to the point from which it started. It had begun in the belief that it was the business of the collective

community to avenge its own wrongs by its own hand; and it ended in the doctrine that the chastisement of

crimes belonged in an especial manner to the Sovereign as representative and mandatary of his people. The

new view differed from the old one chiefly in the air of awfulness and majesty which the guardianship of

This later Roman view of the Sovereign's relation to justice certainly assisted in saving modern societies from

the necessity of travelling through the series of changes which I have illustrated by the history of the

Quaestiones. 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 Caesars, perpetuated by the temporary ascendency of the

House of Charlemagne, were surrounding Sovereigns with a prestige which a mere barbarous chieftain could

never otherwise have acquired and were communicating to the pettiest feudal potentate the character of

guardian of society and representative of the State. On the other hand, the Church, in its anxiety to put a curb

on sanguinary ferocity, sought about for authority to punish the graver misdeeds, and found it in those

passages of Scripture which speak with approval of the powers of punishment committed to the civil

magistrate. The New Testament was appealed to as proving that secular rulers exist for the terror of evildoers;

the Old Testament, as laying down that "Whoso sheddeth man's blood, by man shall his blood be shed."

There can be no doubt, I imagine, that modern ideas on the subject of crime are based upon two assumptions

contended for by the Church in the Dark Agesfirst, that each feudal ruler, in his degree, might be

assimilated to the Roman Magistrates spoken of by Saint Paul; and next, that the offences which he was to

chastise were those selected for prohibition in the Mosaic Commandments, or rather such of them as the

Church did not reserve to her own cognisance. Heresy (supposed to be included in the First and Second

Commandments), Adultery, and Perjury were ecclesiastical offences, and the Church only admitted the

cooperation of the secular arm for the purpose of inflicting severer punishment in cases of extraordinary

aggravation. At the same time, she taught that murder and robbery with their various modifications were

under the jurisdiction of civil rulers, not as an accident of their position but by the express ordinance of God.

There is a passage in the writings of King Alfred (Kemble, ii. 209) which brings out into remarkable

clearness the struggle of the various ideas that prevailed in his day as to the origin of criminal jurisdiction. It

will be seen that Alfred attributes it partly to the authority of the Church and partly to that of the Witan, while

he expressly claims for treason against the lord the same immunity from ordinary rules which the Roman

Law of Majestas had assigned to treason against the Caesar. "After this it happened," he writes, "that many

nations received the faith of Christ, and there were many synods assembled throughout the earth, and among

the English race also after they had received the faith of Christ, both of holy bishops and of their exalted

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

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