Front Page Titles (by Subject) NOTES AND ILLUSTRATIONS. - Dissertations on Early Law and Custom
The Online Library of Liberty
A project of Liberty Fund, Inc.
NOTES AND ILLUSTRATIONS. - Sir Henry Sumner Maine, Dissertations on Early Law and Custom 
Dissertations on Early Law and Custom, chiefly selected from Lectures delivered at Oxford (London: John Murray, 1883).
About Liberty Fund:
Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.
The text is in the public domain.
Fair use statement:
This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit.
NOTES AND ILLUSTRATIONS.
VILLAGE-COMMUNITIES AND MANORS.
Although no question has been more discussed by German and English scholars, the exact mode in which the Manor or Fief arose out of pre-existing social forms is still a very obscure problem. In a work published ten years ago (‘Village Communities in the East and West’), I gave an abridged account of all that was then known or had been conjectured on the subject, but additions are being constantly made to our knowledge—in some small degree, I hope, owing to the book I have named—and much information may be expected from Russia, where the growth of lordships and of the chief incidents of villenage are of relatively recent date, and where there appears to be materials for an authentic history of this social transformation. I trust that Mr. Mackenzie Wallace will not long withhold those results of special investigation which he promised in the preface to his work on Russia. On another aspect of the subject, a forthcoming work of Mr. Frederick Seebohm, which I have had the privilege of seeing, will throw a great deal of light.
This, however, is a walk of investigation in which the caution given in a Note on ‘The Gens’ to Chapter VIII. is especially necessary. We must make full allowance for the imitativeness of mankind. A great number of Village-Communities to be found in the various parts of the world, and a great number of Manors which still exist in England in extreme decay, must have been originally mere reproductions of a model which had grown into favour. Much of the waste land of India, at most held previously in vague tribal ownership, was colonised by groups of men who settled down in Village-Communities because they knew no other form of common cultivation, and the waste places of Europe were extensively brought under tillage by colonists arranged in manorial groups under religious bodies or powerful men who had obtained large grants of land. There are, and have been from time immemorial, parts of the world in which settlers would as naturally plant themselves in these groups, as English or Scottish emigrants in Canada or New Zealand would now establish themselves on separate farms to be cultivated by themselves and their children, or by hired labour. All, then, that we can hope to discover is the typical form. Now the typical Village-Community—a body of self-styled kinsmen, having a government of their own, and engaged under fixed rules in common cultivation—is too peculiar a group to have arisen by accident, or to have had its origin in individual caprice. The evidence seems conclusive that it first grew up in remote barbarism, though in barbarism probably not older than the period at which mankind began to cultivate cereals, or to combine that cultivation with the pasturing of flocks and herds. It may give an idea of the wide diffusion of the Village-Community in its more archaic shapes if I mention that it has been observed not only in the largest part of India, but in the Fiji Islands (by Sir Arthur Gordon), and among the Berbers of North Africa (by M. Ernest Renan), and that what appears to be a distinct form of it, followed by the more southerly tribes of North American Indians, is described by Mr. Morgan in the fourth volume of the United States Survey of the Rocky Mountain region, which appeared last year. Nor is it possible for me to doubt that the typical Manor arose out of the Village-Community. Everybody who has made for himself a clear mental picture of the last group will see that it contains everything which is found in the earliest Manors, with no differences except those which come from the substitution of individual for popular authority. Everything which the lord can do can be done by the council of village elders, or by the village-headman, these last, however, being responsible to the community, while the lord tends more and more to become a mere owner, just as the King of France came to be called by the lawyers the King-Proprietor of all French land. But beyond this account of the relation between the Types, it would not be safe to go. Both the type of the Village-Community and the type of the Manor have been extensively copied,1 and here and there in surprisingly recent times. Their wide extension by colonisation is, I suppose, the source of a paradoxical opinion which I have seen, that their most distinctive peculiarities are altogether modern.
The question of the origin of Manors or Fiefs established in Western Europe, and then spread far and wide by artificial agency, is wrapt in obscurity. I argued in a former work that everything which contributed to what we call feudalism must have sprung either from barbarous custom or from Roman law (‘Ancient Law,’ pp. 364 et seq.); but from which source were the germs of manorial authority derived? On the one hand, the examination of the Theodosian Code shows that the great estates of the Roman proprietary—their villæ, cultivated by coloni and slaves—contracted a certain resemblance to the Manor, which I myself am, on the whole, disposed to explain by the number of cultivators of barbarous origin with which they were filled. I have always distrusted the implied assertion of the Roman lawyers that the multitudinous Roman slaves had no institutions at all; and I imagine that a vast property, crowded with barbarians, would naturally fall under a system of management not unlike the mechanism of one of the most widespread of barbarous institutions. It is certainly significant that the Germanic draftsmen of Codes and Charters always used the word ‘villa’ for what we call a village-community. While I certainly cannot accept the conclusion to which some learned Frenchmen incline, that the Manors of the continent are in their origin nothing but Roman villæ, still it seems only reasonable to suppose that in the former Roman provinces the organisation of the villæ did assist in causing the cultivating groups to take the manorial form rather than that of self-governed village-communities. It is to be noted at the same time that the oldest of the barbarous codes, the Lex Salica, knows nothing in its earlier and genuine portions of manorial authority. The potestas dominica of which it speaks is ‘royal’ power. It knows the village-community under the name of villa (see the Title 45, ‘De Migrantibus’), and in describing one of its even now marked characteristics, its rigid exclusiveness, it implies that the community is one of freemen entitled to sue before the free Court of the Hundred. The Manor appears, however, to have been known to the compilers of the later Leges Barbarorum.
The difficulty of attributing the origin of English Manors to the Roman Villa need hardly be stated. The particular Teutonic tribes which conquered Britain came from homes so northerly that they can hardly have so much as seen a great Roman estate, and, even if they had, it is not easy to understand adventurous warriors settling down as serfs or villeins in their oversea conquests. This subject, however, is one of those most fully treated in Mr. Seebohm’s volume.
It may be convenient that I should give in full the passage from Bracton stating the legal theory of villenage which prevailed in his day. ‘The tenement changes not the condition of a free man any more than of a slave. For a free man may hold in mere villenage, doing whatever service thereto belongs, and shall not the less be free, since he does this in regard of the villenage and not in regard of his person. . . . Mere villenage is a tenure rendering uncertain and unlimited services, where it cannot be known at eventide what service hath to be done in the morning—that is, where the tenant is bound to do whatever is commanded him’ (fo. 26a). Again: ‘Another kind of tenement is villenage, whereof some is mere and other privileged. Mere villenage is that which is so held that the tenant in villenage, whether free or bond, shall do of villein service whatever is commanded him, and may not know at nightfall what he must do on the morrow, and shall ever be held to uncertain dues; and he may be taxed at the will of the lord for more or for less, . . . yet so that if he be a free man he doth this in the name of villenage and not in the name of personal service; . . . but if he be a villein [by blood] he shall do all these things in regard as well of the villenage as of his person’ (fo. 208b). The only difference in the services was that the merchetum on marrying a daughter, being an incident of personal servitude (as a fine paid to the lord for depriving him of a slave), was not demandable from the free man holding in villenage’ (F. Pollock, ‘Notes on Early English Land Law,’ ‘Law Magazine and Review’ for May 1882). The whole of Mr. Pollock’s valuable paper deserves consideration.
CLASSIFICATIONS OF PROPERTY.
All who have any knowledge of Legal History are aware of certain distinctions which run through all commodities or through large departments of them, and which cause the objects of enjoyment lying on either side of the line to belong, in the eyes of lawyers, to widely different provinces of law. Among these distinctions, there is that which the ancient Roman lawyers drew between Res Mancipi and Res nec Mancipi—that is, between Things which required and Things which did not require for their transfer the conveyance of Mancipation; there is the mediæval West European distinction between the Allod and the Feud, between allodial land and feudal land; there is the still surviving English distinction between Realty and Personalty, and finally there is the late Roman and modern European distinction between Res Mobiles and Res Immobiles, between movable and immovable property.
We only know the distinction between Movables and Immovables as relatively modern in the Roman State and in Europe. It is the result of an attempt of the Roman lawyers to abandon the old historical classifications, and to classify commodities, Property, the objects of enjoyment, according to their actual nature. The generalisation has required but little subsequent correction; the difficulties which have arisen in using it have been insignificant, and have occurred only on the very border-line between the two great classes of Things. In the Middle Ages, the fact that a tree, though immovable, generally acquires value through being hewn down and becoming movable, and possibly some local practice of employing movable wooden frames in the structure of houses, suggested to the expositors of a few early German legal systems a definition of movables as everything which could be destroyed by fire; and, in more recent times, the question of the proper place to be assigned to a class of things of which modern manufacturing industry has greatly increased the importance—‘fixtures,’ as we call them, the ‘immovables by destination’ of French law—has occasioned doubts and disputes. Still, on the whole, if law had really been founded on the principles imagined in the last century to constitute its basis—on those principles of simplicity or fitness or good sense which are associated with the words ‘Nature’ and ‘Natural’—it is probable that no classification of commodities would have struck mankind sooner than that which divides them into movable and immovable. We know, nevertheless, that the whole course of Roman legal modification from the Twelve Tables to the reforms of Justinian had to be gone through before this seemingly obvious distinction formally superseded the old historical distinction between Res Mancipi and Res nec Mancipi, the first including Land, Slaves, Horses, and Oxen, and the second everything else; and the curious fact remains that the English-speaking communities—England, her colonies, and considerably more than half the States of the American Union—still reject the improved Roman classification, and, separating leases of land for years from the bulk of immovable property, join them to personalty or movables. Thus stubbornly do the old historical classifications hold their ground. But still, if we firmly grasp the truth that these historical classifications can only mean that the commodities which they place in the highest class must have been at some time or other the sole important subjects of proprietary right, and that the others either did not exist or were of trifling value, we cannot but see that there must have been a still earlier time when the accepted historical classifications were themselves modern. The most archaic of them, one probably as old as any conscious attempt to draw this kind of distinction, is that bequeathed to us by the Romans. Yet land, slaves, horses, and oxen cannot, as subjects of individual property, have been of contemporaneous origin. There must have been a time when a wild animal tamed, which was a rarity, was of more value than a hundred acres of land, which was superabundant. The domain of a tribe, as soon as the history of mankind began, may have been jealously guarded by it as exclusive hunting-ground, as marking the limits which none but a tribesman could step within save for bloodshed or plunder, or may have been reserved by it (in a later stage of society) for pasture; but each man’s share of this domain was of less value to him individually than a slave, a horse, an ox, or even than a flint-headed axe or spear. All this follows from the simplest economical axioms; but the vestiges of the older (and yet probably not the oldest) state of the primitive objects of enjoyment are plainly stamped upon one authentic record of archaic custom, the ancient Irish law; and they seem to me equally discernible in the ancient Teutonic Code, the Lex Salica, which, whatever else it is, is pre-eminently a body of rules protecting the ownership of kine, swine, sheep, goats, horses, and even bees.
I pass to a distinction which rose into importance in an age nearer our own—the distinction between the allod and the feud, between allodial and feudal land. The allod in some form or other is probably as old as the institution of individual landed property, and we may regard it as equivalent to or directly descended from the share which each man took in the appropriated portion of the domain of the group to which he belonged—tribe, joint-family, village community, or nascent city. But many facts—facts which are receiving constant additions—appear to me to show that this share was not at first a definite area, but what we should now call a fraction or aliquot part of the divisible land. The shares of the domain which each family or household could claim shifted among the households under a system of distribution in turns or by lot, and each share very slowly became appropriated to particular families. We only know the society of the Roman Commonwealth when it had reached this last stage; indeed, the hungry struggle for the public domain which begins authentic Roman history would seem to show that the system of ‘shifting severalties,’ which had not quite died out in England fifty years ago, was long over among the free Roman peasantry; and the traces of an older economical condition must be sought in that copious law of servitudes or easements into which modern lawyers of all nations have dug as into an inexhaustible mine, and which seems to show that the agricultural land of every Roman was really servient, as the technical phrase ran, to his neighbours in respect of rights of way, rights of riding, driving, and draught, rights of drawing and lending water, and a mass of other rights, far beyond all modern experience and example. The abundant Roman servitudes appear to me to point back to the same modified common enjoyment of land which characterised other Aryan races; but the early period at which the land of a free Roman peasant became appropriated to his family in strict severalty affected the legal and economical history of Roman society very strongly, and thus becomes a fact of much importance in the development of the Western world.
There are indications that at first the possession of allodial land was everywhere the distinctive privilege of the freeman. Down indeed to the first French Revolution the exceptional tenure of land in ‘franc-alleu,’ which here and there survived amid the general feudalisation, was held by Frenchmen in high honour. Nevertheless, the modern history of allodial land is essentially the history of the holding of land by servile or by very humble classes. It bequeathed its great characteristic, its divisibility at death between all the children or all the sons, to that lowest stratum of landed right upon which the feudal structure reposed, either because communities originally free had sunk on all sides into villenage, or because the allod was the type of all enjoyment of land, and was followed in colonies of serfs planted by a Roman dominus or Teutonic lord. All peasant holdings in France were adjusted to this type till the Revolution, and so were German peasant estates down to a considerably later date. We have traces of its peculiar rules in the Gavelkind of Kent, and in much copyhold land; and a comparison of the treatises of Glanvill and Bracton enables us to fix the time when the most widely diffused of English tenures—socage—was just putting off the characteristics of the allod, and putting on those of the feud. But our current Real Property Law is coloured throughout by the feudal view of land, which is that, when held in individual enjoyment, it is primarily impartible or indivisible. The great system of land-law, resting on this feudal conception, though occasionally wrested into departure from it by sovereign authority, is essentially a system of rules regulating the tenure of land by noble classes. The allodial tenure, which is believed to have been originally the tenure of freemen, became in the Middle Ages the tenure of serfs. The feudal tenure, which was certainly at first the tenure of servants who, but for the dignity of their master, might have been called slaves, became in the Middle Ages the tenure of noblemen. It was by an exception, and a remarkable one, that in our country the land-law of the nobles became the land-law of the people.
We know thus much of the beginnings of that feudal system, of which the feudal land-law was a part, that it had several diverse origins. The land on the border lines of the Roman Empire was held by soldier-cultivators on tenure of military service; and this must have had something to do with it. The Roman law of Patron and Client must have had something to do with it; for it plainly suggested many customary relations of lord and vassal. We see much which cannot but have contributed to it in the primitive or barbarous usages of the Aryan races re-introduced into the Roman Empire by the Germans. Among these, society was distributed into compact groups of families or clans, the first administered by the eldest member subject to a species of election, the second often, if not always, governed by some member of a ruling family, selected by the process which the Irish called Tanistry. And these Chiefs or Kings were in the habit of buying or rewarding the services of their immediate retainers by gifts. We can put our finger on a variety of the ingredients of feudalism spread over a large surface. Nevertheless, with all our knowledge, there is still the greatest obscurity on one point. How was the conception of landed property so completely changed? Nothing can be more singularly unlike than the legal aspect of allodial land, or, as the Romans would have called it, land held in dominium, and the legal aspect of feudal land. In passing from one to the other, you find yourself among a new order of legal ideas.
Perhaps it requires a lawyer alive to the significance of technicalities, and tolerably acquainted with the later Roman and earlier feudal law, fully to estimate the thoroughness of the transmutation. An account of all which it implies would be out of place here; but, to take only one phase of it, no subversion of an accepted legal notion can be more striking than that of the Roman (which is the developed allodial) view of land as essentially divisible by the feudal conception of land as essentially impartible. The Roman lawyers note, as a fundamental difference between immovable and movable property, that land is divisible ad infinitum, and may be always so conceived though actually undivided, while movables are not properly capable of division. They could conceive land as held (so to speak) under different legal dispensations, as belonging to one person in Quiritarian and to another in Bonitarian ownership, a splitting of ownership which, after feudalism had fallen into decay, revived in our country in the distinction between the legal and the equitable estate. But there is no symptom that a Roman lawyer could conceive what we call a series of estates—that is, a number of owners entitled to enjoy the same piece of land in succession, and capable of being contemplated together. It is a very remarkable fact that when these great legal thinkers had to form an idea of an interest in land so familiar to us as an estate for life, they had to go for an analogy to the law of servitudes or easements. A Roman usufruct of land was in its practical effects very much the same as an English estate for life; but the Roman jurists classed it with rights of way over another man’s field, or a right of drawing water from another man’s well. The impression left on my mind by a variety of passages in the Roman legal records is that, if a Roman lawyer had been asked to take into his mental view a number of persons having rights together over the same property, he would have contemplated them not as enjoying it in turn, but as dividing it at once between them. Thus far was he from conceiving the ownership of the same area of soil as distributed over tenants for life and remainder men, tenants in tail male, and tenants in tail female, doweresses, tenants by the courtesy of England, and reversioners. This long series of persons, all having ascertainable rights capable of co-existing in the same property—this long succession of partial ownerships, making up together one complete ownership, the feodum or fee—could not have been dreamed of till a wholly new conception of landed property had arisen. When, several centuries after the birth of feudalism, lawyers sought to employ the Roman law to express the feudal relations, it had to be violently wrested from its true meaning and purpose; as was notably the case with the law of Fidei-commissa, or testamentary gifts in trust.
One particular agency by which this great revolution of legal ideas was, at least, partially effected, has been of late the subject of controversy between some of the most learned men of our day; and the controversy, I am sorry to say, has been marked by much of the bitterness peculiar to disputes which are still confined to the learned and have not yet become popular. The Beneficium, or Benefice, an assignment of land by a conquering Teutonic king as the reward or price of military service, is allowed on all sides to have had much to do with this great change in the legal point of view. Whether the benefice was always a gift of public land—as M. Fustel de Coulanges insists that it was—in the countries which passed under the sceptre of the House of Clovis, or a gift of confiscated land—as there is reason to think it was, at all events, in some subjugated provinces of the Roman Empire—it began a new stage in the history of land-law. In its earliest form it was unlike the estates of matured feudalism, since (according to the better opinion) it was not at first generally hereditary; but it was still more unlike the allodial lot of the Teutonic freedman and the fundus of the Roman provincial citizen. One modification of Roman landed property came near it—the Emphyteusis; and I still hold to the opinion that we have here one of the sources of the new legal conception. But though this explanation is plausible, as far as it goes, it is only partial; and, moreover, the symptoms of a change in the legal view of landed property are not confined to countries which had formed part of the Roman Empire, but are found in purely Teutonic lands.
Feodum, the later Teutonised name of the Beneficium, is now allowed to have been derived from the old Gothic word ‘fihu,’ or ‘fiu’—cattle. The term is supposed to have come to mean ‘property,’ just as pecunia, from pecus, contracted this meaning. A few years ago, after pointing out the great part played by cattle in converting Irish tribal holdings into something like feudal tenures, I stated that I suspected ‘feodum’ to have a closer connection with cattle than the usual etymology implied. M. de Laveleye, commenting on this remark, has stated that he has no doubt of the association; and he observes that we thus see the meaning of the original contrast between allodium and feodum—al-od, the complete property; fe-od, the cattle property. Plausible as this is, I should have hesitated to build on it as a basis but for the remarkable results disclosed by the examination of the Salic Law. It undoubtedly shows that an ancient Law of Movable Property may deeply affect a Law of Land. Now, we know that among the Germans observed by Tacitus or his informants the chiefs were rewarded by King or Commonwealth with assignments of cattle and corn; the companions of the chief, living in his house, received a horse and arms as pay. It was exactly the system which prevails at this moment at the Court of a Kaffir chieftain in North Africa. Now, let us conceive this system modified by the growth of population or by conquest, but otherwise unaltered. In the first case, land increases in value through natural economical causes. In the second, the Teutonic host become the masters of lands long since populous and filled with wealth accumulated during the Pax Romana. If, then, we assume that, at once in the occupied provinces and more gradually in Teutonic territory, gifts of land took the place of gifts of cattle and arms, but that the old associations with assignments of movables continued to attach to a Benefice in land, the transfer of idea—to my mind, at all events—explains better than anything else the transformation of the legal aspect of landed property. I can now understand why the Benefice was not at first hereditary; why, even when it became hereditary, the donor could select the son who was to inherit; why he could cause it, after the death of any holder, to remain to somebody else; why, like a horse, or a suit of armour, or a herd of cattle, it could pass through a succession of hands and then revert to the giver; why it was impartible, the ancient gift of movables having to be restored entire either in genere or in specie; and lastly, to pass to more technical matters, why such importance was attached by the early feudal law to seisin, or actual possession, and why the gift of a feudal estate implied warranty of the title to it, which a grant of allodial land never did.
As a matter of fact, we have in the Irish usages lately brought to our knowledge a system just such as we might expect if we were permitted a view of Teutonic customs somewhere between the first and the fifth century—a feudal system (if we may so call it) dependent on cattle and kinship instead of land and tenure. I will not now repeat the account which I gave on former occasions of the remarkable social mechanism disclosed by the Brehon laws; but those who will examine it carefully will find a number of special feudal rules much more simply explained by the relations of Irish chief and Irish clansman than by any theory founded on the exigencies of military service or on spontaneous modifications of property in land.
I must not be understood as affecting to offer a complete account of the complicated system of rights and duties, some personal and some proprietary, which made up what we call feudalism. The mailed knight of the days of chivalry, who is spoken of in much of history and historical romance as if he were a product of one age and one region, may be shown to have obtained from all sorts of quarters the materials of the ascendency which he long exercised in Western Europe. His iron armour came from the household cavalry of the Eastern Cæsar at Byzantium; the stirrups, without which he could not have worn it on horseback, were brought, with his horseshoes, by Tartar riders from the steppes of the furthest Asia. Just so feudalism, which in the twelfth century looks to us all of a piece, is undoubtedly the result of many converging lines of descent. We are now only concerned with the feudal land-law, and to attribute it to a single origin would be quite inadmissible. We must give due weight to the influence of purely Roman ideas: those connected with the Emphyteutic form of property, those springing up among the military colonies on the German border, and those which had their origin in the Roman law of Patron and Client. Competing with these Roman ideas are others even more potent, of barbarous or primitive origin. I cannot doubt that, when the Benefice or Feud became hereditary, the plan of succession was mainly taken from that which the men of primitive Aryan race had considered as appropriate to chiefships or sovereignties, and which in one of its stages the Irish called Tanistry. As little can I doubt that the general tumult of the Western world, during the dissolution of the Carolingian Empire, contributed to diffuse succession by Primogeniture on the one hand, and to produce Villenage on the other. The imminent daily danger caused little societies to cluster round their natural leader, or some soldier of fortune who had taken his place; the general impoverishment caused men to be depressed to the condition of beasts of burden. Unquestionably the squalor and poverty which meet us on the threshold of the Middle Ages did not characterise the provinces of the Roman Empire, even on the eve of its fall. There can be no greater delusion than that the Roman provincials were pauperised by taxation; and M. Fustel de Coulanges seems to me to have quite proved in his last work that Gaul, at all events, even when swarming with barbarians, was still full of wealth and splendour. But no surer ruin can be wrought to the hoarded capital of centuries than by such an anarchy as prevailed on the relaxation of the Carolingian power. Lord Macaulay, in contrasting India as the English found it with the impressions of it entertained by European adventurers, has said that it is really a very poor country; but it is very difficult to believe this of so great an area of fertile soil crowded for ages by an industrious population. The true secret of the poverty of India, from which she is slowly recovering, I take to be the desolation caused by the wars and brigandage of about 2,000 several chiefs while the Mogul dominion was dissolving. I think that India during the reigns of Akhbar and Jehangir was very probably as rich as the Western world thought it; but its carefully hoarded capital was destroyed as were the accumulations of the Roman Empire. There are some very singular analogies between the dissolution of the Mogul and the dissolution of the Carolingian power—to some extent in their course, but in a much greater degree in their social effects. These, however, cannot be conveniently considered here.
One result of this revolution of legal ideas, which arose from assimilating immovable property to movable, was, I need hardly say, greatly to complicate the law of land. The complex land-law of the feudal ages was, on the Continent of Europe, essentially the law of noble classes; but in this country it became the general land-law, as I before stated, by exception. Among the many proposals which have been made for reforming it since Bentham became an authority among us, one frequently put forward may be described as a proposal to carry to its farthest consequences the early process of change in which feudalism begun. The suggestion has often been made that real property should be closely assimilated to personalty, more especially in respect of conveyance. There ought to be no more difficulty, it is said, in transferring a piece of land than in selling a horse. I believe the analogy to be unsound, and the route indicated a false one. There is far more promise in reversing than in extending the principle, in treating land as essentially unlike movables, and in a return to the ancient methods of conveying allodial land. The subject is, for several reasons, worthy of our attention.
It is to be recollected, first, that the primitive conveyances of allodial land were before all things public. Land belonged to the tribe, joint-family, or village-community before it belonged to the individual household; even when it became private property, the brotherhood retained large rights over it, and without the consent of the collective brotherhood it could not be transferred. The public consent of the village to a sale of land is still required over much of the Aryan world. Although, as we know the Mancipation in Roman legal history, it is a form of private transfer, it plainly bears the stamp of its original publicity. The five witnesses who had to assist at a Mancipation represent the old consenting community, according to a principle of representation by fives widely diffused among primitive races. As a private conveyance, Mancipation was extremely clumsy, and I have no doubt it was a great advantage to Roman society when this ancient conveyance was first subordinated to Tradition, or simple delivery, and finally superseded by it. Nevertheless, the most successful modern experiments have reverted in principle to a method of transfer even older than Mancipation, and the latest simplifications of the conveyance of land are a reproduction of the primitive public transfers in the face of the community, in a new form appropriate to large and miscellaneous societies.
In France, and in the territories incorporated with the Empire of Napoleon I., there has existed, ever since the establishment or introduction of the Code called by his name, a system of publicly registering sales and mortgages of land. In some of the Germanic countries there was long a disinclination to adopt these expedients; but they have now been almost universally copied on the Continent, and, as sometimes happens, the new system is most perfect where the delay in accepting it was longest. The land-registries which have the highest commendation from juridical writers are those of certain small Teutonic communities—e.g. the state of Hesse-Darmstadt, and the Swiss canton of Zürich. I can here give but a brief description of the mechanism. The land of the community is divided into a number of circumscriptions of no great area. For each of these a central office is established, with a staff of functionaries who are to some extent experts, and at each office a register is opened in which separate portions or groups of pages are appropriated to separate masses of land. There has been some controversy as to what the area selected for separate treatment should be—whether a space determined by land-measurement, or, as we should say, an estate, an aggregate of lands once held as a single property; but I believe that the historical system, that which deals with estates rather than with areas settled by land-surveyors, has been found practically the most convenient. When the register has once been opened, the legal history of every parcel of every area is thenceforward recorded in it, and every transfer or mortgage must be registered in it, under pain of invalidity. Whether a person wishing to sell or mortgage has the right to do so it is the business of the staff of experts to ascertain. It is absolutely essential to the system that the register should be easily accessible, and the formalities of registration simple and cheap.
The nearest English analogy to these new foreign systems is to be sought in the Court Rolls of Manors; and it is sometimes asserted by lawyers that the manifold disadvantages of copyhold property are compensated by the many conveniences arising from its registration in these rolls. As to the great mass of English freehold property, there is a general admission among lawyers of the expediency of registration, but vehement dispute as to the best method, and a certain disposition to look upon the practical difficulties as insuperable. It is true that these difficulties are far greater than abroad. Our land law is much more complex than the land law of Continental countries, where it has its counterpart, if it has any, in the exceptional law applied to the estates of a limited number of noble families; and English real-property law has been still further complicated by the liberty of transfer and devise which we have enjoyed from a comparatively early period. The great difficulty with us lies in the preliminary process of ascertaining whether a person desirous of selling or mortgaging has the right to do it; but this is in most Continental countries a comparatively easy matter, the bulk of the land having been held until the early part of this century by a tenure of strict villenage, or, as we should say, in copyhold.
My immediate object, however, is not to pass an eulogy on the principle of conveyance by entries on a register, or to weigh one system of registration against another. I wish rather to point out some remarkable consequences of registration which ought to have our attention in our special branch of study. A short time since I stated that the problems once solved by the expedient of Warranty were common to all bodies of jurisprudence. What is to be done in the case of the man, who is in fact exercising all the powers of an owner, but who has no title to show? Is he to be at the mercy of anybody who chooses to injure or disturb him? The Roman law answers this question by providing the vast body of rules which constitute the chapter on Possession. What has to be done with the man who has bought, with the proper formalities, but not from the true owner—or from the true owner, but not with the proper formalities? The answer of the Roman law consists in the doctrines of bonâ fide Possession and of ownership in bonis—Bonitarian or Equitable ownership. Is the Bonitarian owner or the Possessor, with or without good faith, always to have an imperfect title? The reply is in the great departments of law concerned with Usucaption and Prescription. If a man mortgages his property to a number of creditors, in what order are they to be satisfied? The volume of rules by which all systems try to solve this problem is quite enormous. But it is very remarkable that where there is a perfect system of land registry the strong tendency is to revert to the doctrines of Roman law as it must have been before Possession, Usucapion, and Bonitarian ownership grew up. The registry of the sale or mortgage of land being extremely easy, expeditious, and cheap, there is a marked disposition among the authors and expositors of law to say to the members of the community, ‘Either register your transfers or mortgages, or cause them to be registered, or you shall have no rights whatever. If you neglect doing that which it is in your power to do at any moment and at a trifling cost in time and money, you shall not have the benefit of Possession, of Bonitarian ownership, of Usucapion, or Prescription. At most, there shall be an Action of Contract to compel the seller of land to register and the buyer to pay the purchase-money. As regards mortgages, they shall rank in the order of priority of registration, and if you delay going through the proper formalities, or compelling them to be gone through, you, the mortgagee, will be postponed to creditors more diligent than yourself, and you will be satisfied after them.’ I follow German writers of authority in saying that this is the condition to which legal doctrine is approximating in much of Germany, though it is not quite adjusted to it. The singular result is that some of the most intricate and difficult chapters of law cease to be of any, or much, importance. The expedient of public registration is, it will be seen, purely mechanical. A contrivance very like it in principle spontaneously and very early suggested itself to the human race. Nevertheless, where a public registry of mortgage and land transfer has been established, some of the most famous and luxuriant branches of law show a tendency to dwindle and wither away under its shadow. Possession, Usucapion, Bonitarian ownership, and Hypothek occupy together a prodigious space in the Roman jurisprudence; the bulk of what corresponds to them in other systems of law is very great; if they are reduced to a fraction of their present dimensions, the diminution of the aggregate body of law will be extraordinary and will have been produced in a most unexpected way.
I have dwelt on these Continental systems of land registration, and on the effects attributed to them by German juridical opinion, for two reasons. In the first place, the fact is certainly curious that the latest improvements in the mechanism of mortgage and land transfer involve a reversion to the primitive publicity of conveyance. The public register at some accessible spot, in which all transactions must be registered under penalty of immediately forfeiting all their benefits, pretty much corresponds to the primitive assembly of the village before which all transfers of shares in the domain must be accomplished, in order that the brotherhood may consent to them and supply evidence of them by the general recollection. It is true that the ancient formalities had one object which has nothing to do with the modern. The primitive publicity of transfer went with a most rigid exclusiveness, and the public consent which was insisted upon was employed to refuse the power of purchase to strangers. The decay of the ancient public conveyances was very probably caused by a change of circumstances which made the communities either unable or unwilling to maintain their collective control over the land of their domain. In modern India the growth of wealth has greatly stimulated the spirit of individualism; buyers and sellers of land alike become impatient of the necessity for obtaining the public consent of the villagers to their bargain; the modern Anglo-Indian law is unfavourable to these archaic restrictions; and thus the primitive public methods of alienation are everywhere giving way to private transfers.1 In the historically ancient world, the same results were most probably produced by conquest and by the absorption of one or more of the primitive proprietary groups by others stronger than themselves. In the Roman State, including a population ever more and more miscellaneous, we find, at the outset of legal history, a mere shadow of the old forms of transfer in the Mancipation; and Mancipation, long before its abolition by Justinian, was subordinated by every sort of legal contrivance to mere Delivery or Tradition. Yet even Tradition, when it became the sole Roman conveyance, retained some trace of the institutions out of which it grew. The Roman law never to the last allowed the dominium or right of property to be passed from one person to another by a mere contract; it was absolutely necessary that the contract should be followed by the delivery of the Thing which was its subject. This is a peculiarity which has more than once caused perplexity to persons who have consulted the Roman law of Transfer in ignorance of its being founded on a principle which the English law and the French Code have abandoned.
The other fact to which I wish to call attention is not merely curious, but highly instructive. The tendency of German juridical opinion, which I have mentioned, shows that we are in danger of overestimating the stability of legal conceptions. Legal conceptions are indeed extremely stable; many of them have their roots in the most solid portions of our nature, and those of them with which we are most familiar have been for ages under the protection of irresistible sovereign power. Their great stability is apt to suggest that they are absolutely permanent and indestructible; and this assumption seems to me to be sometimes made not only by superficial minds, but by strong and clear intellects. I am not sure that even such juridical thinkers as Bentham and Austin are quite free from it. They sometimes write as if they thought that, although obscured by false theory, false logic, and false statement, there is somewhere behind all the delusions which they expose a framework of permanent legal conceptions which is discoverable by a trained eye, looking through a dry light, and to which a rational Code may always be fitted. What I have stated as to the effects upon law of a mere mechanical improvement in land registration is a very impressive warning that this position is certainly doubtful, and possibly not true. The legal notions which I described as decaying and dwindling have always been regarded as belonging to what may be called the osseous structure of jurisprudence; the fact that they are nevertheless perishable suggests very forcibly that even jurisprudence itself cannot escape from the great law of Evolution.
CLASSIFICATIONS OF LEGAL RULES.
Almost the first thing which is learnt by the student of Roman law is, that the classical jurists of Rome divided the whole body of legal rules into the Law of Persons, the Law of Things, and the Law of Actions. Although, however, his studies, as law is now taught amongst us, may soon introduce him to some vehement disputes as to the meaning of this classification, he may be long in becoming alive to the extent and importance of the literature to which it has given birth. It would seem, in fact, that in the seventeenth century, which was a great juridical era, theories of legal classification took very much the place of those theories of law reform which so occupied the minds of the last generation of Englishmen. The continuous activity of legislatures is an altogether modern phenomenon; and, before it began, an intellect of the type of Bentham’s, instead of speculating on the possibility of transforming the law into conformity with the greatest happiness of the greatest number, or with any other principle, speculated rather on the possibility of rearranging it in new and more philosophical order. The improvement in view was thus rather a reform of law-books than a reform of law. The most extreme example of such theories is, perhaps, to be found in the attempt of Domat to distribute all law under its two ‘great commandments’ as set forth in the twenty-second chapter of St. Matthew’s Gospel—love to God and love to one’s neighbour. But on the whole the arrangement in which the compilers of Justinian’s ‘Institutes’ followed Gaius, distributing law in Law of Persons, Law of Things, and Law of Actions, became the point of departure for theories of legal classification. Its history has been not unlike that of several equally famous propositions. After long neglect, it came to be regarded as an expression of absolute truth, and an essential and fundamental distinction was assumed to exist between the three great departments into which the Romans divided law. English jurisprudence was, no doubt, very little affected by this assumption, but English lawyers occasionally come across the inferences from it when they have to deal with Private International law, or, in other words, with the conditions upon which one community will recognise and apply a portion of the jurisprudence of another. At a later date certain difficulties were observed in the rigorous application of the Roman doctrine, and much ingenuity was expended in removing them, or explaining them away. Finally, it was pronounced to be theoretically untenable, and only deserving of being retained on account of its historical importance. According to the general agreement of modern writers on jurisprudence, the Roman distribution of law into Law of Persons, Law of Things, and Law of Actions, must be regarded as now exploded.
As a perfect classification of legal rules would distribute them according to their real relations with one another, and would therefore be founded on a complete analysis of all the legal conceptions, the subject has not lost its interest for very powerful minds in this century. The speculations of Austin on classification almost fill such writings of his as remain to us, and a valuable essay of John Stuart Mill on these speculations may be read in the third volume of his ‘Dissertations and Discussions.’ On the Continent of Europe a more practical interest has been given to such questions by the gradual codification of the law of the whole civilised world, except England and the countries under the influence of the English legal system; for a Code must be arranged somehow, and few would deny that the more philosophical the arrangement the better. But the great majority of writers on the subject, whatever their title to be heard, are agreed in depreciating the Roman classification and all classifications descended from it, and sometimes their censure is surprisingly strong. This modern fashion of decrying, and even of reviling, the arrangement of the Roman Institutes threatens to produce some reaction, and I see that a manful attempt to rehabilitate it has been made in America. A book published at Chicago, and written by a Law Professor of the State University of Iowa, is not likely perhaps to come into the hands of many English readers, but Mr. Hammond’s Preface to the American issue of Mr. Sandars’s well-known edition of the ‘Institutes of Justinian’ contains much the best defence I have seen of the classical distribution of law. My own opinion is that the now common depreciation of this distribution is not so much mistaken as misplaced. The legal classifications proposed by the most modern thinkers on these subjects are classifications of legal Rights. Every one of such systems has legal Right for its centre and pivot. But, singular as the fact may appear to those unacquainted with it, the Romans had not attained, or had not fully attained, to the conception of a legal Right, which seems to us elementary. According to the general usage of the Roman lawyers Jus meant not ‘a right,’ but ‘law,’ and usually a particular branch of law. There are, undoubtedly, certain senses of Jus in which the meaning of ‘right’ is approached, and even closely approached; but, on the whole, the Romans must be considered to have constructed their memorable system without the help of the conception of legal Right. We have constantly to be on our guard against illusions produced by the undoubted stability of law as compared with other provinces of thought. Some modern writers speak of the Romans as if they were to blame for not having clearly conceived a legal Right; even Mill speaks of their language on the point as ‘unhappy;’ but the truth is, and it is very impressive, that the legal idea of a Right was very slowly evolved. In the minds of the Roman lawyers it was entangled with other notions, and was therefore obscure. In the Middle Ages it became clearer, doubtless through its examination by the scholastics. But, unquestionably, a clear and consistent meaning was, for the first time, given to the expression ‘a right’ by the searching analysis of Bentham and Austin. I object, therefore, to the contemptuous language sometimes applied to the Roman map of the provinces of law, as in effect taxing persons who had not yet attained to the conception of a legal Right, with not having anticipated methods of classification of which Rights are the basis. In order to give their due to the ancient lawyers who first divided law into Law of Persons, Law of Things, and Law of Actions, we must try to bring home to ourselves the view of the field of law which this division superseded; and then we shall see, I think, that the new arrangement may have been a great feat of abstraction. The object of this paper will be to show what was the original Roman notion of the contents of a legal system; but it will derive such interest as it possesses from the light which the inquiry throws on certain primitive ideas regarding law and justice which appear to have been once diffused over a great portion of mankind.
The respect, which once amounted to reverence, for the classification of law in the Roman Institutes, though it has had time to culminate and decline, is relatively modern. There is no reason to suppose that the Roman lawyers set any extraordinary value on it. It was confined to their Institutional treatises or primers of law, the educational manuals placed in the hands of beginners. The student was soon advanced to the Prætorian Edict, and the greatest part of his pupilage was passed in the close examination of it, and in reading the numerous commentaries of which it was the text. But the Edict of the Prætor, even when consolidated by Julianus, did not divide law into Law of Persons, Law of Things, and Law of Actions. The Twelve Tables, older than the Edict, have no trace of this classification; nor has any later compendium of Roman law. The Gregorian and Hermogenian Codes were arranged upon a different principle; so was the Code of Theodosius the Second; so, manifestly, are the Code and Digest of Justinian. When the study of Roman law revived in the Middle Ages, it was not the arrangement of the Institutes which regulated the course of legal study soon followed by thousands of students. As may be seen from Mr. Hammond’s Preface, the mediæval teachers followed the so-called ‘legal order,’ that is, the actual order of legal topics in the text of the book before the class. The ascendency of the classification of the Institutes in fact took its rise in dissatisfaction with this ‘legal order.’ It survived in the law-schools, says Mr. Hammond, to the end of the eighteenth century, consequently till after the time of Blackstone; ‘but the increased importance of the Institutes in the plan of study gradually made their arrangement to be regarded as the basis of all scientific systems of jurisprudence.’ It has now, however, become plain, and with regard to matters far more important than legal classification, that much which the eighteenth century abandoned in the name of science and in equally respectable names must be recovered and re-examined, if the thread of human thought is ever to be knitted anew. What then was the ‘legal order,’ which appears in the Roman Digest and Code, and which, when those bodies of law were put together, had already maintained its place for about ten centuries in the legal records of a society of pre-eminent legal genius? I think that the question will be found to have more than a merely technical and more than a merely antiquarian interest.
The arrangement of legal topics which can be shown to have been extraordinarily persistent in the Roman law is first discovered in the fragments of those Twelve Tables which to the last were its theoretical basis. The contents of all the Tables except the Eleventh and Twelfth have been known in a general way since the time of Gothofred; but we are now only under the necessity of attending to the subjects of the first three, and especially of the First. This First Table of the primitive Code contained a number of rules de in jus vocando, on the first steps in a judicial proceeding, on summons to the defendant, and on the excuses, or—to employ the later Teutonic word which found its way into our own early law—the ‘essoins,’ which he might make for not attending. The Second Table had to do, first, with the Procedure to be followed when the case was actually in Court, and next (so it is commonly believed) with theft; it went at once from legal procedure to the fraudulent subtraction of a movable. The Third Table contained rules as to Deposits. We need not go further, and all which must be recollected is that the earliest Roman Code treated first of legal procedure, and then, either at once or shortly afterwards, dealt with the subjects of Thefts and Deposits; all the other heads of law discussed in the remaining Tables followed the same apparently haphazard arrangement. Let us now turn to the Prætorian or Perpetual Edict, the body of Roman Equity jurisprudence as opposed to the Roman Common Law constructed out of the Twelve Tables and out of the accretion of legal rules which had them for a nucleus. The Edict had unquestionably an order of subjects of its own. I will not now discuss the time at which, or the mode in which, this order first appeared. It began with a title manifestly corresponding to the first Decemviral Table, though usually given in different words, de actione dandâ. The Second Title, like the Second Table, dealt with Procedure in Court. Deposit was treated of in the Third Title; but Theft, instead of taking the first place after Procedure, as it is thought to have done in the primitive Code, occupied the last part of the Fourth Title, in which it was preceded by Marriage Portions and Tutelage. There is a general but not exact correspondence with the Twelve Tables throughout the remaining Titles, and on the whole the classification of the Edict looks like a modernised form of the ancient order of the Twelve Tables. It is well established that the distribution of subjects of the Edict was observed in the great mass of Roman legal literature, and that it influenced the earlier attempts at codification, but it was long a matter of dispute whether it determined the order followed in the Code and Digest of Justinian. At first sight there is no trace of resemblance or correspondence, but the reason is that a great quantity of prefatory matter introduces the true classification in both of these famous compilations. In the Code the preface is ecclesiastical; in the Digest there are first some general propositions about law, and then an account of various Imperial officers connected with the administration of the law or having some sort of jurisdiction. The real body of the Digest commences at the Fourth Title of the Second Book, and begins with the very subject of the First Table of the Decemviral Law, de in jus vocando. A close correspondence between these earliest and latest monuments of Roman law may be discerned running through no less than nineteen books of the Digest; only Theft has dropped into an obscurity characteristic of modern as distinguished from ancient law.
From this brief summary of an inquiry which has occupied the minds of several generations of learned men, it would appear that the form of the Roman law throughout the whole course of its history was strongly influenced by the primitive arrangement of subjects in the Twelve Tables. Have we any clue to the meaning or principle of this ancient legal classification? At first sight it is simply disorderly, even less capable of being referred to any dominant notion than the arrangement of our classical English Digest, Bacon’s ‘Abridgment,’ which begins with ‘Plea in Abatement to the Jurisdiction of a Court,’ and goes on to treat of Ambassadors and Attorneys, but which at all events may lay claim to the convenience of an alphabetical order. The suspicion, however, that some light might be thrown on the arrangement of the Twelve Tables by what has more recently been called Comparative Jurisprudence is not new. Ever since the earliest and purest of the Teutonic Codes, the Frankish ‘Lex Salica,’ has been examined, it has been seen that it exhibited some curious general resemblances to the course of legal topics followed in all the monuments of Roman law except the Institutes. The first title is de mannire, on Summons to a Court, thus exactly answering to the First of the Roman Tables, and to the First Title of the Edict. The next seven Titles are concerned with Thefts, just as was the second part of the Second Roman Table. The Salic titles on thefts of swine, thefts of kine, thefts of tame birds, and so forth, succeed one another down to the ninth Title, where the subject of Trespass is taken up; but the code-maker immediately returns to Theft, and though he interrupts himself to treat of Homicide and other serious crimes, he is constantly recurring to Theft throughout a great part of the Code. The title corresponding most nearly to the Roman Deposits does not present itself till the middle of the Salic Law is reached: it is numbered ‘fifty,’ and has the barbarous Latin heading de fides factas; but it is most elaborately framed, and has furnished plentiful food to modern German erudition. The fact remains that the German Salic Law begins, as did the Roman Twelve Tables, with committing what to a modern legal eye is the paralogism of placing the Law of Action in front of the law; that, like the Twelve Tables, it gives a very high place to Theft—in modern law one of the most insignificant of subjects; and that it elaborately discusses contractual obligations, but that it puts them in no place in the smallest degree corresponding to that reserved in the Roman Institutes for the Law of Contract. These resemblances, as I stated, attracted notice some time ago; but it was matter of dispute whether they proved anything more than that the Frankish code-maker had heard something of the Roman ‘legal order.’ On the one side the strong probability might be urged that the Theodosian Code had something to do with the Frankish codification; on the other, it might be said that the substantive law of the Lex Salica shows no signs of derivation from the Roman jurisprudence. It is purely barbarous. Again, the order of topics in the Lex Salica is not that of the later Roman law, which the Frank might conceivably have followed, but that of the earliest Roman law, of which it is almost impossible that he can have known anything. After Procedure, the Salic Law deals with Theft. So, according to the better opinion, did the Twelve Tables; but in the later Roman law Theft had become a criminal offence, and not one of any importance. The fact is, the prominent place assigned to Theft is a distinctive mark of barbarous law. It belongs to the period when movables are of far higher value than immovables, personal property than land. No surer inference can be drawn from the insistence of a lawgiver on Theft than that the community for which he legislated had more land than sufficed for cultivation, and that the common prey of violence or fraud was the movable, the slave, the domestic animal, or the ornament or utensil which was the product of workmen making up for unskilfulness by laboriousness.
The arguments against the derivation of the Salic from the Roman arrangement have always seemed to me to preponderate, independently of new materials for an opinion. But these new materials place the matter beyond a doubt. By itself indeed the lately revealed Irish law would carry us a very little way. Its great peculiarity is the extraordinary prominence it gives to Procedure. The principal Irish law-book, pretending to be a Code and claiming in its preface to have been framed when ‘Theodosius was monarch of the world,’ is almost wholly taken up with the law of Distress. Undoubtedly we have here the Celtic counterpart of the First Roman Table, de in jus vocando. Distraint is the ancient Irish method, and probably it was once the Greek, the Roman, the German, and the Hindu method, possibly it was the universal method, of vocatio in jus, of compelling a person complained against to come into Court and submit the quarrel to arbitration or adjudication. The state of things is that of which we have a bare trace in Roman and Hindu, but traces somewhat more abundant in Teutonic law; you, having received an injury, so far availed yourself of the primitive natural remedy of forcible reprisals that you used it, with the sufferance or under the control of the law, to compel your adversary to come into Court. But, though this amount of correspondence is manifest, no further resemblance to the Roman Twelve Tables can be discovered amid the singular confusions of the Irish jurisprudence. The subject discussed in the great Code, the Senchus Mor, next after Distress is the law of ‘Hostage-securities,’ and it may certainly be asserted that this must have been an important branch of law amid a community perpetually belligerent like the ancient Irish. But in fact a great part of law is incidentally discussed in the Senchus Mor under the head of Distress, and it must on the whole be admitted that neither in that nor in any other Irish law-book is there any clear sign of designed classification. All we can say with confidence is—and this is an important proposition—that the Irish Brehon lawyers regarded the mode of bringing of a defendant into Court as the legal topic which rightfully and naturally took precedence of all others.
It appears to me that the key to these mysteries may be found in those Hindu law-books which have been more or less known to us under the extremely inappropriate name of Codes. One of them has been long accessible to English students through the translation of Sir William Jones, and this so-called Code of Manu is believed by orthodox Hindus to be the very collection of ‘sacred laws’ which Manu, ‘whose powers were measureless,’ declared to the ‘divine sages’ who approached him as he ‘sat reclined with his attention fixed on one object.’ But the sacred laws thus promulgated in no way answer to the modern conception of a Code. They are contained in a book which, among other things, is a treatise on the seen and unseen worlds, on the art of government, and on the various classes of Hindu society. Similarly the Christian Brehon laws are found mixed up with discussions on cosmogony and logic; and the Roman Twelve Tables clearly consisted in some parts of ritual. The Code of Manu would in fact by itself suggest that Law, as a subject of conscious reflection, is the result of a gradual evolution. It was not at first dissociated from all sorts of propositions on matters which affect life in this world or the next. The Sanscritists of our day, as I have explained in the earlier chapters of this work, are not at all inclined to concede to the later Hindu law-books that vast antiquity which was once claimed for them. Following a theory of Professor Max Müller, they trace the rhythmical texts of the so-called Codes to collections of maxims expressed in language so concise as to fasten themselves on the memory, and finally to their fountain-head in the oldest literature of the Aryan race. But the law-books once framed appear to have undergone a further specialisation. Ritual, of which there are plain traces in the Roman Twelve Tables, has a compendium of rules entirely appropriated to itself in that remarkable record of another Italian community, the Eugubine Tables, which till the other day no man could read; and in the book of Narada, now open to the English reader, he will find a version of the ‘sacred laws’ of Manu in which Law proper has been isolated from other subjects, and is regarded very much in the same light in which it would be viewed by the author of a modern Code.
In the mediæval Digests of Hindu law, which are the actual sources of the law now administered in India, Narada is sometimes quoted as of almost equal authority with Manu. In point of fact, both Manu and Narada are entirely mythical, and the books called after their names are nothing more than compendia of the teaching of particular Hindu law-schools, formed more or less on the model of a gens or clan. Both these law-books pretend to an origin in the sacred laws declared by that Manu who took part in the creation of the world; but the author of the extant book, which purports to contain the whole teaching of Manu, quotes ‘Manu’ as a personage distinct from himself; and the preface to the book of Narada describes at length the process by which a supposed original Code of Manu was gradually specialised, until it became at last a treatise on civil law. Manu, says the writer, composed a work which, among other things, told of the creation of the world, spoke of the classification of beings in it, and gave the enumeration of the countries assigned to them, and it contained 100,000 slokas, legal texts or verses. Manu delivered it to Narada, who made the very reasonable remark, ‘This book cannot be easily studied by human beings on account of its length.’ He accordingly abridged it to 12,000 verses, and his disciple, Sumati, further abridged it to 4,000. It is only the gods, says the introduction, who read the original Code. Men read the second abridgment, since human capacity has been brought to this through the lessening of life.
The chief interest of the book of Narada, which has recently been translated into English by Dr. Julius Jölly, of Wurzburg, is that its writer is much more of a pure lawyer than the writer of Manu, and his work is much more nearly a work on law. Both of them were certainly Brahmans. The writer of Manu is intensely sacerdotal, and like earlier authorities, still contemplates the civil and earthly sanction as a supplement and aid to the spiritual penalty. On the other hand, the author of Narada depends almost wholly on the civil sanction, and his religious character shows itself chiefly in earnest and often very impressive exhortations to observance of the law and of the moral duties implicated with legal obligations. For my present purpose, however, I have only to point out that these Brahmanical code-makers, differing sensibly in some respects from one another, and each probably reflecting the doctrine of some venerated school, agree essentially in their conception of the order and contents of a Code. The classification of subjects which they follow may be seen by examining the eighth chapter of the Code of Manu in Sir William Jones’s translation, and it is observed throughout the law-book of Narada. I will describe it from the last, since it is plainer in the more purely legal treatise. The following account of it will be found at page 6 of Dr. Jölly’s version in slokas 16 to 20:—
‘The eight constituent parts of a legal proceeding are the King, his Officer, the Assessors, the Law-book, the Accountant and Scribe, gold and fire for Ordeals, and water for refreshment.
‘Recovery of a Debt, Deposits, Concerns among Partners, Abstraction of Gift, Breach of promised Obedience, Non-payment of Wages, Sale without Ownership, Non-delivery of a Commodity sold, Rescission of Purchase, Breach of Order, Contests about Boundaries, the Duties of Man and Wife, the Law of Inheritance, Violence, Abuse and Assault, Gambling, Miscellaneous Disputes.
‘These are the Eighteen Heads of Dispute.’
This distribution of subjects is, on the whole, rigorously observed throughout the treatise, except apparently in one particular. The mechanism of a Court of Justice and its procedure are first elaborately described. The King seats himself on the throne with the book of the law in his hands; but, though the justice described is throughout royal justice, the King is significantly directed to follow the opinion of his Chief Judge or Assessor. After a full account of judicature, the writer (subject to a remark which I will make presently) takes up the subject of Evidence, which, in his view, includes Ordeals; and then, having started with a summary of what we who live in the light of Bentham should call Adjective Law, he proceeds to divide the Substantive Law into eighteen branches, which he calls ‘heads of dispute.’ The order in which he discusses these is that in which he placed them in the passage which I quoted; with this exception, that the first head of dispute, Recovery of a Debt, is interpolated between Judicature and Evidence. This may be the result of a mere accidental disarrangement of the oldest compendia of Hindu law, but it is to be remarked that something like the same misplacing of ‘recovery of debts’ shows itself in the treatise of Manu, and it is conceivable that it may have been caused by the inherent difficulty of explaining adjective law without reference to substantive law, and that one ‘head of dispute’ may have been taken out of its place with the view of furnishing illustrations to the text-writer.
The principle and meaning of this ancient classification strike me as obvious. The compiler of Narada or his original makes the assumption that men do quarrel, and he sets forth the mode in which their quarrels may be adjudicated upon and settled without bloodshed or violence. The dominant notion present to his mind is not a Law, or a Right, or a Sanction, or the distinction between Positive and Natural Law, or between Persons and Things, but a Court of Justice. The great fact is that there now exists an alternative to private reprisals, a mode of stanching personal or hereditary blood-feuds other than slaughter or plunder. Hence in front of everything he places the description of a Court, of its mechanism, of its procedure, of its tests of alleged facts. Having thus begun with an account of the great institution which settles quarrels, he is led to distribute law according to the subject-matter of quarrels, according to the relations between human beings which do, as a fact, give rise to civil disputes. Thus Debt, Partnership, the Marital Relation, Inheritance, and Donation are considered as matters about which men at a certain point of civilisation do, as a fact, have differences, and the various rights and liabilities (as we should call them) to which they give rise, are set forth simply as guides towards determining the judgment which a Court of Justice should give when called upon to adjudicate on quarrels.
It appears to me that this explanation covers the whole of the problem suggested by the classification of subjects in the primitive Codes which I cited. They all seem to begin with Judicature, and to distribute substantive law into ‘heads of dispute.’ The Irish law never, indeed, gets farther than the initial steps of procedure. All the learning and ingenuity of the contributing Brehon lawyers are bestowed on defining the rules by which adversaries may be brought under the control of the institution, which the Roman and Hindu Codes assume to have been long since in existence and long since in active and regular operation. The testimony, however, to the early overshadowing importance of Judicature is all the more striking. As we have seen, the Roman, Frankish, and Hindu Codes also divide the subjects of the quarrels which are the materials for litigation into several branches; and, as to the order in which these ‘heads of dispute’ are taken up, it seems to me that it depends on their relative importance at the time when that order was fixed. I do not at all doubt that the arrangement is in a certain degree at haphazard, but it seems to me that there must have been a meaning in the prominence given to Deposits in the Roman and Hindu law, and in the prominence assigned to Thefts in the law both of the Romans and of the Salian Franks. At the reasons of the special importance of Deposits we can only guess, but I have already stated my opinion that the importance of Thefts belongs to a particular stage of economical and social advance. We can see the signs in Roman law of their dwindling importance, which is exactly what we should expect from the growth of population, from the rising value of land, from the greater plentifulness of capital, and from the freer multiplication of movable articles of use or luxury, and from their consequent relative cheapness. It is curious that, though Theft is not a specific Head of Dispute in the book of Narada, casual allusions to Thefts occur during the discussion of Deposits, possibly derived from an older state of the law.
The suggestion, then, which I offer is that the authority of the Court of Justice overshadowed all other ideas and considerations in the minds of these early code-makers, belonging to societies of the Aryan race so remote from one another and so unlike to one another. The evidence of this position does not solely arise from the probabilities or depend on inference from the construction of the ancient legal compendia. There is a whole literature, the Icelandic, which gives the most vivid impression of the power and majesty of Courts of Justice in an ancient society. It may almost be said that in the Iceland revealed to us by the labour and learning of Konrad Maurer there is no institution worth speaking of except the Court; all society is moulded round it and all ideas centre in it. It affects all literature, both poetry and prose. It is manifestly in the most intimate relation to every passage, incident, affection, and passion of life. And as the society depicted is in the highest degree bloody and violent, so long as it follows its natural bent, it becomes clear that it is not the Court as we understand it, but the Court standing before all men’s sight as the alternative to forcible reprisals, and as the avenger of their victim, which has attained to this commanding altitude. We need not, moreover, go to historical records for the proof that this is a natural condition of men’s minds. The phenomena can be reproduced, and are in fact not uncommonly reproduced in the country which has only lately emerged from the anarchy into which it fell long after the laws of Manu and Narada had ceased to be administered in it by tribunals which they describe. When a province hitherto specially ill-governed is annexed to British India, the first effect ordinarily is neither satisfaction nor discontent, neither the peaceable continuance of old usages nor the sudden adoption of new, but an extraordinary influx of litigation into the British Courts, which are always at once established. The fact occurs too uniformly, and at first sight is too inexplicable, not to have attracted notice, but it has generally been observed upon with regret, and, after a while, when there has been time to forget the original condition of the annexed territory, this new litigiousness is sometimes adduced to show that in exchanging native for British rule a community does not obtain an unmixed blessing. But the proper conclusion to draw is that already drawn in this paper, that Courts of Justice have an immense ascendency over men’s minds and a singular attraction for their tastes, when they are first presented as a means of settling disputes which were either violently adjusted or slumbered because they could only be settled at prodigious risk.
Another phase in the history of Courts of Justice is instructively illustrated in the more settled parts of British India. The commands of the British Indian Government and of the British Indian legislature are far more implicitly obeyed than the commands of any previously existing authority in India, far more implicitly than the orders of the most powerful Mogul Emperors. The law is obeyed in India as uniformly as in England, but then it is much more consciously obeyed. At present (and for a long while to come it will probably be so) the fact of the existence of Courts of Justice regularly enforcing the law is constantly before the minds of the natives of India subject to their jurisdiction to a degree which we in this country can scarcely conceive. The law and the Court have an importance which may be measured by a circumstance related to me on good authority, that in many parts of India youths learn the texts of the Penal and Procedure Codes in daily lessons, as did the young Romans of Cicero’s day the cantilena of the Twelve Tables. But with us, I need scarcely say, there is little conscious observance of legal rules. The law has so formed our habits and ideas that Courts of Justice are rarely needed to compel obedience to it, and thus they have apparently fallen into the background. It is only when the law happens to be uncertain, or when facts with which we are concerned happen to get unusually entangled, that most of us, who are not lawyers, ever come into contact with the administration of the law. No doubt the force which arms the law is still there; but it lies in reserve, in (so to speak) a compact and concentrated form, which enables it to keep out of sight. On the whole the effect of peace and civilisation is to diminish the conscious reverence of mankind for Courts of Justice, and the abiding sense of their importance.
We may believe that the impressiveness of the early Courts of Justice was in part created by what to a modern eye were their infirmities. It would seem that by their side the very practices long survived which it was their object to suppress. The tenderness of early judicial procedure to immemorial barbarism is shown by its partial recognition of the remedy which we call Distraint and the Germans ‘self-help,’ the remedy of private reprisals on the property of an adversary; and there is much significant evidence that the early tribunals had no power of directly enforcing their own decrees. The man who disobeyed the order of Court went out of the law; his kinsmen ceased to be responsible for his acts, and the kinsmen of those who injured him became also irresponsible; and thus he carried his life in his hand. We cannot then doubt that the violence and bloodshed which the law licensed under certain circumstances were generally rife during the infancy of Courts of Justice, and that their earliest service to mankind was to furnish an alternative to savagery, not to suppress it wholly. Their value and beneficence were therefore probably all the more conspicuous while as yet their power was imperfect and their operation irregular. But gradually, as the sovereign power of the State developed itself, and was more and more placed at the disposal of the tribunals, their decrees became inflexibly effectual. Obedience to them came to be unhesitating and implicit, and a mass of habits and ideas were formed of which the centre and pivot is unquestioning observance of law. This formation of law-abiding habits, and the consequent banishment of the penal sanctions of law into the background, are the secret of many transformations of juridical theory. We have seen that the ‘legal order’ of the Roman Twelve Tables, testifying to the primitive importance of procedure, survived long after it had lost its meaning; but in the Roman State, always relatively well ordered and in the end the type of order and peace, the force which is the motive-power of law early retreated into the distance. The classification of the Roman Institutes, assigning the Law of Actions not to the first place but to the third and last, is one testimony to the formation of a habit of obedience to the law so confirmed as to be unconscious; but another and more striking piece of evidence is the rise of the conception of the Law of Nature, which is in truth law divorced from its penal sanctions. The retreat out of sight, if I may so speak, of the force which is the motive-power of law, has been even more complete in the modern than in the Roman world; partly because the decrees of Courts of Justice are everywhere inexorable, but also doubtless from the long ascendency of theories directly or indirectly descended from the Roman Jus Naturale. The great difficulty of the modern Analytical Jurists, Bentham and Austin, has been to recover from its hiding-place the force which gives its sanction to law. They had to show that it had not disappeared and could not disappear; but that it was only latent because it had been transformed into law-abiding habit. Even now their assertion, that it is everywhere present where there are Courts of Justice administering law, has to many the idea of a paradox—which it loses, I think, when their analysis is aided by history.
The primary distinction between the early and rude, and the modern and refined, classifications of legal rules, is that the Rules relating to Actions, to pleading and procedure, fall into a subordinate place and become, as Bentham called them, Adjective Law. So far as this the Roman Institutional writers had advanced, since they put the Law of Actions into the third and last compartment of their system. Nobody should know better than an Englishman that this is not an arrangement which easily and spontaneously suggests itself to the mind. So great is the ascendency of the Law of Actions in the infancy of Courts of Justice, that substantive law has at first the look of being gradually secreted in the interstices of procedure; and the early lawyer can only see the law through the envelope of its technical forms. It would even seem that civilised societies experience reversions towards this condition of thought. There are men still alive who recollect that the tendency towards active law-reform which was part of the great movement associated with the Reform Act of 1832, first showed itself in an energetic resuscitation of strictness in pleading, so that for many years the practical questions at issue were altogether thrown into obscurity by questions of the proper mode of stating them to the Courts. It was the very state of things which existed when the ancient Hundred Courts of the Germans were administering the rude Salic law. The effects of the ‘New Rules of Pleading’ wore away very slowly, and it was only the other day that the Judicature Acts, of which the full influence has not yet been felt, placed the Procedure of Courts of Justice on the footing which would naturally be given to it by a society which regards it only as Adjective Law.
The most modern classifiers, again, distribute law not with reference to the distinction between Persons and Things, but with reference to the differences between kinds of Rights. I stated before that the clear conception of a legal right is not ancient, or even Roman, but that it belongs distinctively to the modern world. Doubtless, before it can be realised, the sense of a Court of Justice as ever active, and as dominating the whole field of law, must have somewhat decayed. As regards one great class of Rights, those arising out of Contract and Delict, the Romans unquestionably mixed together the notions of legal Right and legal Duty. They considered the parties as bound together by a vinculum juris, a bond or chain of law, and ‘Obligation,’ which is the name for this chain, signified rights as well as duties; the right, for example, to have a debt paid as well as the duty of paying it. As I have said elsewhere, ‘the Romans kept, in fact, the entire picture of the “legal chain” before their eyes, and regarded one end of it no more and no less than the other.’ But it was the Court of Justice which had welded this chain, and the explanation of this and other blended ideas which we can detect in Roman legal phraseology is, I presume, that the dominancy of the Court of Justice over all legal notions still continued to influence the Roman view of law. Although, however, the authors of the Roman Institutional manuals did not invent, and could not have invented, arrangements of law based on classification of Rights, they did, as we have seen, attain to the conception of law as something distinct from Procedure, and they did conceive it as distributable into the Law of Persons and the Law of Things. The exact relation of these two departments to one another has been keenly disputed by modern writers, and it cannot be conveniently considered here; but anybody who can bring home to himself the ancient ideas of law on which I have sought to throw light may, perhaps, convince himself that the conception of a Law of Things, at all events, was a great achievement in mental abstraction; and that it must have been a man of legal genius who first discerned that Law might be thought of and set forth apart from the Courts of Justice which administered it on the one hand, and apart from the classes of persons to whom they administered it on the other.
london: printed by spottiswoode and co., new-street square and parliament street
[1 ]The earliest settlers in New England appear to have planted themselves in townships having a strong resemblance to village-communities. Manors were found in the Southern settlements. See John Hopkins University Studies, edited by H. C. Adams. 1882.
[1 ]Two valuable Acts of the Indian Legislature, the Registration and Transfer of Property Acts, are mitigating the evils arising from the privacy and heterogeneous forms of these transfers.