Part 1

Transcriber’s Note:

This version of the text cannot represent certain typographical effects. Italics are delimited with the ‘_’ character as _italic_.

Footnotes have been moved to follow the paragraphs in which they are referenced.

All Essays were subdivided into titled sections except Essay I (Roman and British Empires) and Essay IV. (Primitive Iceland).

The table of contents includes references to the Essays in Volume II.

Minor errors, attributable to the printer, have been corrected. Please see the transcriber’s note at the end of this text for details regarding the handling of any textual issues encountered during its preparation.

STUDIES

IN

HISTORY AND JURISPRUDENCE

HENRY FROWDE, M.A. PUBLISHER TO THE UNIVERSITY OF OXFORD LONDON, EDINBURGH NEW YORK

STUDIES IN HISTORY AND JURISPRUDENCE

BY

JAMES BRYCE, D.C.L.

AUTHOR OF ‘THE HOLY ROMAN EMPIRE,’ ‘THE AMERICAN COMMONWEALTH,’ ETC. FORMERLY REGIUS PROFESSOR OF CIVIL LAW IN THE UNIVERSITY OF OXFORD; HONORARY FELLOW OF ORIEL AND TRINITY COLLEGES, CORRESPONDING MEMBER OF THE INSTITUTE OF FRANCE

IN TWO VOLUMES

VOLUME I

OXFORD AT THE CLARENDON PRESS 1901

OXFORD

PRINTED AT THE CLARENDON PRESS

BY HORACE HART, M.A. PRINTER TO THE UNIVERSITY

THESE VOLUMES WERE TO HAVE BEEN OFFERED TO HENRY SIDGWICK (LATE PROFESSOR OF MORAL PHILOSOPHY IN THE UNIVERSITY OF CAMBRIDGE) WITH WHOM I HAD OFTEN DISCUSSED THE TOPICS THEY DEAL WITH, AND IN WHOM I HAD ADMIRED, DURING AN INTIMATE FRIENDSHIP OF NEARLY FORTY YEARS, A SUBTLE AND FERTILE MIND, A CHARACTER OF SINGULAR PURITY AND BEAUTY, AND AN UNFAILING LOVE OF TRUTH.

THEY ARE NOW DEDICATED TO HIS MEMORY.

PREFACE

These volumes contain a collection of Studies composed at different times over a long series of years. They treat of diverse topics: yet through many of them there runs a common thread, that of a comparison between the history and law of Rome and the history and law of England. I have handled this comparison from several points of view, even at the risk of some little repetition, applying it in one essay to the growth of the Roman and British Empires (Essay I), in another to the extension over the world of their respective legal systems (Essay II), in another to their Constitutions (Essay III), in others to their legislation (Essays XIV and XV), in another to an important branch of their private civil law (Essay XVI). The topic is one profitable to a student of the history of either nation; and it has not been largely treated by any writers known to me; as indeed few of our best known historians touch upon the legal aspects of history.

Two Essays (III and IV) embody an effort to examine political constitutions generally from comparatively unfamiliar points of view. Five (IX, X, XI, XII and XIII) are devoted to the discussion, in a non-technical way, of problems in jurisprudence which have both a theoretical and a historical—to some extent also a practical—side. Another sketches in outline the early history of Iceland, and the very peculiar constitution of the primitive Icelandic Republic. Three others relate to modern constitutions. One contains reflections on the history of the constitution of the United States, a second describes the systems of the two Dutch Republics in South Africa, and a third analyses and comments on the constitution recently created for the new Commonwealth of Australia.

My aim throughout the book has been to bring out the importance, sometimes overlooked, of the constitutional and legal element in history, and to present topics which, because somewhat technical, often repel people by their apparent dryness, in a way which shall make them at least intelligible—since they can hardly be made seductive—to a reader who does not add to a fair general knowledge of history any special knowledge of law. Technicalities cannot be wholly avoided; but I hope to have indulged in none that were not absolutely necessary.

The longer one lives the more is one impressed by the close connexion between the old Greco-Italian world and our own. We are still very near the ancients; and have still much to learn from their writings and their institutions. The current of study and education is at present setting so strongly towards the sciences of nature that it becomes all the more needful for those who value historical inquiry and the literature of the past to do what they can to bring that old world into a definite and tangible relation with the modern time, a relation which shall be not only stimulative but also practically helpful.

None of these Studies have previously appeared in print except two, viz. those relating to the United States and to the two Dutch Republics; and both of these have been enlarged and revised. My thanks are due to my friend Professor Herbert B. Adams of Johns Hopkins University, Baltimore, and to the proprietors of the _Forum_ magazine respectively for permission to republish these two.

Some Studies were (in substance) delivered as Public Lectures at Oxford, during the years 1870-1893 (when I held the Regius Professorship of Civil Law there), pursuant to the custom which exists in that University for a professor to deliver from time to time discourses dealing with the wider and less technical aspects of his subject. All these have, however, been rewritten for publication; and whoever has had a similar experience will know how much more time and trouble it takes to rewrite a discourse than to compose one _de novo_. Two Lectures, delivered one when I entered on and the other when I resigned the professorship, have been appended, in the belief that they may have some interest for members of the University and for those who watch with sympathy the development of legal teaching in England.

I have endeavoured to bring up to date all references to recent events, so that when such events are mentioned the book may be taken to speak as from 1900 or 1901.

As it is now nine years since I was obliged (when I entered Mr. Gladstone’s Ministry in 1892) to intermit any minute study either of Roman or of English law, it is probable that the book may disclose an imperfect knowledge of facts and views given to the world during those nine years. Under these conditions I might have wished to keep the book longer before publishing it. But life is short. Some of the friends to whose comments and criticisms I had most looked forward while composing these Studies have already passed away. So it seemed better to let what I have written, under the constant pressure of other duties, go forth now.

Among the friends whom I have to thank for information or suggestions are Professors A. V. Dicey, Sir F. Pollock, Henry Goudy, and Henry Pelham of Oxford, Sir Courtenay Ilbert (Parliamentary Counsel to the Treasury), Dr. C. L. Shadwell and Mr. Edward Jenks of Oxford, Dr. F. Sigel of Warsaw, and Mr. Jón Stefánsson of Iceland.

The Index has been prepared by Mr. J. S. Cotton, to whom I am indebted for the care he has bestowed upon it.

_June 27, 1901._

CONTENTS

_VOLUME I_

ESSAY I

PAGE

_THE ROMAN EMPIRE AND THE BRITISH EMPIRE IN INDIA_ 1-84

Conquest or Absorption by modern European nations of the less 1 advanced races

Creation by this process of a sort of unity of mankind 2

Earlier effort of Rome to unify mankind 3

Part borne by England in the work of ruling and civilizing new 4 territories

The Colonies of England: the British Empire in India 4

Position of Rome and England respectively in their Empires 8

Origin of the British Indian compared with that of the Roman 8 Empire

Conditions favouring Roman and British Indian conquest 10

Military character of Roman and British rule 13

What the Roman and the English conquerors have owed to natural 14 frontiers

Strength of the Roman and British armies 17

Efforts to find a scientific frontier 19

The Romans and English as Road and Railway Builders 21

Success of both in maintaining internal order and security 23

Character of Roman and British administration 26

Despotic system: measure of self-government left to the subjects 30

Variations in provincial administration in Roman Empire and 35 India

Revenue and taxation of the two Empires 37

Employment of native subjects in civil and military posts 42

Civil rights of conquerors and of subjects 46

Respect shown to native religions and customs: contrast of 51 religious feeling in ancient and in modern world

Character of the conquerors as a source of their strength 58

Contrasts between the two Empires: geographical position of the 61 ruling race

Fusion of Romans and provincials: no similar fusion of English 62 and Indians

Influence of Climate, of Colour, of Religion 63

Languages and literature in Roman Empire and in India 70

Influences which favoured fusion in Roman Empire absent from 74 India

Retroactive influences of the provinces on Rome and of India on 76 Britain

What the experience of the English in India has proved 79

Causes which overthrew the Roman Empire 80

Probable future of British power in India 82

ESSAY II

THE EXTENSION OF ROMAN AND ENGLISH LAW THROUGHOUT THE WORLD 85-144

Geographical areas now covered by Roman and by English Law 85

Extension of Roman Law by conquest 88

Methods of Legal Administration in the provinces 91

Gradual assimilation of Roman and Provincial Law 97

Establishment of one law for the Roman Empire 99

How the Romans were able to create an imperial law 103

Spread of Roman Law after the fall of the Western Empire 105

Diffusion of English Law over regions settled or conquered 110

Legal systems which the English found in India 113

Policy followed by the English in dealing with Indian Law 117

Codification in India 121

Reciprocal action of English and Native Law on one another 124

Merits and working of the Anglo-Indian Codes 127

Roman Law in the Empire compared with English Law in India 133

Probable future of English Law in India 138

English and Roman Law over the world 142

ESSAY III

FLEXIBLE AND RIGID CONSTITUTIONS 145-254

Observations on the Constitutions of Rome and England 145

Old Classification of Constitutions as Written and Unwritten 148

Proposed new classification 150

Flexible Constitutions: how far distinguishable from laws in 154 general

Origin of Flexible Constitutions 159

Strength and weakness of Flexible Constitutions 163

Such Constitutions are rather elastic than unstable 168

Illustrations from the Constitutions of Rome and England 169

Dangers possibly inherent in Flexible Constitutions 175

Flexible Constitutions suited to aristocratic governments 178

Checks applied in Rome and in England 181

Influence of Constitutions on the mind of a nation 185

Illustrations from Rome and England 189

Capacity of Constitutions for Territorial Expansion 193

Enumeration of existing Rigid Constitutions 196

Circumstances under which Rigid Constitutions arise 200

Enactment and amendment of Rigid Constitutions 205

Various modes now in use for amending them 210

How far can Rigid Constitutions be definite or complete? 217

Stability of Rigid Constitutions 221

The interpretation of Rigid Constitutions 228

Contrast of Anglo-American doctrines with those of the European 230 Continent

American views as to Interpretation 232

Suitability of Rigid Constitutions to Democracies 234

Recent changes of opinion in the United States and England 239

Probable future of the two types of Constitution 242

Proposals for federalizing the British Constitution 245

Possible creation of new States and Constitutions 249

ESSAY IV

THE ACTION OF CENTRIPETAL AND CENTRIFUGAL FORCES ON POLITICAL 255-311 CONSTITUTIONS

The influence of aggregative and disjunctive forces on political 255 societies

Tendencies which may act either Centripetally or Centrifugally 261

Influences of Interest and Sympathy 263

Illustrations of the action of Racial and Religious sentiment 265

In the progress of civilization, material interest and sentiment 269 may be opposed

How Constitutions may use the existing Centripetal and 271 Centrifugal forces

Illustrations from Commerce, Law and Religion 274

Instances of the troubles caused by Racial or Religious 281 sentiment

Methods by which Constitutions may disarm or regulate the 286 centrifugal forces: illustrations

Difficulties due to differences of colour in races 291

How the Constitutions of the United States and Switzerland have 296 acted

The Centripetal force generally, but not always, dominant in 300 European history

Effects of Conquest and of Dynastic Succession 303

Probable future strength of the centrifugal and centripetal 307 forces respectively

Present tendency to the enlargement or consolidation of States 309 is not necessarily permanent

ESSAY V

PRIMITIVE ICELAND 312-358

Discovery and Settlement of Iceland 312

Beginnings of a Polity: the Thing 316

Rise of the Goði or Priest-Chieftain 317

The first political constitution of the island 322

Judicial organization and powers of the Althing 325

The Speaker of the Law 327

Thingvellir and the meetings of the Althing 327

General character of the Icelandic Republic 333

Growth and character of the law of Iceland 335

Complexity of the constitution and the law 337

Sources of our knowledge of the law 341

Illustrations of features of the early law 343

An action for the ejectment of ghosts 345

The Judicial Duel: Story of Gunnlaug Snake’s Tongue and Helga 348 the Fair

The introduction of Christianity 350

Reflections on the early history of Iceland 353

Fall of the Republic: subsequent fortunes of the isle 356

ESSAY VI

THE CONSTITUTION OF THE UNITED STATES AS SEEN IN THE PAST 359-429

Value of contemporary views of an institution 359

The _Federalist_: Alex Hamilton and James Madison 360

The United States in A.D. 1788 361

Predictions of the opponents of the New Constitution 366

Views of its supporters: dangers feared by them 369

Examination of the predictions of 1788 374

Characteristic merits and defects of American Democracy only 378 slightly foreseen

The _Democracy in America_ of Alexis de Tocqueville 381

Merits and flaws in Tocqueville’s study of the United States 382

His insufficient knowledge of England 385

His preoccupation with France 387

The deficiencies observable in his book scarcely affect its 390 present value

Condition of the United States in Tocqueville’s day 392

His description of the salient features of the nation 397

Advantages which he conceives Democracy to have secured 403

Evils he discovers in American Democracy 404

Causes which in his view maintain Republican government 406

His forecasts: the negroes: weakness of the Federal Union 408

Points omitted in his description 413

Chief events in the United States since Tocqueville’s time 415

Chief political changes of the last sixty-seven years 417

Examination of Tocqueville’s predictions 418

Summary of Tocqueville’s conclusions 425

General course of events in America since 1788 427

What Tocqueville would say to-day 428

ESSAY VII

TWO SOUTH AFRICAN CONSTITUTIONS 430-467

Originality of the Constitutions of the two Dutch Republics 430

Circumstances under which they arose 432

Constitution of the Orange Free State 436

Constitution of the South African Republic (Transvaal) 441

Observations on the Constitution of the South African Republic 448

Is it a Rigid or a Flexible Constitution? 449

Controversy as to the so-called ‘testing power’ 452

The Constitution is certainly a Flexible one 453

Observations upon both these Constitutions 455

Comparison of these Constitutions with that of Britain and that 458 of the United States

Relations of Executive and Legislature in these Dutch Republics 460

Practical Working of the Constitution of the Orange Free State 463

Working of the Constitution of the South African Republic 464

Postscript 466

ESSAY VIII

THE CONSTITUTION OF THE COMMONWEALTH OF AUSTRALIA 468-553

Interest attaching to the new Constitution of Australia 468

Origin and progress of the movement for federalizing Australia 471

Causes which induced Federation 477

Influence of a Pan-Australian sentiment 480

Physical and racial conditions favouring Federation 483

Comparison with the conditions of the United States and of 487 Canada

Two leading types of Federal Government 489

Distribution of powers between the Nation and the States in the 491 Australian Constitution

Position of the Australian States under the Constitution 494

Differences from the Federal systems of the United States and of 498 Canada

The National Government: few restrictions on its powers 501

The Legislature: Representation of the States in the Senate 503

The House of Representatives 506

The Executive and the Judiciary 508

Question as to Constitutional Appeals: the British Government 509 yield to Australian sentiment

Intended working of the scheme of Government: The Cabinet 513

Provision against legislative deadlocks 516

Relations of the Two Houses 518

Financial provisions: railways and rivers 521

Location of the national capital: admission of New States 522

Mode of amending the Constitution 523

Relations of the Australian Commonwealth to the British Crown 525

General comparison of the Australian Constitution with that of 527 the United States

Comparison with that of the Dominion of Canada 528

Further observations on the Constitution 531

It is less strictly Federal and more National than that of the 532 United States

Its highly democratic character 535

It contemplates a party system 539

Difficulties which may arise from the existence of a third party 540

What political issues are likely to arise in Australia? 542

Probable prominence of Economic questions 545

Possible creation and admission of New States 547

Will New Zealand enter the Federation? 548

Tendencies to consolidation maybe strengthened by disputes with 550 foreign powers

Future relations of Australia to Britain 551

_VOLUME II_

ESSAY IX

OBEDIENCE 1-48

Different Theories of the Nature of Political Obedience #1#

The grounds of compliance in general: Indolence #6#

Deference and Sympathy #9#

Reason and Fear #12#

Respective strength of these springs of Obedience #14#

Will as a political force: Illustrations from the East #15#

Formation of the habit of Obedience in the individual #19#

Influences forming Obedience in early societies #21#

Slight interest of men in liberty for its own sake #24#

Is the tendency to obey likely to decrease? #26#

Influences apparently making for subordination #28#

What may be hoped for the future of democratic government #31#

How a pessimist might view existing conditions #33#

Conclusion: The disposition to obey will be permanent #41#

Note on the application to the definitions of Jurisprudence of a #44# theory of Obedience

ESSAY X

THE NATURE OF SOVEREIGNTY 49-111

Confusions regarding the term Sovereignty #49#

Sovereignty _de iure_ and _de facto_ must be distinguished #51#

Sovereignty _de iure_ exists in the sphere of law only, and is #56# not concerned with obedience

Sovereignty _de facto_: concrete instances #59#

Relations of Sovereignty _de iure_ to that _de facto_ #64#

Action and reaction of each on the other #68#

The Roman doctrine of Sovereignty: the people are the source of #73# political power

Mediaeval views of Sovereignty: Emperor and Pope #79#