Part 2

New theories of the sixteenth and seventeenth centuries #82#

Bodin, Althaus, Hobbes #84#

Relation of Hobbes’ system to the events of his time #86#

Bentham revives Hobbes’ doctrine #88#

Views of John Austin: illustrations of their unsoundness #89#

Confusion of various questions regarding Sovereignty which are #94# really distinct

Rights in the moral sphere of Sovereignty _de iure_ and #98# Sovereignty _de facto_

Sovereignty in International Relations #101#

Sovereignty in a Federation #104#

Conclusion: Theoretical Controversies regarding Sovereignty have #108# mostly had their origin in current politics

ESSAY XI

THE LAW OF NATURE 112-171

Origin of the notion of Nature as a ruling force #112#

It is different from modern conception of the Laws of Nature #117#

Nature as a force in human society #120#

The term ‘Natural’ as applied to Customs and Laws #122#

St. Paul and the Greek philosophers on Natural Law #124#

The Roman Law of the Nations (_Ius Gentium_) #128#

How the ‘common law of the nations’ was formed #131#

Cicero on the Law of the Nations and Law of Nature #135#

Growth of the idea of Natural Law among the jurists #138#

Practical identification of _Ius Gentium_ and _Ius Naturae_ #142#

Points of difference which remained: Slavery #144#

Extension of Roman citizenship removes the need for a _Ius #147# Gentium_

Senses in which the jurists use the term ‘Nature’ #148#

Value and practical influence of the notion of Natural Law #151#

The Law of Nature and Law of God in the Middle Ages #157#

The Law of Nature in Modern Times #161#

Its relation to the Law of England #164#

Its influence on the rise of International Law #167#

‘Natural Law’ as meaning a Philosophy of Law #169#

Conclusion: Comparative quiescence of the idea in recent times #170#

ESSAY XII

THE METHODS OF LEGAL SCIENCE 172-208

No Philosophy of Law among the Roman Jurists; is such a #172# Philosophy necessary or serviceable?

Four Methods employed in Legal Science #174#

The Metaphysical Method: German _Naturrecht_ #174#

The Analytic Method: the Benthamites #178#

Errors in John Austin’s use of it #180#

The Historical Method #184#

The Comparative Method #186#

Value of these four Methods respectively #190#

How they may best be applied to Legal Study #193#

Did the Romans suffer from having no general Philosophy of Law? #197#

Merits observable in the Roman Jurists: comparison of their #199# treatises with those of English lawyers

Summary: The Roman Jurists are philosophical in spirit and in #207# their practical handling of law

ESSAY XIII

THE RELATIONS OF LAW AND RELIGION 209-246

Apparent Antagonism of Law and Religion #209#

Close connexion of Law and Religion in early states of Society #211#

Differences in this respect between different peoples #215#

The Jews in Roman times: primitive Christianity #216#

Islam; identification of Law with Religion #218#

Illustrations from a Musulman University: the Mosque El Azhar at #219# Cairo

Description of El Azhar and its Teaching #220#

Course of Instruction: Graduation: Endowments #225#

Resemblances of El Azhar to the European Universities of the #229# Middle Ages

Causes of the arrested development of Musulman Universities #233#

Nature and consequences of the Musulman identification of Law #234# and Religion

Identity of State and Church under Islam #240#

How Christianity avoided a similar identification #242#

ESSAY XIV

METHODS OF LAW-MAKING IN ROME AND IN ENGLAND 247-338

Relations of the History of Law to the Constitutional or #247# Political History of a Country

Law-making Authorities in general #249#

Three main sources of Law: the Ruling Authority, the Magistrate, #253# and the Legal Profession

The Jurists as makers of Law in earlier times #255#

Changed position of the Jurists under the Empire #257#

Differences between the action of Roman and English Jurists #261#

Roman Treatises compared with English Reports #266#

Magistrates and Judges: in what sense Law-makers #269#

The Praetor at Rome #273#

Nature and Working of the Praetor’s Edict #275#

The English Chancellor #278#

Praetorian Edicts compared with English Case-Law #281#

Further observations on Praetorian methods #287#

Strong and weak points in the English Case-System #289#

Direct Legislation at Rome: its Organs #293#

The Popular Assembly: its method of legislating #297#

Merits of the Roman Statutes #300#

Legislation by the Senate: its characteristics #303#

Direct legislation by the Emperor #308#

Vast powers of the Emperor: his Privy Council #313#

Defects in Imperial legislation #315#

Profusion and inferiority of legislation under the later #318# Emperors

Direct legislation in England: its history #321#

Advantages of Parliament and Congress for legislation #323#

Strictures commonly passed on English and American Statutes #325#

Difficulties incident to Parliamentary legislation #327#

Reflections suggested by the history of English compared with #332# that of Roman legislation

Some branches of law better fitted than others to be handled by #333# direct legislation

ESSAY XV

THE HISTORY OF LEGAL DEVELOPMENT AT ROME AND IN ENGLAND 339-380

Roman and English Law have both been developed in a #339# comparatively independent way

Conspicuous epochs of legal change at Rome and in England #341#

Forces and influences chiefly active in determining legal #344# changes

Roman Legal History during the republican period #345#

Effect on the law of the establishment of the imperial autocracy #350#

Rise of Christianity: dissolution of the Empire in the West #352#

The decline in legal learning induced Codification #354#

Political events and External Influences are the chief sources #357# of changes in Roman Law

Causes of legal change operative in England: the periods of #358# Henry II and Edward I

The Reformation and the Civil War #361#

The Reform Act of 1832 and the Victorian Epoch #364#

The Law of Family and Inheritance at Rome and the Law of Land in #367# England

Effects of Territorial Expansion on Roman and on English Law #369#

Economic influences more generally potent in England: political #371# in Rome

Observations on France and Germany #375#

Private law is the branch least affected by political changes #377#

Legal topics in which further advances may be looked for #379#

ESSAY XVI

MARRIAGE AND DIVORCE IN ROMAN AND IN ENGLISH LAW 381-474

Diversity of the Law of Marriage in different countries #381#

Features generally characteristic of the institution in the #383# ancient Mediterranean World

Early Marriage law of the Romans #386#

Subordination of the Wife: the ‘Hand Power’ (_Manus_) #387#

Transition to a freer system #389#

Later Marriage Law: nature of the personal relation it creates #392#

Relation of the Consorts as respects Property #395#

General character of the Roman Conception of Marriage: its #400# freedom

Roman doctrine and practice regarding Divorce #402#

Influence of Christianity on Imperial Legislation #406#

Other Roman rules: prohibited degrees: _Concubinatus_ #409#

Marriage under the Canon Law #416#

The English Law: jurisdiction of the Spiritual Courts #420#

Relations of the Consorts as respects Property under English Law #424#

Amendment of English Matrimonial Law by courts of Equity and by #427# Legislation

Personal Liberty of the Wife now well established #430#

English law has wavered between different theories of the #431# relation

Divorce under the Canon Law #433#

History of Divorce in England #436#

Divorce Laws in the United States #439#

Laxity of Procedure in Divorce Cases #441#

Statistics of Divorce in the United States: causes for which it #443# is granted

Illustrations from the ‘Western Reserve’ counties of Ohio #446#

Divorce in modern European countries #450#

Comparison of the phenomena of Divorce in the Roman and in the #453# Modern World

Causes now tending to weaken the permanence of the Marriage Tie #457#

Does the growth of Divorce betoken a moral decline? #461#

Influence of the Church and of the Law #464#

Does the English Divorce Law need amendment? #465#

Changes in Theory and in Sentiment regarding Marriage #469#

INAUGURAL LECTURE #475#

VALEDICTORY LECTURE #504#

INDEX #527#

I

THE ROMAN EMPIRE AND THE BRITISH EMPIRE IN INDIA

In several of the Essays contained in these volumes comparisons are instituted between Rome and England in points that touch the constitutions and the laws of these two great imperial States. This Essay is intended to compare them as conquering and ruling powers, acquiring and administering dominions outside the original dwelling-place of their peoples, and impressing upon these dominions their own type of civilization.

This comparison derives a special interest from a consideration of the position in which the world finds itself at the beginning of the twentieth century. The great civilized nations have spread themselves out so widely, and that with increasing rapidity during the last fifty years, as to have brought under their dominion or control nearly all the barbarous or semi-civilized races. Europe—that is to say the five or six races which we call the European branch of mankind—has annexed the rest of the earth, extinguishing some races, absorbing others, ruling others as subjects, and spreading over their native customs and beliefs a layer of European ideas which will sink deeper and deeper till the old native life dies out. Thus, while the face of the earth is being changed by the application of European science, so it seems likely that within a measurable time European forms of thought and ways of life will come to prevail everywhere, except possibly in China, whose vast population may enable her to resist these solvent influences for several generations, perhaps for several centuries. In this process whose agencies are migration, conquest, and commerce, England has led the way and has achieved the most. Russia however, as well as France and Germany, have annexed vast areas inhabited by backward races. Even the United States has, by occupying the Hawaiian and the Philippine Islands, entered, somewhat to her own surprise, on the same path. Thus a new sort of unity is being created among mankind. This unity is seen in the bringing of every part of the globe into close relations, both commercial and political, with every other part. It is seen in the establishment of a few ‘world languages’ as vehicles of communication between many peoples, vehicles which carry to them the treasures of literature and science which the four or five leading nations have gathered. It is seen in the diffusion of a civilization which is everywhere the same in its material aspects, and is tolerably uniform even on its intellectual side, since it teaches men to think on similar lines and to apply similar methods of scientific inquiry. The process has been going on for some centuries. In our own day it advances so swiftly that we can almost foresee the time when it will be complete. It is one of the great events in the history of the world.

Yet it is not altogether a new thing. A similar process went on in the ancient world from the time of Alexander the Macedonian to that of Alaric the Visigoth. The Greek type of civilization, and to some extent the Greek population also, spread out over the regions around the eastern Mediterranean and the Euxine. Presently the conquests of Rome brought all these regions, as well as the western countries as far as Caledonia, under one government. This produced a uniform type of civilization which was Greek on the side of thought, of literature, and of art, Roman on the side of law and institutions. Then came Christianity which, in giving to all these countries one religion and one standard of morality, created a still deeper sense of unity among them. Thus the ancient world, omitting the barbarous North and the semi-civilized heathen who dwelt beyond the Euphrates, became unified, the backward races having been raised, at least in the upper strata of their population, to the level of the more advanced. One government, one faith, and two languages, were making out of the mass of races and kingdoms that had existed before the Macedonian conquest, a single people who were at once a Nation and a World Nation.

The process was not quite complete when it was interrupted by the political dissolution of the Roman dominion, first through the immigrations of the Teutonic peoples from the north, then by the terrible strokes dealt at the already weakened empire by the Arab conquerors from the south-east. The results that had been attained were not wholly lost, for Europe clung to the Greco-Romano-Christian civilization, though in a lowered form and with a diminished sense of intellectual as well as of political unity. But that civilization was not able to extend itself further, save by slow degrees over the north and towards the north-east. Several centuries passed. Then, at first faintly from the twelfth century onwards, afterwards more swiftly from the middle of the fifteenth century, when the intellectual impulse given by the Renaissance began to be followed by the rapid march of geographical discovery along the coasts of Africa, in America, and in the further east, the process was resumed. We have watched its later stages with our own eyes. It embraces a far vaster field than did the earlier one, the field of the whole earth. As we watch it, we are naturally led to ask what light the earlier effort of Nature to gather men together under one type of civilization throws on this later one. As Rome was the principal agent in the earlier, so has England been in the later effort. England has sent her language, her commerce, her laws and institutions forth from herself over an even wider and more populous area than that whose races were moulded into new forms by the laws and institutions of Rome. The conditions are, as we shall see, in many respects different. Yet there is in the parallel enough to make it instructive for the present, and possibly significant for the future.

The dominions of England beyond the seas are, however, not merely too locally remote from one another, but also too diverse in their character to be compared as one whole with the dominions of Rome, which were contiguous in space, and were all governed on the same system. The Britannic Empire falls into three territorial groups, the self-governing colonies, the Crown colonies, and the Indian territories ruled by or dependent on the sovereign of Britain. Of these three groups, since they cannot be treated together, being ruled on altogether different principles, it is one group only that can usefully be selected for comparison with the Roman Empire. India contains that one group. She is fitter for our purpose than either of the other two groups, because the self-governing colonies are not subject territories administered from England, but new Englands planted far away beyond the oceans, reproducing, each in its own way, the features of the constitution and government of the old country, while the Crown colonies are so scattered and so widely diverse in the character of their inhabitants that they cannot profitably be dealt with as one body. Jamaica, Cyprus, Basutoland, Singapore, and Gibraltar, have little in common except their dependence on Downing Street. Neither set of colonies is sufficiently like the dominion of Rome to make it possible for us to draw parallels between them and it. India, however, is a single subject territory, and India is compact, governed on the same principles and by the same methods over an area not indeed as wide as that of the Roman Empire but more populous than the Roman Empire was in its palmiest days. British India (including Burma) covers about 965,000 square miles, and the protected States (including Kashmir, but not Nepal and Bhotan), about 600,000 square miles, making a total of (roughly) 1,565,000 square miles, with a population of nearly 290 millions. The area of the territories included in the Roman Empire at its greatest extent (when Dacia and the southern part of what is now Scotland belonged to it) may have been nearly 2,500,000 square miles. The population of that area is now, upon a very rough estimate, about 210 millions. What it was in ancient times we have no data even for guessing, but it must evidently have been much smaller, possibly not 100 millions, for although large regions, such as parts of Asia Minor and Tunisia, now almost deserted, were then filled by a dense industrial population, the increase in the inhabitants of France and England, for instance, has far more than compensated this decline.

The Spanish Empire in America as it stood in the sixteenth and seventeenth centuries was still vaster in area, as is the Russian Empire in Asia to-day. But the population of Spanish America was extremely small in comparison with that of the Roman Empire or that of India, and its organization much looser and less elaborate[1]. Both the Spanish and the Russian Empires, however, furnish illustrations which we shall have occasion presently to note.

Footnote 1:

The total area of the Russian Empire exceeds 8,000,000 square miles, and the population is about 130,000,000.

Of all the dominions which the ancient world saw, it is only that of Rome that can well be compared with any modern civilized State. The monarchies of the Assyrian and Egyptian conquerors, like those of the Seleucid kings and of the Sassanid dynasty in Persia, stood on a far lower level of culture and administrative efficiency than did the Roman. Neither was there in the Middle Ages any far stretching dominion fit to be matched with that of Rome, for the great Ommiad Khalifate and the Mogul monarchy in India were both of them mere aggregates of territories, not really unified by any administrative system, while the authority or suzerainty of the Chinese sovereigns over Turkistan, Mongolia, and Tibet presents even fewer points of resemblance. So when we wish to examine the methods and the results of British rule in India by the light of any other dominion exercised under conditions even remotely similar, it is to the Roman Empire of the centuries between Augustus and Honorius that we must go.

When one speaks of conditions even remotely similar one must frankly admit the existence of an obvious and salient point of contrast. Rome stood in the middle of her dominions, Britain stands, by the Red Sea route, six thousand miles from the nearest part of hers. She can reach them only by water, and she conquered them by troops which had been sent round the Cape over some thirteen thousand miles of ocean. Here there is indeed an unlikeness of the utmost significance. Yet, without minimizing the importance of the contrast, we must remember that Britain can communicate more quickly with the most distant part of her territories than Rome could with hers. It takes only twenty-two days to reach any part of British India (except Kashmir and Upper Assam) from London. But it took a nimble, or as Herodotus says, a ‘well girt traveller,’ perhaps forty days from Rome to reach Derr on the Nile, the last fortress in Nubia where Roman masonry can be seen, or Gori, at the foot of the Caucasus, also a Roman stronghold, or Old Kilpatrick (near Dumbarton) where the rampart of Antoninus touches the Clyde; not to add that the sea part of these journeys might be much longer if the winds were adverse. News could be carried not much faster than an official could travel, whereas Britain is, by the electric telegraph, in hourly communication with every part of India: and the difference in speed between the movement of an army and that of a traveller was, of course, greater in ancient times than it is now.

Thus, for the purposes both of war and of administration, England is better placed than Rome was as respects those outlying parts of the Roman empire which were most exposed to attack. Dangers are more quickly known at head quarters; troops can reach the threatened frontier in a shorter time; errors in policy can be more adequately corrected, because explanations can be asked, and blundering officials can be more promptly dismissed. Nevertheless the remoteness of India has had results of the highest moment in making her relation to England far less close than was that of Rome to the provinces.

This point will be considered presently. Meantime our comparison may begin with the points in which the two Empires resemble and illustrate one another. The first of these turns upon the circumstances of their respective origins.

Empire is retained, says a famous maxim, by the same arts whereby it was won. Some Empires have been won easily. Spain acquired hers through the pertinacity and daring of a Genoese sailor. She had comparatively little fighting to do, for the only opponents she encountered, who added to valour some slight tincture of civilization, were the Mexicans.