c. 38), which declared that all marriages should be lawful which were

‘not prohibited by Goddis lawe,’ and that ‘no reservation or prohibition, Goddis lawe except, shall trouble or impeche any marriage without the Levitical degrees.’

Two principles, however, remained unaffected by the legislation of this period in England. The one was the indissolubility of marriage, a topic to which I shall presently return. The other was the freedom of entering into it, consent, and consent alone, being still all that was necessary to make a marriage valid[202]. England, of course, did not recognize the decrees of Trent, so the old law continued in force after that Council, though motives like those which had guided the Council induced the ecclesiastical courts to lean strongly in favour of the almost universal practice of marrying before a clergyman, and to require in all other cases very strict evidence that a true consent, directed to the creation of lawful matrimony, had in fact been given. Moreover, where the marriage had been irregular, the spiritual courts might compel its celebration in the face of the Church. So things went on, with much uncertainty and some confusion between the act needed to constitute marriage and the evidence of that act, till the middle of the eighteenth century, when a statute was passed in A.D. 1753 (26 Geo. II, c. 33) which required all marriages to be celebrated by a clergyman and in a church (unless by dispensation from the Archbishop of Canterbury), and prescribed other formalities[203]. These provisions remained in force (except as to Jews and Quakers) until 1836, when a purely civil marriage before a Registrar was permitted as an alternative to the ecclesiastical ceremony[204]. During the Commonwealth marriages had been contracted before justices of the peace, but the Restoration legislation, while validating the marriages so formed, abolished the practice. The old law remained in Ireland, and that was how the question what kind of marriage ceremony was required by the common law came before the House of Lords in the famous case of _Reg._ v. _Millis_, which was an Irish appeal, and the decision in which, declaring that by the common law the presence of a clergyman was required to make a marriage valid, seems to have been erroneous.

Footnote 202:

The House of Lords was equally divided upon this point in the case of _Reg._ v. _Millis_, in 1843; but historical inquiry tends to confirm the view of Lord Stowell, that the presence of a clergyman was not essential (see _Dalrymple_ v. _Dalrymple_, 2 Haggard, p. 54).

Footnote 203:

The English Dissenters soon began to complain of this Act, as they were thenceforth (until 1836) obliged to be married in church. Charles James Fox used to denounce the Act as ‘contrary to the Law of Nature.’

Footnote 204:

A civil marriage is not, however, compulsory in England as it is in France and some other continental countries. In Scotland it has now become fashionable for Presbyterians to be wedded in church, but the Scottish law, as every one knows, does not prescribe either a clergyman or a registrar.

XIII. PROPERTY RELATIONS OF THE CONSORTS UNDER ENGLISH LAW.

Now let us turn to the effect of marriage in the law of England upon the property and the personal rights of the wife.

That effect has generally been described as making the two consorts one person in the law. Such they certainly were for some purposes under the older Common Law of England. The husband has the sole management of all the property which the wife had when married, or which she subsequently received or earned by her exertions. In acquiring all her property he becomes also liable for the debts which she owed before marriage, but after marriage he has not to answer for any contract of hers, because her agreements do not bind him except for necessaries. He is, moreover, liable for wrongs done by her. He cannot grant anything to her, or covenant with her; and if there was any contract between him and her before marriage, it disappears by her absorption into his personality. She can bring no action without joining him as plaintiff, nor can she be sued without joining him as defendant. She cannot give evidence for or against him (save where the offence is against herself); and if she commit a crime (other than treason or murder) along with him, she goes unpunished (though for crimes committed apart from him she may be prosecuted), on the hypothesis that she did it under his compulsion. So in a case, in the thirteenth century, where husband and wife had produced a forged charter, the husband was hanged and the wife went free, ‘because she was under the rod of her husband’ (_quia fuit sub virga viri sui_[205]).

Footnote 205:

Pollock and Maitland, vol. ii. ch. vii. p. 404 (quoting Bracton, 429 b).

But this theory of unity is not so consistently maintained as was the similar theory of the Romans regarding the marriage with Hand power. For the wife’s consent to legal acts may be effectively given where she has been separately examined by the Court to ascertain that her consent is free; and even the fact that she must be joined in legal proceedings taken by or against her shows that she has a personality of her own, whereas under the Roman _manus_ she was wholly sunk in that of her husband. Thus it is better not to attempt to explain the wife’s position as the result of any one principle, but rather to regard it as a compromise between the three notions of absorption, of a sort of guardianship, and of a kind of partnership of property in which the husband’s voice normally prevails.

As respects her personal safety, she was better off than the Roman wife of early days, for the husband could punish the latter apparently even with death, after holding the domestic council, whereas the English husband could do no more than administer chastisement, and that only to a moderate extent. The marital right of chastisement seems to have been an incident to marriage in many rude societies. A traveller among the native tribes of Siberia relates that he found a leather whip usually hung to the head of the conjugal bed, almost as a sort of sacred symbol of matrimony; and he was told that the wife complained if her husband did not from time to time use the implement, regarding his neglect to do so as a sign of declining affection. And it would seem that this notion remains among the peasantry of European Russia to this day[206].

Footnote 206:

Kovalevsky, _Modern Customs and Ancient Laws of Russia_, p. 44.

Everybody has heard of the odd habit of selling a wife which still occasionally recurs among the humbler classes in England; and most people suppose that it descends from a time when the Teutonic husband could sell his consort, as the Roman one apparently could in the days of Hand power. There is, however, no trace at all in our law of any such right[207], though a case is reported to have arisen in A.D. 1302, when a husband granted his wife by deed to another man, with whom she thereafter lived in adultery[208].

Footnote 207:

My friend Mr. F. W. Maitland, whose authority on these matters is unsurpassed, informs me that he knows of no such trace. The practice, however, seems to have been not uncommon. Several instances of the sale of a wife by auction, sometimes along with a child, are reported from Kent between 1811 and 1820.

Footnote 208:

See Pollock and Maitland, vol. ii. p. 395.

The compensation given to the English wife for the loss (or suspension during the marriage) of her control over her property is to be found in her right of Dower, that is, of taking on her husband’s death one-third of such lands as he was seised of, not merely at his death, but at any time during the marriage, and which any issue of the marriage might have inherited. As this right interfered with the husband’s power of freely disposing of his own land, the lawyers set about to find means of evading it, and found these partly in legal processes by which the wife, her consent being ascertained by the courts, parted with her right, partly by an ingenious device whereby lands could be conveyed to a husband without the right of dower attaching to them, partly by giving the wife a so-called jointure which barred her claim. The wife has also a right, which of course the husband can by will exclude, of succeeding in case of intestacy to one-third of his personal property, or, if he leave no issue, to one-half.

This state of things hardly justifies the sleek optimism of Blackstone, who closes his account of the wife’s position by observing, ‘even the disabilities which the wife lies under are, for the most part, intended for her protection and benefit. So great a favourite is the female sex of the laws of England.’ The Romans, although they allowed to women a fuller independence, were more candid when they said: ‘In many points of our law the condition of the female sex is worse than that of the male.’

XIV. GRADUAL AMENDMENT OF THE ENGLISH MATRIMONIAL LAW.

However, the Courts of Equity ultimately set themselves in England to improve the wife’s condition. They recognized some contracts and grants between husband and wife. They allowed property to be given to trustees for the sole and separate use of a wife; and if it was given to her with an obvious intent that it should be for her exclusive benefit, they held the husband, in whom by operation of the general law it would vest, to be a trustee for the wife. When during marriage there came to a wife by will or descent any property of which the husband could obtain possession only by the help of a Court of Equity, they required him to settle a reasonable part of it upon the wife for her separate use. And in respect of her separate property, they furthermore permitted the wife to sue her husband, or to be sued by him. While these changes were in progress, there had grown up among the wealthier classes the habit of making settlements on marriage which secured to the wife, through the instrumentality of trustees, separate property for her sole use, and wherever a woman was a ward of Court, the Court insisted, in giving its consent to the marriage, that such a settlement should be made for her benefit.

By these steps a change had been effected in the legal position of women as regards property similar to, though far more gradual, and in its results falling far short of, the change made at Rome when the marriage without Hand power became general. But in England a recourse to the Courts has always been the luxury of the rich; and as the middle and poorer classes were not wont to go to the Courts, or to make settlements, it was only among the richer classes that the wife’s separate estate can be said to have existed. At last, however, the gross injustice of allowing a selfish or wasteful husband to seize his wife’s earnings and neglect her was so far felt that several Acts were passed (the first in 1857), under which a woman deserted by her husband may obtain from a magistrate a judicial order, protecting from him any property she may acquire after desertion. By this time an agitation had begun to secure wider rights for married women. It had great difficulties to overcome in the conservative sentiment of lawyers, and of those who are led by lawyers, and more especially of members of the House of Lords. Not till 1870 did the British Parliament take the step which the Romans had taken long before the Christian era, and which many American States had taken in the first half of the nineteenth century. A statute of that year, amended and extended by others of 1874 and 1882, swept away the old rule which carried all the wife’s property over to the husband by the mere fact of marriage; so that now whatever a woman possesses at her marriage, or receives after it, or earns for herself, remains her own as if she were unmarried, while of course the husband no longer becomes liable by marriage to her ante-nuptial debts. By these slow degrees has the English wife risen at last to the level of the Roman. The practice of making settlements on marriage still remains, especially where the wife’s property is large, or where there is any reason to distrust the bridegroom; for though the interposition of trustees is no longer needed to keep the property from falling by operation of law into the husband’s grasp, he may still press or persuade her to part with it, since she now enjoys full disposing power, and if she does part with it, she and the children may suffer. Thus custom sustains in England, and perhaps will long sustain, a system resembling that of the Roman _Dos_. Yet the number of persons possessing some property who marry without a settlement increases, as does the number of women whose strength of will and knowledge of business enables them to hold their own against marital coaxing or coercion.

It need hardly be said that the personal liberty of the wife was established long before her right to separate property. Says Blackstone (writing in 1763):—

‘The husband by the old law might give his wife moderate correction. For as he is to answer for her misbehaviour, the law thought it reasonable to entrust him with his power of restraining her, by domestic chastisement, in the same moderation that a man is allowed to correct his apprentices or children, for whom the parent is also liable in some cases to answer. But this power of correction was confined within reasonable bounds, and the husband was prohibited from using any violence to his wife _aliter quam ad virum, ex causa regiminis et castigationis uxoris suae, licite et rationabiliter pertinet_. But in the politer reign of Charles the Second this power of correction began to be doubted, and a wife may now have security of the peace against her husband, or, in return, a husband against his wife. Yet the lower rank of people, who were always fond of the old common law, still claim and exert their ancient privilege; and the Courts of Law will still permit a husband to restrain a wife of her liberty in case of any gross misbehaviour[209].’

Footnote 209:

Blackstone, _Commentaries_, vol. i. bk. i. chap. 15.

This touching attachment to their old common law still survives among ‘the lower rank of people’ in the form of wife beating. But among the politer classes the right to restrain a consort’s liberty (except under very special circumstances) may be deemed to have become exploded since the case of _Reg._ v. _Jackson_ in 1891[210]. So that now the English wife, like the Roman, may quit her husband’s house when she pleases, and the suit for restitution of conjugal rights, whereby either could compel the other to live in the common household, is falling into disuse, if indeed it can still be described as in any sense effective since the Act, passed in 1884, which took away the remedy by attachment.

Footnote 210:

1 Q. B. p. 671 (in the Court of Appeal). The judgements are instructive. The Master of the Rolls goes so far as to doubt whether the husband ever had a legal power of correction, a curious instance of the way in which the sentiment of a later time sometimes tries to force upon the language of an older time a non-natural meaning, the new sentiment being one which the older time would have failed to understand. It would have been simpler to admit that what may well have been law in the seventeenth century is not to be taken to be law now, manners and ideas having so completely changed as to render the old rules obsolete.

The interest which belongs to these changes in the law, changes generally similar in their result in the English and in the Roman systems, though far more gradually made in the former than in the latter, is the interest of observing the methods whereby custom and legislation have sought to work out different possible theories of the marriage relation. There are usually said to be two theories, that of Mastery, and that of Equality. On the former the husband is lord of the wife’s property as well as of her person. The law puts her at his mercy, trusting that affection, public opinion, and a regard for domestic comfort will restrain the exercise of his rights. On the other theory, each consort is a law to him- or herself, each can dispose of his or her property, time, and local presence without the assent of the other. The law allows this freedom in the hope that affection, respect, and the opinion of society will prevent its abuse. Yet these two theories, that with which both Rome and England began, that with which both Rome and England have ended, do not exhaust the possibilities of the relation. For there is a third theory which, more or less consciously felt to be present, has influenced both the one and the other, creating a sort of compromise between them. It is the theory of a partnership in social life and in property similar to the partnership which necessarily exists as regards the children of a marriage. This idea is expressed by the form which the Mastery theory took when it declared husband and wife to be ‘one person in the law,’ and in the Anglican marriage service where the wife’s promise to obey[211] is met by the husband’s declaration that he endows her with all his worldly goods. It also qualifies the theory of Equality and Independence by the practice of creating a settlement in England, and a _Dos_ (and _Donatio propter nuptias_) at Rome, in which each of the married pair has an interest.

Footnote 211:

This promise does not appear in the forms of marriage service commonly used by the unestablished churches of England, or most of them.

Any one can see that the Mastery theory, against which modern sentiment revolts, was more defensible in a time of violence, when protection for life and property had to be secured by physical force as well as by recourse to the law, than it is to-day. Any one can also see that there are even to-day households for which the Mastery theory may be well suited, as there also are, and always have been, even in days of rudeness and in Musulman countries, other households where the wife was, and rightly was, the real head of the family. Those moreover who, judging of other times by their own, think that the position of the wife and of women generally must have been, under the Mastery theory, an intolerable one, need to be reminded not only that the practical working of family life depends very largely on the respective characters of the persons within the family, and on the amount of affection they entertain for one another, but also that it is profoundly modified by the conception of their relations which rules the minds of these persons. Law, itself the product and the index of public opinion, moulds and solidifies that conception, and the wife of the old stern days of marital tyranny saw no indignity or hardship in that position of humble obedience which the independent spirit of our own time resents.

XV. DIVORCE UNDER THE CANON LAW.

There is one more point in which opposite theories of marriage have to be contrasted, and in which the contrast appears most strikingly. This is the point which touches the permanence of the relation.

We have already seen what were the provisions of the Roman law upon the subject of Divorce. Those provisions continued to prevail in Western Europe after the fall of the Empire, until, apparently in the eighth, ninth, and tenth centuries, new rules enforced by the Church superseded them in the regions where the imperial law had been observed. A similar change occurred later in other countries such as England and Germany, where the ancient customs of the barbarian tribes had allowed the husband, and apparently in some cases the wife also, to dissolve the marriage and depart. From the twelfth century onwards the ecclesiastical rules and courts had undoubted control of this branch of law all over Christian Europe. Now the Church held marriage to be a sacrament and to be indissoluble. Divorce, therefore, in the proper sense of the term, as a complete severance of a duly constituted matrimonial tie, was held by the Church inadmissible. This view was based on the teaching of our Lord as given in the Gospels[212], and was enforced on every bridal pair in the liturgical form employed at marriage, as indeed it is in the English liturgy to-day. Nevertheless, the Church recognized two legal processes which were popularly, though incorrectly, called divorces.

Footnote 212:

Messrs. Pollock and Maitland refer to the dooms of Aethelbert as showing the permissibility of divorce in early English law (_History of English Law_, vol. ii. p. 390).

One of these, called the divorce from the bond of marriage (_a vinculo matrimonii_), was in reality a declaration by ecclesiastical authority—that of the Pope, or a deputy acting under him—that the marriage had been null from the beginning on the ground of some canonical impediment, such as relationship or pre-contract. As already observed, the rules regarding impediments were so numerous and so intricate that it was easy, given a sufficient motive, whether political or pecuniary, to discover some ground for declaring almost any marriage invalid. The practice of granting divorces of this class, which was constantly made a means of obliging the great ones of the earth and augmenting papal revenues, may sometimes have been really useful for the purpose of dissolving the ill-assorted unions of those who could secure a decree from the ecclesiastical authorities. Technically, however, it was not a dissolution of marriage, but a declaration that no marriage had ever existed, and therefore it rendered children born in the relation illegitimate[213].

Footnote 213:

But canonical ingenuity discovered methods by which in some cases the legitimacy of the children might be saved though the marriage was declared void.

The other kind of divorce was that called ‘from board and bed’ (_a mensa et thoro_). It was a regular part of the jurisdiction of the Church Courts, and effected a legal separation of the two parties from their joint life in one household, while leaving them still man and wife, and therefore unable to marry any other person. The status of the children was of course not affected.

XVI. THE LATER LAW OF DIVORCE IN ENGLAND AND SCOTLAND.

This law prevailed over all Europe till the Reformation, and continued to prevail in all Roman Catholic countries till a very recent time. In some it still prevails, at least so far as Roman Catholics are concerned. But in most Protestant countries it received a fatal shock from the denial, in which all Protestants agreed, of the sacramental character of marriage, and from the revival, in some of such countries, of the view of marriage as a purely civil contract. Thus in Scotland the courts began, very soon after the Roman connexion had been repudiated, to grant divorces; and in A.D. 1573 a statute added desertion to adultery as a ground for divorce. In England, however, where the revulsion against the doctrines of mediaeval Christianity was less pronounced, and where the Ecclesiastical Courts retained their jurisdiction in matrimonial causes, the old law went on unchanged, save that after the abolition of many of the canonical impediments, mentioned above, divorces _a vinculo_, declaring marriages to have been originally invalid, became far more rare. Nevertheless, attempts had been made by some of the more energetic English Reformers to assert the dissolubility of marriage. A draft ecclesiastical code (called the _Reformatio legum ecclesiasticarum_) was prepared, but never enacted; and Milton argued strongly on the same side in his well-known but little read book. About his time cases begin to occur in which marriages were dissolved by Acts of Parliament; a practice which became more frequent under the Whig régime of the early Hanoverian kings, and ultimately ripened into a regular procedure by which those who could afford the expense might secure divorces. The party seeking divorce was required to first obtain from the Ecclesiastical Court a divorce _a mensa et thoro_, which obtained, he introduced his private Bill for a complete divorce. It was heard by the House of Lords as a practically judicial matter, in which evidence was given, and counsel argued the case for and (if the other party resisted) against the divorce. It was usually by the husband that these divorce Bills were promoted, and indeed no wife so obtained a divorce till A.D. 1801[214].

Footnote 214:

There had also sprung up the practice of effecting private separations between a husband and a wife by means of a deed executed by each of them, and such a deed presently came to be recognized as a defence to a suit by either party for the restitution of conjugal rights.

This characteristically English evasion of that principle of indissolubility for which such immense respect was professed lasted till 1857, long before which time the existence of a law which gave to the rich what it refused to the poor had become a scandal[215]. In that year an Act was passed, not without strenuous opposition from those who clung to the older ecclesiastical theory, which established a new Court for Divorce and Matrimonial causes, empowered to grant either a complete dissolution of marriage (divorce _a vinculo matrimonii_) or a ‘judicial separation’ (divorce _a mensa et thoro_). This statute adhered to the rule which the practice of the House of Lords had established, and under it a husband may obtain a divorce on proof of the wife’s infidelity, whereas the wife can obtain it only by proving, in addition to the fact of infidelity on the husband’s part, either that it was aggravated by bigamy or incest, or that it was accompanied by cruelty or by two years’ desertion. To prevent collusion a public functionary called the Queen’s Proctor is permitted to intervene where he sees grounds for doing so. Misconduct by the husband operates as a bar to his obtaining a divorce. Thus the law of England stands to-day. Attempts have been made to alter it on the basis of equality, so that whatever misconduct on the wife’s part entitles a husband to divorce shall, if committed by the husband, entitle her likewise to have the marriage dissolved. But these attempts have not so far succeeded[216].

Footnote 215:

Probably the English Jews were permitted to exercise in the seventeenth and eighteenth century the right of divorce which their own law gave them. But in those days the Jews were so cut off from the general English society that the phenomenon passed almost unnoticed. They were a very small community, living practically under their personal law, as the Parsis do in Western India to-day.

Footnote 216:

The Act of 1857 (amended in some points by subsequent statutes) contains provisions intended to prevent collusion between the parties, and empowers the Court to regulate the property rights of the divorced persons and the custody of the children (if any) of the marriage.

The law of Scotland is more indulgent, and not only permits a wife to obtain divorce for a husband’s infidelity alone, but also recognizes wilful desertion for four years as a ground for divorce. In other respects its provisions are generally similar to those of the English law. Ireland, however, remains under the old pre-Reformation system. There is no Divorce Court, and no marriage can be dissolved save by Act of Parliament. The bulk of the people are Roman Catholics, and among Protestants as well as Roman Catholics the level of public sentiment and of conjugal morality has apparently been higher than in England, nor have attempts been made, at any rate in recent years, to obtain the freedom which England and Scotland possess. The United Kingdom thus shows within its narrow limits the curious phenomenon of three dissimilar systems of law regulating a matter on which it is eminently desirable that the law should be uniform. England has a comparatively strict rule, and one which is unequal as between the two parties. Scotland is somewhat laxer, but treats both parties alike. Ireland has no divorce at all. So little do theoretical considerations prevail against the attachment of a nation to its own sentiments and usages.

I reserve comments on these systems till we have followed out the history of the English matrimonial law in the widest and most remarkable field of its development, the United States of America.

XVII. THE DIVORCE LAWS OF THE UNITED STATES.

When the thirteen Colonies proclaimed their separation from Great Britain in 1776, they started with the Common Law and all such statute law as had in fact been in force at the date of the separation. Accordingly they had no provision for dissolving marriages, nor any Ecclesiastical Courts to grant dissolutions, seeing that such tribunals had never existed in America, where there had been no bishops. Presently, however, they began to legislate on the subject, and the legislation which they, and the newer States added to the Union since 1789, have produced presents the largest and the strangest, and perhaps the saddest, body of legislative experiments in the sphere of family law which free, self-governing communities have ever tried. Both marriage and divorce belong, under the American Constitution, to the several States, Congress having no right to pass any laws upon the subject, except of course for the District of Columbia and the Territories. Thus every one of the (now) forty-five States has been free to deal with this incomparably difficult and delicate matter at its own sweet will, and the variety of provisions is endless. As it would require a great deal of space to present these in detail, I shall touch on only some salient points.

Originally, the few divorces that were granted were obtained, following the example of England, by means of Acts of the State legislature. The evils of this plan were perceived, and now nearly all the States have by their Constitutions forbidden the legislature to pass such Acts, since Courts have been provided to which application may be made. These are usually either the ordinary inferior Courts of the State, or the Chancery Courts (where such survive). No State seems to have, like England, erected a special Court for the purpose. One State only, South Carolina, does not recognize divorce at all. In 1872, under the so-called ‘carpet-bagger government,’ set up after the War of Secession, a statute was passed in that State authorizing divorces for infidelity or desertion, but in 1878, when the native whites had regained control, this statute was repealed, so that now, if a divorce is obtained at all, it must be obtained from the legislature outside the regular law. South Carolina has the distinction of being to-day probably the only Protestant community in the world which continues to hold marriage indissoluble. No State has fewer Roman Catholic citizens: Presbyterians and Methodists are the strongest religious bodies.

The causes for which divorce may be granted range downwards from the strictness of such a conservative State as New York, where conjugal infidelity is the sole cause recognized for an absolute dissolution of the marriage, to the laxity of Washington, where the Court may grant divorce ‘for any cause deemed by it sufficient, and when it shall be satisfied that the parties can no longer live together.’ Desertion is in nearly all States recognized as a ground for dissolution. So is cruelty by either party, or the reasonable apprehension of it by either. So in many States the neglect of the husband to provide for the wife, habitual intemperance, indignities or insulting treatment, violent temper, and (in a smaller number) the persistent neglect of her domestic duties by the wife, grave misconduct before marriage unknown to the other party, insanity, an indictment for felony followed by flight, vagrancy, are, or have been, prescribed as among the sufficient grounds for divorce. In some States a sentence of imprisonment for life _ipso iure_ annuls the marriage of the prisoner, permitting the other partner to remarry, and, in most, conviction for felony or infamous crime is a ground on which the Court may decree, and presumably will decree, the extinction of the marriage. Moreover, there are still a few States where over and above the judicial process open to a discontented consort, the State legislature continues to grant divorces by special statutes. Delaware is, or very recently was, such a State; and in the twenty years preceding 1887 it would seem that four-fifths of its divorces, not indeed very numerous (289 for twenty years), were so obtained. The laws of most States also provide for what the Americans call a ‘limited divorce,’ and the English a ‘judicial separation,’ equivalent to the old divorce _a mensa et thoro_. It leaves the marriage still valid, but relieves the parties from any obligation to live together; and in some States the Court in pronouncing a decree of divorce may change the name of the wife (in Texas and Arizona the name of either party), while in Vermont it may also change the names of the children who are minors.

Not less remarkable than the multiplication of grounds for divorce in the American States is the extreme laxity of procedure which has grown up. The Courts having jurisdiction are usually the Courts of the county, tribunals of no great weight, whose ill-paid judges are seldom men of professional eminence. The terms of residence within a State which are required before a petitioner can apply for a divorce are generally very short. The provisions for serving notice on the respondent or defendant to the divorce suit are loose and seem to be carelessly enforced. Some States allow service to be effected by publication in the newspapers, if the other party be not found within the State, and this of course often happens when the applicant has recently come to the State, most likely a distant one, from that in which he or she lived with the other consort. Frequently he comes for the express purpose of getting his marriage dissolved. Although most States declare collusion or connivance by the other party to be a bar to the granting of a divorce, and some few States provide that a public official shall appear to defend in undefended petitions, the provisions made for detecting these devices are inadequate; and in not a few cases the proceedings do little more than set a judicial seal upon that voluntary dissolution by the agreement of the two consorts, which was so common at Rome. It is doubtless a point of difference between the Roman law and that of modern American States that in the former the parties could by their own will and act terminate the marriage: in the latter the Courts must be invoked to do so. But where the Courts out of good-nature or carelessness make a practice of complying with the application of one party, unresisted or feebly resisted by the other, this difference almost disappears. The facilities which some of the more lax States hold out to those who come to live in them for the requisite period, and who then procure from the complaisant Court a divorce without the knowledge of the other consort, constitute a grave blot on the administration of justice in the Union generally, for a marriage dissolved in one State (where jurisdiction over the parties has been duly created) is _prima facie_ dissolved everywhere[217]; and although the decree might conceivably be reversed if evidence could be given that it had been improperly obtained, it is usually so difficult to obtain that evidence that the injured party, especially an injured wife, must perforce submit.

Footnote 217:

In two or three States the law provides that when an inhabitant goes into some other State for the purpose of getting a divorce for a cause arising within the State, or for a cause which the law of the State would not authorize, a divorce granted to him shall have no effect within the State.

XVIII. STATISTICS OF DIVORCE IN AMERICA.

Under these lax laws, and the not less lax administration of them, the number of divorces has in the United States risen with formidable rapidity. In 1867 there were 9,937 granted, in 1886, 25,535, an increase of nearly 157 per cent. in twenty years. The total number recorded to have been granted in those twenty years (and the record is probably not quite complete) is 328,716, a ghastly total, exceeding all the divorces granted in the same years in all other Christian countries[218]. The population of the Republic increased about 60 per cent. within the same twenty years. Taking the two census years 1870 and 1880, the percentage of increase was, for the population, 30·1, for divorce, 79·4, or more than twice as great; and while in many States the percentage of divorce increase is far larger than 79·4, there are only five in which divorce has not grown faster than population.

Footnote 218:

In Canada during the same twenty years only 135 divorces were granted in a population which was, in 1881, 4,324,000. In some provinces of the Dominion divorces could be obtained only by private Act of Parliament.

The increase is most rapid in the south-western States, in several New England States, and especially in the States of the far West, less marked in the north Atlantic States generally, and in those between the Atlantic and the Mississippi. It is greater in cities than in rural districts[219].

Footnote 219:

In an interesting article in the _Political Science Quarterly_ for March, 1893, Mr. W. F. Willcox (now (1900) of the U. S. Census Office) argues that the divorce rate is influenced by depression of trade, declining when the lower middle and working class, among whom it is frequent, are less able to afford it.

Mr. Willcox quotes some remarkable figures from Japan showing an extremely high divorce rate there. In 1886 there were in Japan 315,311 marriages and 117,964 divorces. This is four and a-half times the rate in the U. S. of America, which comes next.

It is, in the South, apparently somewhat greater among the coloured people than among the whites[220]. It is greater among native-born Americans than among immigrants from Europe. And it need hardly be said that it is far larger among Protestants than among Roman Catholics. These points deserve to be remembered, because they throw some light on the causes which have produced the increase.

Footnote 220:

The conditions prevailing among a coloured population which had, under slavery, no legal marriage, go far to explain this phenomenon.

Some other facts to be noted before we pass on to consider those causes are the following.

The grounds on which divorces have been granted are often trivial, even frivolous. I select a few from a long list given in the American Official Report dealing with the subject[221].

Footnote 221:

This Report, published in 1889 by the United States Labour Bureau at Washington, contains many instructive data. The Annual Reports of the voluntary Association, called the League for the Protection of the Family, also deserve to be consulted. Its corresponding secretary is the Rev. Dr. S. W. Dike of Auburndale, Mass., who has written a number of thoughtful articles upon the subject, and to whom I am much indebted for documents supplied to me and for the expression of his own views.

A wife alleges that her husband has accused her sister of stealing, thereby sorely wounding her feelings.

Another says, ‘During our whole married life my husband has never offered to take me out riding (= driving). This has been a source of great mental suffering and injury.’

Another complains that her husband does not wash himself, ‘thereby inflicting on plaintiff great mental anguish.’

Another says that her husband ‘quotes verses from the New Testament about wives obeying their husbands. He has even threatened to mash the plaintiff, and has drawn back his hand to do it.’ The decree which awarded a divorce to this wife contains the following: ‘I find that when plaintiff was sick and unable to work defendant told her the Lord commanded her to work, and that he was in the habit of frequently quoting Scriptural passages in order to show her she was to be obedient to her husband.’

A wife alleges that her husband does not come home till ten o’clock at night, and when he does return he keeps plaintiff awake talking. He also keeps a saloon, which sorely grieves mind of plaintiff. He replies, saying, ‘Plaintiff should not be ashamed of him because temporarily in the liquor business: that he may do better some day: his father was a high State Officer in Germany.’ This wife gets a divorce on the ground of ‘mental cruelty.’

In all these cases, and in many others enumerated in the Report where the grounds are equally slight, the divorce is granted. And similar cases are given in which the husband obtains divorce on the ground of the wife’s cruelty.

‘Mental cruelty’ is of course a term hard to define, as may be seen by examining the views that have been expressed by English judges on cruelty, and it is not wonderful that the easy-going courts of most American States should give a wide extension to such an elastic conception.

Of the causes recorded as those for which marriages are dissolved, the most frequent are Desertion, which represents 38·5 of the whole number of divorces; then Infidelity; then Cruelty; then Intoxication. Of the total number of divorces granted during the twenty years 1867-1886, 65·8 per cent., very nearly two-thirds, were granted to wives and 34·2 per cent. to husbands. Of the total number granted for infidelity 56·4 per cent. were granted to husbands and 43·6 to wives. But in the other chief causes wives are more frequently the successful applicants. In cruelty they obtain seven times as many decrees; in desertion one and a-half times as many; in intoxication eight times as many. The Report, however, shows that intemperance is either directly or indirectly responsible for a larger proportion of the total cases than its place in the table represents.

I take from a valuable paper by an Ohio lawyer (Mr. Newton D. Baker)[222] some facts which illustrate the state of things in one of the so-called ‘Western Reserve’ counties in that great State. In Cuyahoga county the total yearly number of marriages is about 3,400, and the number of divorce suits annually brought is about 500. In the year 1898-1899, the whole number of divorce suits brought in the Court of Common Pleas was 562 out of a total number of 3,848 suits for all causes, _i.e._ about 12 per cent. In the State of Ohio the annual number of marriages is from 33,000 to 40,000; the total number of divorce suits brought from 3,700 to 4,200; and the total number of divorces granted annually about 3,000 in a population of about 4,000,000. Mr. Baker observes that ‘five of the causes on which the law allows divorce, viz. wilful absence of either party from the other for three years, extreme cruelty, fraudulent contract, any gross neglect of duty, and habitual drunkenness for three years, are all so vague and elastic as to amount to unrestricted licence in the matter of divorce.’ Out of 366 divorces granted in the year 1898-1899, wilful absence and gross neglect of duty accounted for 150, extreme cruelty for 109, habitual drunkenness for 88, and infidelity for 14 only (five being unaccounted for). He adds, ‘The personal temper and disposition of individual judges (there are more than eighty in the State entrusted with power to dissolve marriages) have come to be so well recognized as the limits of the jurisdiction of the Common Pleas Court in granting divorces, that now it is the practice of many lawyers to continue and delay the hearing of divorce causes until some judge, known to be lenient in this matter, rotates to the bench of the Court in which such cases are set for hearing.... Many of the judges appear to be oblivious to the fact that one of the most important interests of society is at stake in every divorce proceeding, and either out of unscientific ideas upon the subject, or out of mere complaisancy towards attorneys and litigants, they have lent themselves to a looseness of practice which is in some degree responsible for the deplorable results.’

Footnote 222:

_Western Reserve Law Journal_ for October, 1899.

In the United States applications for divorce are mostly made after a marriage of short duration. In one-half of the cases divorce was granted within six years from the date of marriage. Oddly enough, the average duration of a marriage terminated by divorce varies much between State and State. It is shortest in the southern States, falling to 6·48 years in Arkansas, and 6·91 in Tennessee, highest in the north-east, rising to 11·69 in New Jersey, and 12·12 in Massachusetts. This may be partly due to the fact that the more conservative States require a longer period of desertion to be proved. The duration of marriage is somewhat longer in cases where the wife applies, which may indicate either that she is more patient under her lot than the husband, or that her comparative ignorance of the world makes her less able to resort to the Courts. The fact that desertion is the cause most frequently assigned by wives may also have its effect.

It would be important to know what proportion the desire to marry some one else bears to the other causes which induce persons to seek to escape from their existing wedlock. Unfortunately American statistics of marriage, which are in many States loosely kept, do not enable us to answer this question[223]. Practising lawyers say that nothing is commoner. It would appear, however, from some European[224] figures that there is in reality no greater tendency for divorced men, and scarcely any greater tendency for divorced women, to remarry within a few years of the dissolution of their marriage than there is for widowers and widows to do so after the death of a consort; and it has often been observed that persons who have been most happily married are among those most likely to marry again.

Footnote 223:

The Report for 1891 of the League for the Protection of the Family says: ‘Connecticut for two years reports the number of divorced persons married each year. In 1889 there were 286 such—135 men and 151 women, which is a little above one-third the number divorced in the year. In 1890 there were 477 divorces granted, or 954 individuals divorced; and there were 350 divorced persons—this year 207 women and 143 men—who married again during the year. An extended induction along this line should be possible. Guesses based on mere observation are untrustworthy guides in legislation or social reform.’

The rapid growth of divorce under the hasty legislation which marked the first half of the present century began about thirty years ago to create some alarm in the United States. The subject was much discussed, an association was formed to grapple with the evil, and in several States laws were passed restricting a little the causes entitling persons to be divorced[225]. In those States there has accordingly been some slight diminution in the number of divorces granted, but elsewhere the rate has gone on increasing, though apparently (for there are no very recent statistics) a little more slowly than it was doing down to 1886. In some States it seems, after increasing, to have now reached a stable average to the population. This would appear to be the case in Switzerland also.

Footnote 224:

This point has been worked out by M. Bertillon, a well-known French statistician. I owe my knowledge of it to an acute and suggestive paper (some of whose conclusions however seem to me questionable) by Mr. W. F. Willcox, of Cornell University, New York. ‘The Divorce Problem’: New York, 1891.

Footnote 225:

Efforts have recently been made to induce States to adopt identical legislation on this among other topics; and there seems to be a prospect that a certain number will do so.

XIX. DIVORCE IN MODERN EUROPEAN COUNTRIES.

It is not only in America that the evil grows. In all modern countries where divorce is permitted, that is to say in all Protestant and some Roman Catholic States, the same tendency is perceptible. Among the Protestant nations the impulse of the Reformation caused sooner or later a rejection of the old canonical doctrine of indissolubility; so we may say, speaking broadly, that in Germany, Switzerland, Holland, Denmark, Sweden and Norway, a marriage may be dissolved not only for the infidelity of either party (since in all these countries husband and wife are treated alike), but also for desertion and imprisonment for crime. Some laws go even further, allowing mutual consent to be a cause. Among Roman Catholic countries, France retained the canonical rule till the Revolution. The legislation of 1792 granted extreme freedom, which was so largely used that we are told that in 1797 there were more divorces than marriages. In 1816 the principles of Catholicism regained control, and held it till 1884, when a law was passed permitting marriages to be dissolved for the infidelity of either party, or for the condemnation of either to an infamous punishment, and authorizing the transmutation into an absolute divorce of a judicial separation which has lasted for three years. The law of Belgium is similar, but goes a little further in allowing mutual consent to be a ground, though one surrounded by many restrictions. Austria and Hungary allow divorce (under rules similar to those of Protestant countries, _i.e._ on the grounds of infidelity, grave crime, desertion, cruelty, &c.) to non-Catholic citizens, while Italy, Portugal, and Spain adhere to the Tridentine system which recognizes only a judicial separation (_a mensa et thoro_) and not a dissolution of the tie. Russia still leaves matrimonial causes to the ecclesiastical courts, but allows them to dissolve marriages on the ground of infidelity, a heavy criminal sentence, or disappearance of one consort for five years[226].

Footnote 226:

According to a high Russian authority, divorce was freely practised by the Russian peasantry under their ancient customs.

In nearly all these countries such statistics as are available show an increase in the number of divorces during recent years. For instance in Belgium, a predominantly Roman Catholic country, divorces rose between 1884 and 1893 from 221 to 497. In France the suits for divorce rose from 1773 in 1884 to 7445 in 1891. The number of divorces compared with the number of marriages almost doubled in those seven years. In the German Empire there were 5342 divorces granted in 1882 and 6178 in 1891. In Holland they were, in 1883, 189, in 1892, 354. A like period saw them rise in Sweden from 218 to 316, in Norway from 7 to 82(!), in Greece from 251 to 788. The rise is slighter in Austria. Switzerland alone, though its law is comparatively lax, shows no increase[227]. In England divorces rose from 127 in 1860 to 390 in 1887, an increase much more rapid than that of population or of marriages[228]. Judicial separations rose between the same years from 11 to 50. In Scotland divorces which in 1867 numbered 32 had, in 1886, grown to 96, a still more rapid rise, as it covers only twenty instead of twenty-seven years. It is worth noting that in England it is usually the husband who petitions for a divorce, and almost always the wife who seeks a judicial separation.

Footnote 227:

I take the above figures from _Parliamentary Paper_ [C-7639] of 1895. No figures are given for Russia or Denmark.

Footnote 228:

Parliamentary Return of March 9, 1889.

The growth in so many otherwise dissimilar countries of this disposition to shake off the marriage tie is a remarkable phenomenon, which deserves more attention than it seems to have yet received in England. Though strongest in Protestant countries, it is not confined to them, as appears from the instances of Belgium, Bavaria and Greece. Though there is no divorce _a vinculo_ in Italy or Spain, the same causes which make it frequent elsewhere may be at work, though less conspicuously, in countries where the State aids the Church in checking their outward manifestation. Divorce is an obtrusive symptom of the disease, not the disease itself.

What is the disease? or, lest we should seem to prejudge the merits of the matter, what is the source of this disposition to look upon the marriage tie with eyes different from those of a century ago, and to yield more easily to the temptation to dissolve it? The cause, whatever it is, must lie deep, for it manifests itself under many different conditions; and it may possibly be not any single cause, but a combination of several concurrent social or moral changes, independent springs whose confluence swells the stream of tendency.

A similar phenomenon happened once before in history. At Rome also, as we have already seen, a very strict theory of marriage and a corresponding strictness in practice gave way to great laxity of the law and, after a short interval, to unbounded licence in practice. Let us see whether we can, by examining the phenomena which brought about this change in the greatest of ancient States, hit upon any clue that may serve to explain the facts of our own time.

XX. COMPARISON OF THE PROCESS OF CHANGE AT ROME AND IN THE MODERN WORLD.

The Romans began with a doctrine of marriage which had four salient characteristics[229]:

A formal legal act almost invariably accompanying marriage. A religious element in the oldest form of this act. A subjection of the wife to the husband’s power. A complete absorption of the wife’s property rights into the legal personality of the husband.

Footnote 229:

See above, p. 388 sqq. Although no formal legal act and no religious rites were absolutely required for marriage at the time when we first discover the Roman Law as a working system, the practice of using either such an act or such rites was all but universal.

These characteristics all vanished; and under the newer law and custom of the city, and ultimately of the Empire—

The act of marriage required no formalities, and was entirely a private affair. It was also a purely civil, not a religious, affair. The wife became absolutely independent of her husband, remaining (unless she had been emancipated) in the legal family of her father. The wife’s property remained her own, though it was usual for the consorts to have some joint property.

Concurrently with and following on these changes there had come about in Rome a general decline of faith in the old deities, a faith partially, but not beneficially, replaced by Oriental superstitions. There had also come habits of luxury, a thirst for material enjoyment, a passion for amusements, a general relaxation of the moral restraints which public opinion had formerly imposed. Marriage had begun to be regarded mainly from the point of view of pecuniary interest or social advancement. There was comparatively little sentiment attaching to it, and not much sense of duty. Men grew less and less willing to marry; women as well as men less and less faithful. Fewer children were born. As neither religious nor moral associations sanctified the relation, and as it could be terminated at pleasure, it was lightly entered on, and this very heedlessness, making it frequently a failure, caused it to be no less lightly dissolved. Thus social habits and a standard of opinion were formed, against which the reforming efforts of Augustus and his successors could do little, and which resisted even the far more powerful efforts of Christianity, until Roman society itself went to pieces in the West, and passed into new forms in the East.

This decadence of the matrimonial relation was doubtless facilitated by three peculiarities of the law, viz. the absence of all prescribed forms for marriage and divorce, which set caprice free from legal restraints or delays, the extinction of any necessary connexion as regards property between the two spouses[230], and the fact that the legal family did not coincide with the natural family, for legally the wife remained in her father’s family and did not enter her husband’s. Nevertheless the underlying causes of that decadence were social and moral rather than legal causes.

Footnote 230:

The _Dos_ supplied a connexion, but the wife’s right to claim it at the end of the marriage was not greatly affected by her conduct (see pp. 397 and 406 _supra_).

In the modern world the change from the old state of things to the new has been slower and less complete. Still it offers a kind of parallel to the phenomena we have been considering.

Before the Reformation what were the features of the marriage relation in Europe?

It had a strongly religious character. Its formation was blessed by the Church. It was deemed a Sacrament. It was treated, for doctrinal reasons, as indissoluble. There were, to be sure, plenty of marriages essentially unhallowed, plenty of marriages contracted for the most sordid reasons, plenty of marriages with little affection; and there were also marriages tainted by sin. The standard of conjugal fidelity was in the fifteenth century a low one. Nevertheless the tie was deemed to be one which religion sanctified, and religious sentiment must have had a restraining effect upon tender consciences, and particularly upon the wife, women being usually more susceptible to religious emotion than men are.

It gave the husband, in most countries, and notably in England, an almost complete control over the property rights of the two spouses, and in this way held them together.

It gave the husband, and notably in England, almost complete control over the person and conduct of the wife, impressing upon her mind her dependence on him, and her duty to obey him. No doubt where the wife’s intellect or will was the stronger of the two her intellect guided or her will prevailed. Nevertheless her normal attitude was that of a submissive identification of her wishes and interests with his.

Whether these things made for affection, and for happiness, the outcome of affection, is another question. What we have to remark is that at any rate they drew the bond very tight, and formed a solid basis for family life. Bride and bridegroom took one another for richer for poorer, for better for worse, in sickness and in health, till death should them part.

What has been the course of things since the Reformation?

In Protestant countries the religious character of marriage has been sensibly weakened. Although the ceremony, in most of such countries, and notably in England, still usually receives ecclesiastical benediction, the tie is not to men’s or even to women’s minds primarily a religious tie. To most Protestants, the wedding service in church, or before a minister of religion, is rather an ornamental ceremony than essentially a sacred vow. The duties of the spouses are conceived of by them in a more or less worthy way, according to their respective religious and moral standards, but not generally, or at least seldom vividly, as a part of their duties towards God.

This is perhaps part of that general decline in the intensity of the feeling of sin which marks the Protestantism of our own time as compared with that of earlier centuries. I do not mean that people are any more sinful than they were—probably they are not. They were sinful enough in the seventeenth century. But wrong-doing presents itself more frequently to all but the most pious minds rather as something unworthy, something below their standard of honour, something disapproved by public opinion, than as something which deserves the wrath of God, and affects their true relation to Him as their Father. Thus the element of sin in any breach, be it slight or be it grave, of conjugal duty, would seem to be less present to the conscience of the average husband or wife now than it was formerly, at least if we are to take the literature (including the theological literature) of former times, when set beside that of our own, to be any guide.

The inquiry how far any similar change has passed upon sentiment in Roman Catholic peoples would lead us far, nor am I competent to pursue it. The conception of sin itself is not quite the same thing to pious Catholics as it is, or was, to pious Protestants. But, broadly speaking, marriage doubtless retains to Roman Catholics, and to the Orthodox church of the East, more of a sacred character than it does to Protestants, and the change in this respect from the sixteenth to the nineteenth century is doubtless greater among Protestants.

XXI. TENDENCIES AFFECTING THE PERMANENCE OF THE MARRIAGE TIE.

In most countries, and notably in England and the United States, married women have obtained power over their own property, including their earnings, and are now less dependent upon their husbands for support than they were formerly.

In most countries married women have far greater personal independence than in earlier days. They can dispose of their lives as they please, and are permitted both by law and by usage an always increasing freedom of going where and doing what they will. For social purposes, they are in England (at least those who belong to the upper and middle classes are), and still more in the United States, though somewhat less in such countries as Germany and Sweden, entirely the equals of men, so that the retention of the promise to obey in the marriage service of the English Church excites amusement by its discrepancy from the facts.

Over and above these changes directly affecting the matrimonial relation, there are other changes which have modified life and thought. The old deference to custom and tradition, and therewith the stability of the social structure as a whole, have been weakened. Men move much more from place to place, so their minds have grown less settled. The habit of reading, and in particular the excessive reading of newspapers, may have produced a quickness of apprehension, but it has been accompanied by a measure of volatility and inconstancy in opinion. These in their turn have bred a liking for novelty and excitement, and have confirmed the disposition to question old-established doctrines. There is an increase, especially among women, of the things called ‘self-consciousness’ and ‘nervous tension.’ Both men and women are more excitable, and women in particular are more fastidious. Pleasures other than material are probably more appreciated, but the desire for pleasure, and the belief that every one has a right to it, seem to be stronger and more widely diffused than ever before. Some will perhaps add that, in an age when the belief in a future state of rewards and punishments is less deep and less general than it once was, the desire to have out of this life all the pleasure it can be made to yield is naturally stronger; yet I doubt whether beliefs regarding a future life have ever influenced men’s conduct so much as the whilom universality of those beliefs might lead us to assume.

All these tendencies are partly due to, and are certainly much increased by, that aggregation of population into great cities which makes one of the most striking contrasts between our time and the ages which formed English and American character. It is in industrial and progressive communities, such as those of Germany, Belgium, France, and England, that these tendencies are most pervasive and effective. They are even more pervasive and multiform in the United States than in Europe. It would be strange indeed if they did not affect the theory and the practice of domestic relations and the conception of the family. And their influence will evidently be greatest in the country where the ideas of democratic equality, and the notion that every human being may claim certain indefeasible ‘human rights,’ have struck deepest root.

The idea that men and women are entitled to happiness, and therefore to have barriers to their happiness removed, is strong in the United States, and has gone far to prompt both the indulgence of the laws and the over-indulgence shown in administering them. This idea has its good side. The fuller recognition of the right of women to develop their individuality and be more than mere appendages to men is one of the conspicuous gains which the last two or three generations have brought. It has helped to raise the conception of what marriage should be, so we must expect to find that it has made women less tolerant of an unsympathetic or unworthy partner than they were in the eighteenth century.

It would not therefore be wonderful if, even apart from such facilities as legislation has allowed, and assuming that there was one and the same divorce law over all civilized countries, the United States should show, as Switzerland shows in Europe, an exceptionally high percentage of divorces to marriages. Newspapers are more read there than in any other country; and newspapers contain a great deal about matrimonial troubles which would be better left unpublished. The life of the middle class is more full of stir and change and excitement than it is in Europe. Both the process described as the emancipation of women, and the admission of women to various professions and employments formerly confined to men, have gone further there than in Europe. So has the carrying on of industries in factories instead of at home. So has the habit of living in hotels or boarding-houses.

All these conditions are less favourable than were the conditions of a century ago to the maintenance of domestic life on the old lines. And over and above these, there has come that extreme laxity of the law and of judicial procedure which has been already described. Thus we can easily account for the comparative frequency of divorce in the United States, while yet noting, for this is the point of real importance, that the phenomena of the United States are not isolated, but merely the most conspicuous instance of a tendency which is at work everywhere, and which springs from some widely diffused features of modern life.

The points of similarity between the history of divorce at Rome and its history in recent times need not be further insisted on. There is, however, one to which I have not yet adverted. At Rome the increase of conjugal infidelity and that of divorce would seem, from such data as law and literature give us, to have gone on together, each fostering the other. Is there any like connexion discoverable now?

This is a question which it appears impossible to answer either generally or for any particular country. There are no statistics available, except for matrimonial causes coming into the Courts, and we can never tell what proportion the offences that are disclosed bear to those which remain hidden. There have been countries where the level of sexual morality was extremely low, at least among the wealthier classes, though no divorce was permitted. There may be countries where the very fact that the level is low keeps down the number of applications to the Court, because the injured party acquiesces and takes his or her revenge in like offences. Common talk, and literature which as regards the past may sometimes represent nothing more than common talk[231], are unsafe guides, as any one will see who asks himself how much he knows about the moral state of his own country in his own time. He can form some sort of guess about the character of the ‘social set’ he moves in, but how little after all does he know about the classes above or below his own! Thus there can be very few persons in England whose means of information entitle them to say that the undoubted increase of divorce cases in our Courts since 1860 represents any decline in the average conjugal morality of the people. As regards the United States, I have heard the most opposite views expressed with equal confidence by persons who ought to have been equally well-informed. Judicial statistics do not prove that infidelity has become more common there, for the largest proportion of divorces granted is for desertion, 38.5 per cent. of the whole, those for infidelity being little more than half of that percentage, or about one-fifth of the whole. At the same time the smallness of this percentage may count for less than might appear, for it is probable that in States where divorce can be obtained for other grounds, less serious and easier to prove than infidelity is, petitioners will, where they have a choice of several charges to make, put forward a less grave charge provided it is sufficient to secure their object. So far as my own information goes, the practical level of sexual morality is at least as high in the United States as in any part of northern or western Europe (except possibly among the Roman Catholic peasantry of Ireland), and experienced judges in America have told me that, odious as they find the divorce work of their courts, the thing which strikes them in the cases they deal with is more frequently the caprice and fickleness, the irritability and querulous discontent of couples who have married on some passing fancy, than a proclivity to breaches of wedded troth.

Footnote 231:

Sometimes not even that. A few years ago, in the United States Senate, some one quoted, in order to prove the corruption of public life in England, a play represented there, in which a Secretary of State or his wife was involved in a disgraceful job connected with an Indian railway. Nobody in England had taken such a thing seriously enough to comment on the absurdity of it.

Indeed, so far from holding that marriages are more frequently unhappy in the United States than in western Europe, most persons who know both countries hold the opposite to be the case. On the whole, therefore, there seems no ground for concluding that the increase of divorce in America necessarily points to a decline in the standard of domestic morality, except perhaps in a small section of the wealthy class, though it must be admitted that if this increase should continue, it may tend to induce such a decline.

The same conclusion may well be true regarding the greater frequency of divorce all over the world. There is no reason to think that sexual passion leading to conjugal infidelity is any commoner than formerly among mankind. More probably passion is tending to grow rather weaker than it was formerly. But that which we call Individualism, viz. the desire of each person to do what he or she pleases, to gratify his or her tastes, likings, caprices, to lead a life which shall be uncontrolled by another’s will—this grows stronger. So, too, whatever stimulates the susceptibility and sensitiveness of the nervous system tends to make tempers more irritable, and to produce causes of friction between those who are in constant contact. Here is a source of trouble that is likely to grow with the growing strain of life, and with the larger proportion which other interests bear in modern life to those home interests which formerly absorbed nearly the whole of a woman’s thoughts. It is temper rather than unlawful passion that may prove in future the most dangerous enemy to the stability of the marriage relation.

XXII. INFLUENCE OF THE CHURCH AND THE LAW.

The view of marriage as a tie which the parties intend to enter into for their lives, and which the law holds indissoluble, has hitherto rested not so much on any abstract theory or sentiment which men and women have entertained regarding it as upon the three authorities which have formed both sentiment and opinion. These three are the Church, the State, and Tradition, that is to say the beliefs which people adopt because they have come down from the past. The attitude of the Church has in Protestant nations sensibly altered. In some countries it altered in the sixteenth century. It has everywhere altered in the nineteenth. So, too, the support given to the old view by the State has in like manner become in those same countries much weaker, and in some countries, as for example in Switzerland and many American States, has almost disappeared. Public opinion has itself been largely formed by the Church and the Law, and may, when they have ceased to form it, be no longer an effective guardian of the permanence and dignity of marriage. In such democracies as those of the United States, the wish of an active minority to procure changes in the law easily prevails, because no one cares to resist, and because abstract principles suggest that the more everybody is permitted to do as he pleases, the happier everybody will be. When the law has been changed, public opinion, that is to say the opinion of the majority who do not think seriously about the matter, soon adjusts itself to the new law, and little social blame attaches to those who use the licence which the law has granted. Seeing then how largely the law, whether of the Church or of the State, moulds the sentiment of the people on such a subject as this, and seeing that the Church no longer makes or administers law in Protestant countries, one may say that the civil law is practically left to keep their conscience. This tendency of the Church to abnegate its old functions makes the question of the way in which the Law should deal with divorce a question of critical importance[232].

Footnote 232:

Some of the Churches in the United States have however tried to deal with the matter. The Protestant Episcopal Church is at this moment (1901) considering a draft canon.

As regards America, the opinion of the wisest and best informed people, though far from unanimous in points of detail, agrees in thinking that many States have gone too far in the way of laxity.

XXIII. DOES THE ENGLISH LAW OF DIVORCE NEED AMENDMENT?

In England the topic has been less discussed; yet there are some who hold that women ought to be placed on the same footing as men, and allowed to obtain a divorce from an unfaithful husband, even if he has not been guilty of cruelty. Others would go even further and admit other grounds as entitling either party to a dissolution of the marriage. The late Lord Hannen, whose opinion was entitled to exceptional weight, for he had presided over the English Divorce Court for many years with singular ability and fairness, told me that he thought the English law might with advantage be somewhat relaxed, so numerous were the cases in which it was obviously best that a miserable marriage should be extinguished altogether. Yet the example of the United States (not to speak of Rome) suggests the danger of any but a very slow and cautious advance in that direction. Great as is the hardship of chaining an innocent to a vicious or drunken or brutal consort, the evil of permitting people to get rid of one another merely because they are tired of one another is no less evident. When the question is asked, ‘What is the best divorce law?’ the only answer can be, ‘There is no good divorce law.’ There are some faults in human nature which always have existed and apparently always will exist; and there is no satisfactory method of dealing with them. All that can be done is to choose between different evils.

Upon the whole, after weighing the considerations on both sides, the balance seems to incline to a change in the law which should not only equalize the position of the wife and the husband, by giving the former the same right to dissolution as the latter, but should also allow dissolution in cases of hopeless lunacy and of long-continued desertion.

Throughout this discussion it has been assumed that marriages ought to be permanent, and that obstacles should be thrown in the way of those who seek to dissolve them. It may be asked whether this assumption is justified. There is a school of thought, small perhaps, but of long standing and supported by a few eminent names, which insists that marriage should last no longer than love does; and therefore that the pair should, as in Rome, be permitted to separate with freedom of re-marriage, whenever they are no longer held together by inclination. There is also a larger school, which feels so keenly the misery caused by ill-assorted unions as to think that the parties should be allowed to dissolve them, when certain terms for reflection and repentance prescribed by law have been completed.

I do not propose to argue afresh this question, for it has been often and copiously argued. Yet it is not a question to be dismissed without argument, for in our day no moral or religious dogma, however long established or widely held, is permitted to rest upon authority alone. But to argue it fully would draw us far from the historical inquiry we have been engaged on. It is enough to indicate in a word or two the main grounds which have in fact led the vast majority of thoughtful men to the assumption aforesaid. The first of these is the interest of children. Few things can be more harmful to the moral well-being of the offspring of a marriage than the divorce of their parents, which destroys one or other of the two best influences that work on childhood and may poison even the influence that is left. The next is the fact that, though it is professedly in the interest of suffering wives that facility of divorce is usually advocated, such facility tends to the injury of wives even more than of husbands, because men are, it would seem, more fickle and more prone to seek the dissolution of marriage when they are tired of their partner, or have formed some illicit connexion, or seek to marry some other woman. The third is that whatever weakens the conception of the marriage tie as a permanent one strikes at the whole character and essence of the marriage relation. It is often said that when people know they have got to live together, they are forced to exercise the self-control necessary to enable them to live together. But the moral effect of the sense of permanence in wedded union goes deeper than this. It is in the complete identification of the two beings and the two lives that the true happiness of a happy marriage lies. The sense that each has absolutely committed himself or herself to the other—each taking charge of the joys and sorrows and hopes of the other, each trusting to the other his or her joys and sorrows and hopes—gives to the relation an incomparable sanctity, and makes the strongest possible appeal to the best feelings of each. If selfishness and falsehood can be overcome by anything, it is by calling into action the sense of obligation to fulfil this trust which the enduring nature of the union is calculated to inspire. Were the union to cease to be thought of as enduring, were it to be in the minds of the parties, as their minds are moulded by the practice and the prevailing notions of society, merely the result and expression of a possibly transient passion, or of the willingness to try the experiment of a joint household, the sanctity and the sense of obligation would receive an irreparable blow.

Thus we are driven to the conclusion that numerous as the cases may be in which, if one looked only at the wretchedness of the parties to an ill-assorted union, one might desire to see that union dissolved, more harm than good may on the whole result from permitting the parties to dissolve their union at their pleasure, as the later Romans did, as the French did during the Revolution, and as some American States practically do to-day; and more harm than good may result even from extending in large measure the opportunities for divorce which the law of England or that of Scotland at this moment affords.

How vital to the future of humanity are the interests involved is admitted on all hands by those who would change, as well as by those who would uphold, the conception of marriage as a permanent relation. Great as is the contrast between that sensual and unworthy view which finds its expression in the polygamy of the East and the view which Christianity has formed among Western peoples, it is hardly greater than that which exists between the view of marriage as a life-union, dissoluble only when infidelity has shattered its basis, and the view which puts it at the mercy of the caprice of a volatile nature or the temper of an irritable one. Polygamy has been and remains a blighting influence on Musulman society, and on the character of individual Musulmans. So if marriage were to become a transitory relation, as it practically was among the upper classes in the Roman Empire, the effects upon family life and on the character of men and women would in the long run be momentous.

XXIV. SOME GENERAL REFLECTIONS: CHANGES IN THEORY AND IN SENTIMENT REGARDING MARRIAGE.

A few words more to sum up the general result of our survey. We have seen that the relations of the wife to the husband have been regulated sometimes by one, sometimes by the other of two systems, which have been called those of Subordination and Equality[233]. In all countries custom and law begin with the system of Subordination. In some, the wife is little better than a slave. Even at Rome, though she was not only free but respected, her legal capacity was merged in her husband’s.

Footnote 233:

By Equality I do not mean any recognition of Identity or even Similarity as respects capacity and practical work (though the tendency is in that direction), but the equal possession of private civil rights and the admission of an individuality entitled to equal respect and an equally free play of action. Such Equality is perfectly compatible, given sufficient affection, with a complete identification of the consorts in the harmony which comes of the union of diverse but complementary elements.

This system vanishes from Rome during the last two centuries of the Republic, and when the law of Rome comes to prevail over the whole civilized world, the system of Equality (except so far as varied by local custom) prevails over that world till the Empire itself perishes.

In the Dark Ages the principle of the subordination of the wife is again the rule everywhere, though the forms it takes vary, and it is more complete in some countries than in others. It was the rule among the Celtic and Teutonic peoples before they were Christianized. It finds its way, through customs conformable to the rudeness of the times, into the law of those countries which, like Italy, Spain, and France, were only partially Teutonized, and retained forms of Latin speech. It holds its ground in England till our own time, though latterly much modified by the process which we call the emancipation of women, a process which, under the influence of democratic ideas, has moved most swiftly and has gone furthest among the English race in North America. But in our own time the principle of equality has, in most civilized countries, triumphed all along the line, and so far as we can foresee, has definitely triumphed. One must imagine a complete revolution in ideas and in social habits in order to imagine a return to the system of Subordination as it stood two centuries ago.

As there have been two systems determining the relations of husband and wife in respect of property and of personal control, so also have there been throughout all history two aspects of the institution of marriage, one in which the sensual and material element has predominated, the other in which the spiritual and religious element has come in to give a higher and refining character to the relation. In this case, however, it is not possible to make the relative importance of these two aspects synchronize with the general progress of civilization, nor even with the elevation of the position of women. It is true that among barbarous and some semi-civilized races the physical side of the institution is almost solely regarded, and that we may suppose a remote age when primitive man was in this respect not much above the level of other animals. But there have been epochs when civilization was advancing while the moral conception of marriage, or at any rate the popular view of marriage as a social relation, was declining. The tie between husband and wife in the earlier days of Rome was not only closer but more worthy and wholesome in its influence on the lives of both than it had become in the age of Augustus. Christianity not only restored to the tie its religious colour, but in dignifying the individual soul by proclaiming its immortality and its possibility of union with God through Christ gave a new and higher significance to life as a whole, and to the duties which spring from marriage. The greatest advance which the Christian world made upon the pagan world was in the view of personal purity for both sexes which the New Testament inculcated, a view absent from the Greek and Italian religions and from Greek and Latin literature, though there had been germs of it in the East, where habits of sensual indulgence more degrading than those of the West were opposed by theories of asceticism, which passed into and tinged primitive and mediaeval Christianity.

The more ennobling view of love and of the marriage relation held its ground through the Middle Ages. There was plenty of profligacy—as indeed the ideal and the actual have never been more disjoined than in the Middle Ages. But in spite of profligacy on the one hand, and the glorification of celibacy on the other, and notwithstanding the subjection of women in the matter of property and even of personal freedom, the conception of wedded life as recognized by the law of the Church and enshrined in poetry remained pure and lofty. That the Reformation took away part of the religious halo which had surrounded matrimony may be admitted. Whether this involved a practical loss is a difficult question. It may be that, in their anxiety to be rid of what they deemed superstition, and in their disgust at the tricky and mercenary way in which ecclesiastical lawyers had played fast and loose with the intricate rules of canonical impediment, the Reformers of Germany, Scandinavia, and Scotland forgot to dwell sufficiently on the fact that though marriage is a civil relation in point of form and legal effect, it ought to be, to Christians, essentially also a religious relation, the true consecration of which lies not in the ceremonial blessing of the Church, but in the solemnity of the responsibilities it involves. Yet it is not clear that, in point of domestic happiness or domestic purity, the nations which have clung to the mediaeval doctrine stood a century ago, or stand now, above those which had renounced it. General theories regarding the influence of particular forms of religion, like theories regarding the influence of race, are apt to be misleading, because many other conditions have to be regarded as well as those on which the theorist is inclined to dwell.

Whoever regards the doctrines of the Roman Catholic Church respecting marriage and realizes her power over her members will expect to find a higher level of sexual morality in Roman Catholic countries than he will in fact find. So on the other hand will he be disappointed who accepts that view of the superiority in social virtues of peoples of Teutonic stock which finds so much favour among those peoples, for dissolutions of the marriage tie have latterly grown more frequent than they formerly were among Protestant and Teutonic nations, and are apparently less condemned by public opinion than was the case in older days.

The material progress of the world, the mastery of man over nature through a knowledge of her laws, the diffusion of knowledge and of the opportunities for acquiring it, are themes which ceaselessly employ the tongues of speakers and the pens of journalists, while they swell with pride the heart of the ordinary citizen. But they are not the things upon which the moral advancement of mankind or the happiness of individuals chiefly turns. They co-exist, as the statistics of recent years show, with an increase over all, or nearly all, civilized countries of lunacy, of suicide, and of divorce.

XVII _INAUGURAL LECTURE_[234]

THE ACADEMICAL STUDY OF THE CIVIL LAW

Narrow as is the sea that parts England from the continent of Europe, it has cut her off as effectually from many continental influences as if she lay far out in mid-Atlantic. When it is considered how close are our affinities of blood with the Low-German races, and how intimate during the Middle Ages were our relations, intellectual as well as political, with the whole of Western Europe, the individuality of the English people and its institutions appears singularly well-marked; and one is surprised to see in how many points the great nations of the continent resemble one another and understand one another, while all alike differ from us, and are comparatively incomprehensible to us. This strangeness of England is what most strikes the foreigner who comes among us; be he Frenchman, German, Spaniard, or Italian, he seems less at home in England than anywhere else in Christendom. As in the woodland wealth of our country, as in the architecture of our towns and the structure of our houses, so also in the social usages and mental habits of Englishmen one discovers something peculiar, something bearing witness to a prolonged isolation, to an exemption from those influences, speculative as well as practical, which have operated on all or nearly all the other members of the European commonwealth.

Footnote 234:

Delivered at Oxford, February 25, 1871, on entering on the duties of the Regius Professorship of Civil Law.

Such isolation has been in no respect more marked or more fruitful in results than in the case of our law. In spite of the immense power of the mediaeval church, in spite of the influence of the universities, and of the strangers who flocked to them from all quarters, the Roman jurisprudence exerted a comparatively slight influence upon the technical development of our law and the formation of our habits of legal thought. Here, where the language, and to a great extent the customs of the people, were of Teutonic origin, it found a less congenial soil than in Italy or France, while there were no such political associations with the Roman name as those which gave the Corpus Juris its authority in Germany. Whatever be the cause, it is clear that Roman law was never thoroughly domesticated in England. True it is that one of the first notices we have of the existence of our University is that which mentions the Lombard Vacarius as lecturing on law (doubtless on the Digest of Justinian) at Oxford, under the patronage of Archbishop Theobald, in the days of King Stephen[235]; and there is abundant evidence that the study was regularly pursued there down till and in the sixteenth century. The statutes of the older colleges make provision for some of the fellows proceeding to degrees in law; and indeed the only law degrees Oxford has given, since those in canon law were abolished by King Henry the Eighth, have been degrees in civil law. But the customary or common law, unrecognized in the universities, gained exclusive possession of the seats of legal study in London. That hostility to the pretensions of the foreign laws which had been so forcibly expressed by the barons at Merton in Henry the Third’s time, and again by the Parliament of Richard the Second, maintained ever after a watchful and jealous attitude. Persons who had mastered Roman law at Oxford were obliged, when they practised in the courts at Westminster, to disguise or disclaim any appeal to its authority; and when the Reformation finally broke the link between England and Rome, and in doing so loosened the ties that bound English men of letters to the general movement of European learning and thought, the study of the canon law virtually expired among us, while that of the Civil Law maintained only a feeble and flickering life[236]. Its practical utility (except to practitioners in the ecclesiastical courts) was apparently at an end; and in the cloud of dullness and sluggishness that settled down upon Oxford and Cambridge at the end of the seventeenth century, it only shared the fate of other studies which had as much to commend them to an active and curious intellect. A few distinguished publicists and lawyers, such as Arthur Duck, Selden, Hale, Holt, and those two brightest ornaments of the English bench, Lord Hardwicke and Lord Mansfield, were well versed in its rules, but the great mass of English lawyers regarded it with suspicion and dislike, and the very praise which Hale bestows testifies to the slight interest felt in it. ‘He set himself much,’ says Bishop Burnet his biographer, ‘to the study of the Romane law, and though he liked the way of judicature in England by juries much better than that of the civil law, where so much was trusted to the judge, yet he often said that the true grounds and reasons of law were so well delivered in the Digests, that a man could never understand law as a science so well as by seeking it there, and lamented much that it was so little studied in England.’

Footnote 235:

‘Oriuntur discordiae graves, lites et appellationes antea inauditae. Tunc leges et causidici in Angliam primo vocati sunt, quorum primus erat magister Vacarius. Hic in Oxenefordia legem docuit, et apud Romam magister Gracianus et Alexander, qui et Rodlandus, in proximo papa futurus, canones compilavit.’—(Gervas. Dorob.; _Act. Pontif Cantuar.; Theodbaldus_.)

Footnote 236:

For some time after the breach Englishmen used to resort to continental universities, and there, of course, they found Roman law taught; but this practice died out before very long.

The ancient rivalry of the Civil and the Common law proved eventually the cause of mischief to both. Having reigned bn 494.png supreme in the universities, the civil law had never taken root in the Inns of Court, and when it fell in the universities it fell utterly. On the other hand, the common lawyers, whose study was originally not recognized in Oxford or Cambridge, were well enough content with the position they had obtained for it in London, and do not seem to have seen how much was to be gained by introducing it into the ancient seats of learning. Thus both systems, to the loss as well of the profession as of the universities, came to be neglected in the very places where they might best have been cultivated in a philosophical spirit; and it was not until Mr. Viner founded his Chair in A.D. 1756 that English law was recognized in Oxford as an academic study, while in Cambridge no provision was made for the teaching of it until the beginning of the present century.

That isolation of England to which the neglect of the Civil Law may be ascribed has of late years perceptibly diminished. Owing partly to the more frequent and easy intercourse which improved means of communication have produced, partly to the removal of old national prejudices, partly to that increased recognition of the power of ideas which is commonly associated with the growth of democracy, civilized Europe has within the last eighty or ninety years become much more of a single intellectual commonwealth than it has been at any time since the Reformation, perhaps, indeed, since the fall of the Roman Empire. The long-standing jealousy of the Civil Law as a foreign system, associated with the overweening pretensions of emperors and popes, has at last vanished. A century ago this feeling was still so active, that Lord Mansfield’s enemies found it worth while to charge him with having, as a Scotsman, an undue partiality for the Roman law, and designing, by means of its despotic principles, to sap the liberties of Englishmen—‘corrupting by treacherous arts the noble simplicity and free spirit of our Saxon laws;’ though as a matter of fact, Lord Mansfield left Scotland at the age of three, and the use which he made of his knowledge of Roman jurisprudence was made by applying its rational principles to the elucidation of the civil, and indeed chiefly of the commercial parts of the English system. Such prejudices seem now to lie far behind. We live in the midst of a general unsettling of respect for whatever exists, which does not spare the laws or even the constitution of England, and welcomes new ideas from every quarter. Thus the influence of the great German civilians begins to tell upon English students, while the rise of a vigorous historical school in England has quickened our curiosity in whatever helps to explain the ancient and the mediaeval world. The feeling so awakened has happily coincided with an interest in the scientific amendment of the form of English law, different from that desire to improve and correct its substance of which Bentham was the first exponent, and which inspired the labours of Romilly and Brougham.

The efforts of these great men were chiefly directed to the removal of harsh enactments, of rules due to economic errors, and of technicalities which defeated the ends of justice. Their modern successors, finding the law purged of its grosser faults, are rather concerned with its reduction into a more orderly and systematic shape. The three leading questions of reform at this moment are questions of form, relating not so much to substance as to the shape and form which the law ought to take. What are the best means of fusing legal and equitable procedure[237]? How may Acts of Parliament be drawn more concisely and symmetrically? How are we to frame, out of the vast and chaotic mass of our reported cases and statutes, an organized body of rules, a Digest or a Code? Finding themselves thus brought face to face with the problem which Justinian partially solved, and which several modern states, as notably France, Austria, Prussia, and Italy have again had to solve[238], English lawyers are being driven to examine the means whereby codification was accomplished, and the results that followed it. They feel that for the execution of so great a work men are needed who have had something more than an empirical training, and are disposed to believe that in any systematic course of legal history and philosophy which might be devised to form the mind of the jurist as preliminary to his purely professional studies, a chief place should be assigned to the study of the Roman law. Thus, what with our own actual needs, what with the influence of the scientific spirit of the Continent, there has been awakened in England an interest in the Civil Law and an estimate of its worth which, although still matter rather of faith than of sight, is yet strong enough to give the University of Oxford not merely a motive for endeavouring to revive the study, but a reasonable hope that it may be revived with success, to the substantial benefit as well of the universities themselves as of the legal profession.

Footnote 237:

This was effected by the Judicature Act of 1873.

Footnote 238:

To these one may now add the new German Empire, which was coming into being when this Lecture was delivered in A.D. 1871. A Civil Code for the Empire began to be prepared in 1872 and came into force in 1900.

To prove that Roman law does deserve in England, and especially from the University, more attention than it now receives may well be thought, at least in Oxford, a spot which was long its home, a superfluous labour. That it fills so large a place in the world’s history, that it is the fruit of so great an expenditure of human genius and industry, is of itself a sufficient reason why it should engage the labours of a learned body which has, in Bacon’s words, taken all knowledge to be its province. I may therefore content myself with touching upon some of the purposes which the study may be made to serve, and indicating some of the directions in which it may most usefully be pursued; premising always that academical study has two objects, the furtherance of learning and discovery, and the preparation of young men to be, not merely useful and active in their future occupations, but also, in the widest sense of the word, good citizens. These two objects have been sometimes, under the names of Research and Education, opposed to one another, and no small controversy has been maintained touching their respective claims. Are they not in truth closely intertwined? since the greater the zeal wherewith a study is pursued, so much the greater is the teacher’s influence on the taught; and since experience shows that when the work of education has been neglected by schools and universities, such neglect has not been caused by any absorption in abstract studies, but by mere dullness and self-indulgence, as fatal to study as they can be to education.

The various utilities of a knowledge of the Roman law fall into two classes: those which connect it with the liberal studies of a university, and specially with classical philology, with history, and with ethics; and those which belong rather to the faculty of law, and entitle it to a place in a strictly professional curriculum.

Taking the former of these heads first, there is no more obvious reason for pursuing the study than the light which it throws upon Roman history, which is, it can hardly be too often repeated, substantially the foundation of all modern European history. No people was ever so thoroughly permeated by legal ideas as were the Romans; none rated the dignity of the profession so high, spent so much pains in the elaboration of legal rules, and formed, let it be added, so worthy a conception of what law ought to be. Hence the whole political history of the Roman people and state is so involved with its legal institutions, that it can be understood only when regarded as derived from and conditioned by them. This is signally true not only of the regal and earlier republican period—in all early states of society, legal customs do for a people what a political constitution does in later times, or, in other words, public and private law are closely intertwined—it is true also of the republic in the days of Sulla and Julius Caesar, and of the long period of the Empire. Most of the constitutional arrangements of the Roman state depended upon those of private law, and many of the gravest political questions turned upon legal doctrines. The subject of the Agrarian laws, for instance, is intimately involved with the legal conception of possession, as distinct from ownership, and can hardly be mastered without a knowledge of technical theory. The structure of the _gens_, the nature of the agnatic tie and of the _patria potestas_, the judicial character of the chief administrative magistrates, the doctrine of adoption—all and each of them exerted a powerful influence on the political fortunes of Rome. Adoption, for instance, became from time to time under the Empire the means of working a system of appointment to the sovereign power, which could show the merits without the evils of hereditary succession. I forbear to dwell on the number of historical incidents, like that of Virginia and Appius Claudius, or of allusions in poetical and philosophical writers, such as those which every scholar remembers in Horace, Ovid, Juvenal, and most of all in Cicero, which only a knowledge of the civil law can elucidate. A student of the classics need not read the Corpus Juris merely for the sake of understanding these, any more than one is bound to read Coke or Hale for the sake of better seeing the point of the numerous legal phrases in Shakespeare. Few would go so far as the enthusiastic civilian who maintained that every divine ought to learn Roman law, because there are passages in the New Testament which a knowledge of it serves to explain. But, though every scholar need not, some scholars certainly ought; for there is much in the literature, and, indeed, in the literary spirit and feeling of the Romans, which is due to legal influences, and which can be fully apprehended and expounded by those only who have made themselves familiar with these influences in their source. In particular, such study is necessary in order to appreciate the character of the Empire in its relation to the peoples of the Mediterranean whom it embraced. Rome’s great gift to the world was her jurisprudence; and the most interesting chapter in her history is that which traces, coincidently with the gradual extension of Roman citizenship and Roman law to the subject races, the steady amelioration in its positive rules, and its development from a harsh and highly technical system into one grounded on principles of reason and justice, principles which are indeed common to all civilized peoples, but which the Roman jurists were the first to expound and apply. To this great work was devoted, from the time of Augustus onwards, nearly all the genius and labour, not of Rome merely but of the Roman world, which was not expended on abstract speculation; and it is more than an accident that long after the language of Virgil and Cicero had become debased in the hands of florid rhetoricians and soulless versifiers, its purity and its nervous precision were preserved in the hands of men like Papinian and Modestinus.

A second utility which may be claimed for our study, is its bearing upon the history of mediaeval and modern thought. When the Western Empire perished amidst the storms of the fifth century, its law did not perish with it, but remained a chief factor in European history, more widely, although less directly, influential. The barbarian conquerors, who brought with them only the rude customs by which they had lived in their native forests, soon felt the need of a regular legal system, and were glad to recognize that which they found subsisting. They allowed their subjects, the Latin-speaking provincials, to use it; in some countries they came to use it themselves; parts of it were collected and published in such compilations as the Breviarium of the West Gothic Alarich the Second and the Lex Romana Burgundionum. At the close of the Dark Ages, the study of the original texts revived, first in Italy, then in France, England, and Spain. Schools of law arose all over Europe. Immense pains were spent on the interpretation of the Digest, and it became thenceforth, for many generations, the foundation of the education and a principal part of the knowledge of every lawyer and publicist. As the mighty fabric of ecclesiastical power grew up, it created with the help of Roman materials its own body of laws, varied of course by the nature of the subjects, and coloured by religious ideas, but substantially Roman after all. In this, as in so much else, the Papacy was, to use the forcible expression of Hobbes, ‘the ghost of the old Empire, sitting on its tomb and ruling in its name.’ And thus, in the hands of the very ecclesiastics who forbade its study, as hostile to their own pretensions and favourable to those of their antagonist, the Emperor, the doctrines of the Civil Law obtained a wider range than ever before. As its continued existence was one chief cause of the fantastic belief in the continued life of the Roman Empire, so that very belief became in turn the cause of its ultimate reception, in Germany, where it had not prevailed, no less than in Italy, where it had prevailed continuously, as effective and binding law. Being studied by all the educated men, the poets, the philosophers, the administrators of the Middle Ages, it worked itself by degrees into the thought of Christendom, losing the traces of its origin, as it became part of the common property of the world. A knowledge, therefore, of what it was, and of how it influenced mankind, helps to explain much which might otherwise have remained obscure in the literature of the Middle Ages and the Renaissance—much whose bearing a modern finds it hard to grasp, just because law holds a different place in his conceptions, and because he does not realize the power it exerted over untrained and uncritical minds. Theology is an instance, but by no means the only instance, of a branch of inquiry over which legal notions once exercised a sway they have now lost.

The Middle Ages had received from antiquity, besides the Scriptures, only three bodies of literature containing systematized thought—the Church Fathers, the philosophy of Aristotle, known through translations, and the Roman law. The last counted for less than the two former in moulding ideas. But it counted for a great deal.

The history of law and of the evolution of legal conceptions, although in one aspect a professional subject, may also claim to be regarded as a branch of general academical study. Within the last few years, the application to it of the comparative method of inquiry has given it a new significance and interest, has enabled it to teach us much respecting the structure of primitive society, and has made it the means of illustrating many curious phenomena in the philosophy and politics of more recent times. Now to the student of legal history a knowledge of Roman Law is indispensable: first, because it was an independent system, uninfluenced by any preceding one, save to some slight extent by the customs of Greek cities, whereas all subsequent European systems have been influenced by it; and secondly, because it alone presents an uninterrupted continuity of development, stretching over ten centuries from the Twelve Tables to Justinian, and later still through the dynasties of Constantinople. No sudden intrusion of a new element, like that caused in England by the Norman Conquest, nor even the internal strife which altered the form of the Roman state, disturbed that equable and self-consistent expansion and amendment of the laws of Rome, which the widening relations of the city, as a commercial, a conquering, a world-embracing community, made necessary. Legislative power passed from the patrician curies to the popular Assemblies of the nation, from the Assemblies to the Senate and the Emperor, but the conduct of legislation remained in the hands of an educated profession, and the harmonious evolution of principles was not interrupted. Nearly all the phenomena which the history of law in other countries presents, find their parallel and explanation in the history of its growth at Rome: nor is the study without a practical value for the modern legislator. The nature and limits of the jurisdiction of our own Court of Chancery are better understood when compared and contrasted with the functions exercised by the Praetor as exponent of the _ius gentium_. The codification of Justinian has been constantly cited, and occasionally examined, in recent discussions respecting the propriety and the methods of digesting and codifying English law.

Assuming, without further argument, the claims of the Civil Law to be recognized among the general liberal studies of the University, I may proceed to consider its special utility to the lawyer, and the reasons for giving it a place among the studies of the legal faculty. Some zeal has of late been shown for the revival of such studies in England and in Oxford; and it will be generally admitted that young lawyers ought to be more regularly instructed in the science and art of their profession than they are now; that much of this instruction may be, and ought to be, given at the University; and that, apart altogether from the service to be rendered by teaching, it would be a gain to the country if law were cultivated and written upon at the Universities, in the same philosophical spirit, and with the same systematic fullness, as in the schools of Germany. There a great writer is often also a great teacher. Such were Savigny and Thibaut; such was that illustrious man whom Heidelberg lost five months ago[239]—a man whose learning was so vast and well-digested, whose expositions of law were so penetrating and luminous, so philosophical in method, so eloquent in language, so animated in delivery, that to have listened to him was to have gained a new conception of the power of oral teaching.

Footnote 239:

Dr. K. A. von Vangerow.

An obvious ground for cultivating it, and one likely to have weight with the practising lawyer, is the immense influence it has exerted on the jurisprudence of modern Europe. As respects England, this influence is matter rather of antiquarian interest than of practical utility. Much of our law, especially of our mercantile law, and of that which is administered in courts of equity, may indeed be traced to a Roman origin; while the Court of Admiralty, and even to some extent, the probate and matrimonial Courts which have now replaced the ancient ecclesiastical tribunals, owe a more direct allegiance to the imperial jurisprudence. In the words of Lord Chief Justice Holt, ‘Inasmuch as the laws of all nations are doubtless raised out of the ruins of the Civil Law, as all governments are sprung out of the Roman Empire, it must be owned that the principles of our law are borrowed from the Civil Law, and therefore grounded upon the same reason in many things[240].’ But the bulk of English law is so vast, requiring so much labour to master it, and that which it has borrowed from other systems is now so thoroughly transformed and Anglicized, that one cannot honestly advise the student, on the mere ground that in some departments it has drawn freely from Roman sources, to spend time in examining those sources, instead of going straight to English text-books. It is not so much because English law is like Roman, but because it is unlike, that the study is really to be recommended. Similarities, whatever their historical origin, are usually found to rest on that wish to follow reason and to secure what is practically convenient, which have moulded the rules of all highly finished systems. They need no further explanation. But dissimilarities suggest difficulties. Inquiry is provoked; reflection is stimulated; ideas emerge which may prove fruitful.

Footnote 240:

12 Mod. 482.

A lawyer who loves and appreciates his subject will hardly be content without knowing something of the rules and doctrines which prevail in other nations; and a man in brisk practice will find many occasions in which a knowledge of foreign or colonial law is of great value to him. Now in the acquisition of almost any foreign system of law, a knowledge of the outlines of the Civil Law renders the same kind of service which a knowledge of Latin renders in the acquisition of one of the Romance languages; and just as one would advise a man who desired to learn French Spanish and Italian to begin by learning Latin, so the shortest way to know something of German Dutch and French law is to study the principles of the Civil Law, which are a master-key to that of all these countries. The House of Lords in Scotch appeal cases, the Privy Council in appeals from many of our colonies, as, for instance, from Lower Canada, British Guiana, the Cape, and Mauritius, administer a modified Roman law. And as the doctrines of international law are in their source Roman, they can be best understood and applied by one who is familiar with them in their original form as drawn from that imperial law which, when they first sprang up, was still dimly conceived of as extending its authority over all the states of Christendom.

I have placed last what I venture to believe to be the weightiest practical reason for pursuing this study, although, at the same time, that reason which it is most difficult to expound and establish—its educational and scientific worth as forming and strengthening those habits of mind in the possession of which a lawyer’s excellence consists. In proof of this worth it is not sufficient to cite the examples of Germany, France, and Scotland, where the education of a legal practitioner is based upon the civil law; for the Corpus Juris is in all these countries the foundation of their municipal systems, while in Scotland and some parts of Germany, it is to some extent actually still in force. The reason which we in England have for urging that the study of Roman law should precede and accompany that of the law of our own country, must be sought in a perception of the defects, certainly obvious enough, of modern English jurisprudence. Here it is necessary to distinguish what laymen, and even lawyers, have often confounded—defects of substance and defects of form. Now, in point of substance, the English law is, with the exception of certain provisions of the law of real property, and of the law relating to married women—provisions which the progress of political change seems likely to remove—no whit inferior to any other body of law; almost always fair and reasonable, conformed to the dictates of good sense, reflecting worthily the free and flexible spirit of our political institutions, and offering as few opportunities as may be to fraud and oppression. Its processes are of course technical, perhaps still too technical, and they are sometimes needlessly circuitous[241]; but, as a technical hardship may usually be met by a technical remedy, substantial justice seldom fails to be attained. With some cumbrousness, our procedure has the merit of variety and flexibility; and it is our especial honour to have worked out the method of trial by jury with a completeness unrivalled elsewhere, and to have alone (for in this, as in many other respects, Americans may practically be reckoned as Englishmen) succeeded in applying it to large classes of civil causes. But when English law is regarded in its formal and scientific aspect, as a system, the opinion formed of it must be very different. It is, in fact, not so much a system as a huge mass of isolated positive rules; some laid down, with little statement of a reason, for the sake of meeting a particular case; some deduced by the judges, though in a rather occasional and fragmentary way, from principles which were at first dimly and incompletely apprehended; some, again, created by statutes which have, especially of late years, cut across these pre-existing principles and rules in an irregular and reckless way. Just as lines of railway have been driven through modern London without regard to the old arrangement of the thoroughfares, and have crossed and recrossed streets and squares, effacing parts of them till perhaps only a house or two is left standing, so Acts of Parliament, drawn up to meet the exigency of the moment, have paid no respect to the symmetry, such as it was, of the common law, and, instead of attempting to mould and reconstruct it, have laid down new positive rules which infringe upon, or almost wholly destroy, its ancient principles, by removing from their operation large and heterogeneous classes of cases. The effect of this has been to make the old principle no longer really a principle, but a positive rule in the cases not affected by the statute; and thus, as the number of enactments and positive rules increases, the value of principles declines, and the confusion grows every year worse confounded. So it comes, owing partly to the way they have been produced, and partly to the way they have been amended, that the rules of our law are an aggregate of dicta on points of detail—dicta which with difficulty can be reduced to a reasonable number of leading doctrines. For not only do the exceptions to a rule frequently outnumber the cases which it governs, but it often happens that judicial decisions, or the words of an Act, have provided for many cases which naturally fall under and suggest a general principle, but have never ventured to enunciate the principle itself, which cannot therefore be laid down as being part of the binding law. Hence the tendency of an English practitioner is by no means towards a search for principles: indeed, he becomes absolutely averse to them; and the characteristic type of excellence which the profession has delighted to honour is the so-called ‘case lawyer,’ who bears in his memory a great stock of particular decisions, from which he can, as occasions arise, select that one whose facts most nearly approach the individual case upon which he is required to argue or advise. Such a practitioner may acquire a sort of instinct which will usually keep him right, but may be unable to state the general doctrines on which the solution of a class of cases depends.

Footnote 241:

This defect was removed by the Judicature Act of 1873.

The strain thus imposed on the memory is such that many persons succeed in mastering only some special department of the law; and even our most eminent counsel, men of the greatest powers of mind, may be heard to confess that they do not pretend to know our law as a whole, but must rest content with knowing where to find what they want as they may happen to want it. For the same reason our text-books are, with few exceptions, not systematic expositions of law, but mere heaps of cases from which, by the aid of an index, the practitioner must try to pick out a few resembling, or, as lawyers say, ‘on all-fours with,’ that set of circumstances whose legal character he is called upon to determine. They are, therefore, unfit to be put into the hands of a beginner.

The result of all this is to make the process of learning English law very slow and somewhat distasteful. Certain persons indeed there are who, having no feeling for symmetry, are willing to pick up their knowledge by scraps and morsels, and who, so to speak, roll themselves about in cases in the hope that bits of legal knowledge will stick. But minds of finer temper, minds trained by their University studies to ask for a reason, seek out a principle, group things together under their natural relations, are disheartened by this chaotic state of matters, make slow progress in the study, find themselves required to unlearn their best mental habits, and sometimes abandon the profession in disgust. I remember having been told by a very distinguished and able member of this University[242], that when he began to read in a conveyancer’s chambers he found his previous classical and philosophical training, so far from helping him, prove a positive hindrance and stumbling-block. This was seen to be an evil so long ago as Sir William Blackstone’s time. In his introductory lecture as Vinerian Professor, delivered here in A.D. 1758, he says:—

‘We may appeal to the experience of every sensible lawyer whether anything can be more hazardous or discouraging than the usual entrance on the study of the law. A raw and unexperienced youth, in the most dangerous season of life, is transplanted on a sudden into the midst of allurements to pleasure, without any restraint or check but what his own prudence can suggest; with no public direction in what course to pursue his inquiries; no private assistance to remove the distresses and difficulties which will always embarrass a beginner. In this situation he is expected to sequester himself from the world, and by a tedious lonely process to extract the theory of law from a mass of undigested learning; or else, by an assiduous attendance on the courts, to pick up theory and practice together, sufficient to qualify him for the ordinary run of business. How little, therefore, is it to be wondered at, when we hear of so frequent miscarriages; that so many gentlemen of bright imaginations grow weary of so unpromising a search, and addict themselves wholly to amusements, or other less innocent pursuits; and that so many persons of moderate capacity confuse themselves at first setting out, and continue ever dark and puzzled during the remainder of their lives.

‘The evident want of some assistance in the rudiments of legal knowledge has given birth to a practice which, if ever it had grown to be general, must have proved of extremely pernicious consequence. I mean the custom, by some so very warmly recommended, of dropping all liberal education, as of no use to students in the law, and placing them in its stead at the desk of some skilful attorney, in order to initiate them early in all the depths of practice, and render them more dexterous in the mechanical part of business. A lawyer thus educated to the bar will find that he has begun at the wrong end. If practice be the whole he is taught, practice must also be the whole he will ever know; if he be uninstructed in the elements and first principles upon which the rule of practice is founded, the least variation from established precedents will totally distract and bewilder him: _ita lex scripta est_ is the utmost his knowledge will arrive at; he must never aspire to prove, and seldom expect to comprehend, any arguments drawn _a priori_ from the spirit of the laws and the natural foundations of justice[243].’

Footnote 242:

Now (1901) one of the Law Lords sitting in the House of Lords.

Footnote 243:

Although it is the custom of placing a youth (untrained in theory) in an attorney’s office to learn practice which Blackstone is here condemning, the spirit of his concluding remarks is almost equally applicable to the present usage of entering a conveyancer’s or pleader’s chambers before one has gained any systematic knowledge (or indeed any knowledge whatever) of the law.

Blackstone is here founding, on the unfortunate results of the usage of his own time, an argument for making the future barrister begin with a systematic theoretical study of English law. His reasoning will be generally felt to be sound, but it does not exclude the further improvement of giving the learner some knowledge of the principles of Roman law before he addresses himself to English. I shall state some grounds for thinking that what might appear the longest way round, through Roman law, may really be the shortest way to the scientific mastery of our own.

It is clear that no knowledge of the Roman system can be a substitute for a knowledge of the English; but the difficulties which the English presents to a beginner are such as to suggest the utility of a preliminary legal training which may render it more comprehensible and less distasteful. Now, the conspicuous merit of Roman law is, that it is clear and intelligible. It is a system instead of a mere congeries of rules and dicta, a system which, although it cannot be exhausted by the labour of a powerful intellect during a long life, may be mastered in its outline and leading principles in six or eight months of properly-directed industry. A philosophical mind is attracted by its symmetry; the taste is pleased by the graceful propriety of its diction; the learner’s interest is kept awake by watching the skill and subtlety wherewith its technical rules are manipulated and kept in harmony with the dictates of equity and common sense. The number of dominant conceptions which it is necessary to acquire is so small, and these conceptions themselves so rational and, so to speak, natural, that it does not take long to obtain a general view of the whole, and discern the harmonious relation of its parts. The student finds the ethical and historical knowledge he has already acquired serviceable in this new field. He learns to regard law as a science, closely related to ethics, and to be dealt with in a philosophical spirit. And thus, when he passes on to the study of our English law, he finds himself the better able to grapple with its bulk and its want of arrangement, since he has already mastered the leading conceptions of jurisprudence in their concrete (which is, after all, their only serviceable) form, and knows how to arrange under appropriate heads the positive rules which it will be his business to remember and apply. So valuable is this experience, that I dare affirm that a youth who spends some eight months in the study of the Civil Law, and then proceeds to that of English law, will, when at the end of three years he is measured against his contemporary who has given exactly the same amount of time and pains to English law alone, prove to be not only a better jurist, but as good an English lawyer. This is the rather so, as that part of English law which the Roman law least helps to elucidate is now of much slighter importance than formerly—I mean the feudal law of land. A change has passed upon us, somewhat similar to that which Cicero saw passing at Rome. In his youth, he tells us, he like other pupils of the great _prudentes_ was required to learn by heart the contents of the Twelve Tables, whereas in his later days it was the Praetor’s edict that formed the basis of legal training. So Coke upon Littleton, which thirty years ago was held forth as a sort of Bible to the unfledged lawyer, is now seldom in his hands; his time is given rather to commercial law and to the doctrine of trusts and powers, and the principles governing incorporated companies and the relations of directors to intending investors and to shareholders—subjects to which the leading principles of the Roman law are more capable of being profitably applied.

It is not, however, merely as an introduction to his professional studies that the English lawyer will find the study of Roman law profitable: if rightly used it will be a guide and a help throughout his whole career. More than anything else, it will deliver him from the tendency to deal with law in a desultory method and an empirical spirit, by displaying to him fixed and general principles underlying the multitude of details. It will do for him what the knowledge of some foreign language does for the grammarian and the logician, in the way of freeing him from that bondage of words to which most men are all their lives subject. Setting him to compare the terms and conceptions of another law with those of his own, it will enable him to criticize the latter from an independent point of view, and so deliver him from the danger, common in all professions and to all systems, of mistaking the accidental for the essential, of exalting mere technical rules and phrases into necessary and permanent distinctions. Further, it may do much to supply, from its choice and abundant stores, the defects in English legal terminology. We are especially ill provided with terms fitted to convey the main conceptions of universal jurisprudence; and we find the want a serious impediment, not only to legal exposition and the conduct of legal argument, but also, as has been remarked by a distinguished jurist, now one of the ornaments of this University[244], in the work of practical legislation. The terminology of the Romans was exact as well as copious; and it has been greatly amplified and improved by the labours of modern civilians. As it is, we often draw upon the Roman vocabulary, but what we borrow we are apt to use loosely, and in a sense different from that of the old Romans or of their modern commentators; whence further confusion.

Footnote 244:

Sir H. S. Maine.

There are two capacities or mental habits in which the distinctive excellence of a legal intellect chiefly consists—the power of applying general principles to concrete cases, and the power of enunciating a legal proposition with clearness and precision. Towards the formation of both of these the writings of the Roman jurists supply more aid than do those of their modern English rivals. The conspicuous merit of the Roman lawyer was his command of principles, and the skill with which he manipulated the rules of an originally very technical system, so as, without any loss of consistency or ‘elegance’ to avoid the inconveniences which an adherence to technical strictness must often produce. As Savigny puts it, ‘In our science, all results depend on the possession of leading principles, and it is precisely upon this possession that the greatness of the Roman jurists is based. The conceptions and maxims of their science appear to them not as if created by their own will; they are actual beings, with whose existence and genealogy they have become acquainted from long and familiar intercourse. Hence their whole course of proceeding has a certainty which is found nowhere else out of mathematics, and it is no exaggeration to say that they calculate with their ideas. This method is nowise the exclusive property of one or a few great authors: rather is it the common inheritance of all; and although the power of applying it is divided among them in very unequal measure, still the method itself is in all of them the same.... If they have a case to decide upon, they set out from the most vivid perception of it, and we see before our eyes the origin and development of the whole affair in all its phases. It is as if this particular case was the starting-point whence the whole science was to be explored. Hence with them theory and practice are really not distinct; their theory is so thoroughly worked out as to be fit for immediate application, and their practice is uniformly ennobled by scientific treatment. In every principle they see an instance of its application; in every case, the rule whereby it is determined: and in the facility with which they pass from the universal to the particular, and the particular to the universal, their mastery is incontestable[245].’

Footnote 245:

_Vom Beruf unserer Zeit für die Gesetzgebung und Rechtswissenschaft_, c. 4.

Now every legal opinion, argument, and judgment chiefly turns on the application of known principles or rules of law to facts; and this either by way of fitting the law to the facts—that is, of expounding the nature, meaning, and limits of a principle in such wise as to make it appear to cover the facts proved; or conversely by way of fitting the facts to the law, that is to say, of setting forth the rule or principle, as admitted, and then of so stating the substantial result of the facts taken as a whole, as to make it appear that the case falls under this rule as already given. In this process the Roman jurists shone preeminent. English judges, certainly from no want of learning or acumen, but rather from a sort of caution, or from a traditional reluctance to deliver an opinion going any further than may be necessary, have generally been unwilling to formulate principles, preferring, where they could, to dilate on the special circumstances of the case, and base their decision thereon; and the consequence is to be seen in the prolixity of our Reports, and the uncertainty of much of the law contained in them. The labour of reading English cases is great in proportion to the quantity of positive law they embody; and their philosophical worth not commensurate with the genius and industry bestowed upon them by both bar and bench. The cases, if one may so call them, which we find in the Roman jurists give more law and more real intellectual training in a much smaller compass. They are often imaginary, invented to show the application of a rule, and are therefore short and clear, enforcing their principle with a directness which makes it easily apprehended and remembered. In reading them we seem to learn better than anywhere else how principles should be dealt with.

In the matter of legal expression the superiority of the Romans is scarcely less marked. The power of stating a proposition of law in comprehensive and exact terms, wide enough to cover all cases contemplated and yet precise enough to exclude cases more or less similar to which the rule is not intended to apply, is valuable to the text-writer and quite indispensable to the framer of statutes. Unfortunately it is one of which our statute-book bears few traces. Now the legal language of the Romans is a model of terseness, perspicuity, and precision, and from a study of it, even allowing for the difference between the structure of the two languages, the English draftsman may derive many valuable suggestions.

Over and above the specific benefits enumerated, it must be added that a study of the Roman law would not merely tend to produce, but must necessarily precede, any extended healthy intercourse between our jurists and those of the rest of Europe, any participation by us in the general advancement of juridical science. ‘England,’ said an eminent continental jurist, surveying the progress made in his department, ‘England sleeps for ever’: and she sleeps because her lawyers have allowed themselves to become as completely isolated as though we were living in and legislating for a planet of our own. Certainly, when one remembers how in other branches of inquiry each country depends upon its neighbours, how meagre would be our scholarship, our ethics, our history, our criticism—never to speak of medicine and the whole circle of the sciences of nature—if in each of these subjects we trusted to our own efforts only—it does seem strange that in the matter of law we should be content to draw nothing from the labours of other nations. As the facts law deals with are in the main the same in all civilized countries, and the substance of its leading conceptions virtually identical, there must clearly be much for us to learn from other highly cultivated systems, and it is only our ignorance of the common legal vocabulary of Europe that keeps us from so learning. The habit, however, has grown so strong that we do not even care to profit by the experience of a country which speaks our own legal language—the United States—where many problems have been handled by the Courts and many experiments have been tried by the legislatures which are full of instruction for us[246].

Footnote 246:

Cases decided in the United States are more frequently cited in English Courts now (1901) than they were in 1871.

This argument, being directed to show that the study of the Civil Law will help to make English law more of a system and a science than it is now, and to train the individual lawyer in more philosophical habits of mind, proceeds upon the assumption that law ought to be a science and lawyers philosophical. To prove the truth of this assumption would involve a discussion of the relations of theory and practice generally; and in a University, at least, no such proof will be demanded. Science, like wisdom, is justified of all her children; and those who, in the teeth of what we have seen during the last eight months[247], persist in holding theory to be a hindrance to practice, would, quite consistently, refuse to be convinced by any such general considerations as those which determine academical opinion. Without entering, however, on this higher ground, I may be permitted to mention two practical reasons for desiring to see our law treated as an organic and harmonized system of rules. One of these is the direct gain which the whole community would derive from a simplification of its form. Owing to the way in which English statutes are drawn, nearly every amendment of the law makes it more complicated and obscure than it was before. A new Act seldom repeals a preceding Act or Acts on the same subject as a whole: it abolishes some of their provisions, incorporates others, and modifies the rest. In dealing with a rule of the common law, instead of expunging the rule altogether, or laying down a new principle by which it is to be controlled, it usually establishes a series of exceptions in a manner so seemingly arbitrary as to make it very difficult to determine, when a new case arises, whether or no it was within the contemplation of the Act. The Married Women’s Property Act of last session is an instance in point[248]. Similarly, vast branches of our law, such as that which relates to public health and to the regulation of mines and manufactures, are suffered to remain in a state of hopeless confusion—Acts fringed with decisions piled upon other Acts and their decisions, till it becomes impossible, without a long and painful research, to say what is law and what is not[249]. This wretched state of things, which makes a resort to the Courts far more costly, and its issue far more uncertain than it need be, though partly due to existing parliamentary arrangements, is also in great measure due to the want of that feeling for the symmetry and simplicity of the law which a scientific conception of it would be certain to produce in the profession. The public, which feels the evil, is powerless to remedy it; while those members of the profession who have the power are deterred from the necessary efforts, not, as is commonly supposed, by the mean notion that it is their interest to keep their art a mystery, but partly by long habit, which has made them indifferent to the beauty of order, partly by the want of that scientific training on which the success of amending legislation depends.

Footnote 247:

The reference was to the war, just ending when this lecture was delivered, between Germany and France.

Footnote 248:

This Act caused so much trouble that it had to be amended and the law recast by the Married Women’s Property Act of 1876.

Footnote 249:

A marked improvement has, however, taken place since the establishment of the office of the Parliamentary Counsel a few years ago. Many Bills, however, including all those brought in by private members, do not pass through this office, and even those which come from it suffer in point of form in their passage through Parliament. Since 1871, much has been done in the way of consolidating the Statute law. See Essay XIV, _ante_.

The second benefit is the reflex effect upon the legal profession of a higher conception of the studies to which it devotes its labours. The complaint is often heard that men of literary culture and polished taste rise more seldom than formerly to the highest places at the bar and on the bench; that it is now private connexions rather than the finer gifts of intellect and character which open the path to professional success. If this be so, it is surely in great measure because our system of legal education gives too little scope to these nobler qualities, and turns them to no account in directing the studies of the aspirant. The life of a lawyer, tedious and distasteful in some of its details, would be more enjoyable if his occupation called out, as it ought to do, the highest faculties of his mind; and the tone of the profession, which will sooner or later be threatened here by the temptations which have begun to threaten it elsewhere[250], will be best maintained in purity by a sense of the dignity of the subject it deals with as a department of philosophical inquiry. It is scarcely possible that a corrupt administration of justice can coexist with an enthusiasm for the abstract propriety and elegance of law as a science, such as existed among the great jurists of Rome.

Footnote 250:

The reference was to the scandals which had recently arisen in some of the State Courts in the United States. These have now (1901) been almost entirely removed.

I am sensible that in this enumeration of the advantages of the study we have been considering, I may probably be falling into the common error of those who having a theme allotted them, try to bring more out of it than there is in it. To correct such a mistake, let it be frankly admitted that Roman law, though indispensable to the philosophical jurist, is not so to the practitioner; and that no knowledge of it can make up to him for the neglect of his own law. Let it also be conceded that it is not a subject ever likely to hold a front rank among those which awaken the ardour of our academic youth. It wants that charm of incompleteness, of unexhausted possibilities of discovery, which fascinates us in the sciences of nature. It does not, like metaphysics, set us face to face with the most stimulating problems of thought and life; nor can it, like history, dazzle the imagination and stir the emotions, by leading us through a long gallery of striking scenes and characters. Yet the study is one which pleases and satisfies as well as instructs; for it is at once, and that in the healthiest way, theoretical and practical, excellently philosophical in its methods, yet never quitting the firm ground of reality. Its materials are contained in the writings of men, the purity and loftiness of whose ethical tone were scarcely surpassed by the brilliance of their constructive genius. It is perhaps the most perfect example which the range of human effort presents of the application of a body of abstract principles to the complex facts of life and society. To quote once more from the most famous of modern jurists:—‘The study of Law,’ says Savigny, ‘is of its very nature exposed to a double danger: that of soaring through theory unto the empty abstractions of a fancied law of nature, and that of sinking through practice into a soulless unsatisfying handicraft. Roman law, if we use it aright, provides a certain remedy against both dangers. It holds us fast upon the ground of a living reality; it binds our juristic thought on the one side to a magnificent past, on the other, to the legal life of existing foreign nations, with whom we are thereby brought into a connexion wholesome both for them and for ourselves[251].’

Footnote 251:

Preface to vol. iii. of the _System des heutigen römischen Rechts_.

Standing midway between those classical and historical studies which belong to a general liberal education, and those purely professional studies which form the first stage of active life, it is especially fitted to lead men from the one to the other, and show them how to turn to account in the latter the ideas and capacities which the former has given them. But although this is a strong reason why the University of Oxford should undertake to recognize and promote the study, it is not the only or the chief reason. Even more important than the function of an University in education, is the scarcely separable function of dealing with every department of human activity in the abstract, investigating its principles and developing its rules in their philosophical coherence. We are all too apt, in the hurry of life and the pressure of its trivial necessities, to lose sight of that which is universal and permanent—to forget that what we are pursuing as a trade is the subject of a science, and has, as such, its greatness and its perfectibility. The ideal is not far from us, but we catch only transient glimpses of it; and of those who continue in maturer life to cherish the belief in its worth, the most conceive of it in relation to their inner life only, and look on their action in the world without as something which belongs to another and a meaner sphere. The University is appointed to correct this failing—to link the present, in which things seem petty, to the past which clothes them with a mellower light—to ennoble practice by a constant recurrence to theory—to show that intellectually as well as ethically there is nothing common or vulgar, nothing which may not and ought not to be considered as within the domain of Philosophy, who, the more perfect she becomes, sees more clearly that which is great in that which is the least. In undertaking, therefore, not only to educate in the ordinary liberal studies, but also to deal in a broad and lofty spirit with such large practical topics as this of law, the English Universities will in a new way justify their possession of that wealth and external splendour which they alone out of the great mediaeval sisterhood have been privileged to retain. They will associate themselves more closely with the life of the nation, and confirm the reverence with which it still regards them; nor is it idle to add that in thus enlarging the scope of their activity, they will be closely following and worthily maintaining the traditions of their glorious past.

XVIII _VALEDICTORY LECTURE_[252]

LEGAL STUDIES IN THE UNIVERSITY OF OXFORD

Twenty-three years have passed since I entered on the duties of the Chair of Civil Law in this University: and to-day, in obedience to precedents of high authority, I come to say some parting words suggested by the experience of those years. They have been years full of experience for us all: and it may be not unprofitable that I should note the changes they have brought and endeavour to estimate the position which legal studies, and especially the study of the Civil Law, have now reached in the University and in the country.

Those changes have been many and momentous. Since 1870 the University has nearly doubled the number of its undergraduates and has greatly increased the number of its teachers. It draws students much more largely from the less wealthy classes of the people. A new college has been founded, and risen to prosperity: an old one has been refounded and enlarged. Two colleges for women have sprung up and taken firm root. Theological tests have been abolished: persons not belonging to the Church of England as by law established have begun to resort freely to Oxford: two theological faculties belonging to unestablished religious bodies have come to dwell in her midst, and have received a courteous welcome. Nor have any of the unfortunate consequences predicted as likely to follow from the admission of Nonconformists been actually experienced, for there has been a diminution of theological controversy, a growing sense of friendliness and sympathy among Christians, a more assured peace in the minds of our students.

Footnote 252:

Delivered on resigning the Regius Professorship of Civil Law at Oxford, June 10, 1893.

The examination system has been remodelled, with a regrettable but perhaps inevitable increase of complexity, as well as enlarged by the inclusion of new studies. The University and the Colleges have been dealt with by Parliament and by an Executive Commission: and the serious consequent evils have been not wholly uncompensated by gains. Oxford has undertaken many new kinds of work. She provides University Examinations for Women, and sends zealous young lecturers everywhere through England to bring teaching of an academic type within the reach of the people.

As regards Law, while the degree of Doctor of Civil Law has become a true distinction by the requirement of a thesis of substantial merit instead of the former purely formal exercise, the B.C.L. examination (theretofore scarcely serious) was made by a statute of 1872 a reality: the standard both of honours and of the pass degree has steadily risen, and this rise has been accompanied by an increase of candidates. That examination is probably now, I do not say the most severe test of legal attainments, but the best arranged and most practically useful law examination in England. In the years preceding 1870 there were seldom more than two or three entrants for this examination, almost absurdly easy as it then was. There are now usually upwards of twenty and sometimes twenty-five. Similarly the number of candidates in the School of Jurisprudence, by which candidates can obtain the degree of B.A., has grown and the quality of the work has improved.

In 1868 there were only three Chairs in the Faculty of Law: those of Civil Law, Common Law, and International Law, besides the temporary Vinerian Readership; and of these that of Common Law was virtually in abeyance. In 1870 the work of the Corpus Professorship of Jurisprudence began with the lectures of an illustrious writer whose fame two Universities dispute, for if Cambridge reared him, Oxford gave him the occasion for teaching, Sir Henry Maine. In 1878 the Readership in Indian Law, and in 1881 that in Roman Law, was founded and the opportunity taken of placing in it the zeal and learning of a German civilian—Dr. Erwin Grueber—whose lectures have proved most helpful. In 1882 the Vinerian Chair of Common Law became (as we trust it will ever continue) a working chair by the choice of another distinguished man whose powers, always admired by his friends, are now recognized over the English-speaking world, and to whom belongs the rare honour of having devoted those powers to the service of his political allies in a great and burning controversy without impairing the respect which all parties feel for the depth and soundness of his constitutional lore.

Thus there are now seven working professorships: and to these we must add, in estimating the teaching force which the University possesses, the lectures of another distinguished writer who may be reckoned as virtually a law professor—the Warden of All Souls: and of more than ten College lecturers, who serve the University as well as their respective Colleges, with recognized efficiency.

Thus, upon a review of recent years, we may say that as the whole University has grown and expanded, so has also this side of her activity, and that which was once a dry riverbed, or presented, like a South African river, only a few scattered pools of stagnant water, has now become a wide and fertilizing stream.

That serious deficiencies exist I am well aware: I shall presently advert to them and to the steps that may be taken to remove them. For the moment, however, I am noting progress actually made and gains actually secured. Among these may be reckoned the assured position which the study of the Roman Law now enjoys.

Though this was the first subject recorded to have been taught in Oxford, for one of the earliest notices of the University is to be found in the sentence ‘Magister Vacarius in Oxenefordia legem (_sc._ Romanam) docuit,’ and though from his time (the reign of King Stephen) down till the seventeenth century it held a rank second only to that of theology, it had within the last hundred years virtually died out of the University, and this chair, founded by King Henry VIII in 1546, and occupied in the time of King James I by Alberico Gentili, had become a sinecure. A few law degrees no doubt continued to be given, but they carried no evidence of knowledge. The revival begins with the substitution in 1852 of an examination (albeit a very slight one) for the old formal exercises for the degree of B.C.L., and the creation in 1853 of the Law and Modern History School (in which the Institutes of Justinian were made a subject of examination). That School was in 1872 divided into the present two Schools of Modern History and of Law, in the latter of which Roman Law received a more important place. Till 1870, however, there was scarcely any teaching, and what little did exist in the colleges was confined to commenting upon the solitary book required for the examination. No one had lectured on the Digest; no one had treated the history of the subject. This was part of that remarkable isolation of England from the general current of European legal thought and practice which was due partly to the resistance to the encroachments of the Canon Law, first of the barons in the thirteenth century, and again of the Parliament under Richard II, partly to the great religious breach of the sixteenth century, an isolation once politically fortunate, for it helped to develop the free spirit of the common law, but in our days, when the old dangers have vanished, a circumstance to be regretted and removed. Among the modes of removing it, the study of the Civil Law is not the least important. That study may now be deemed to have struck here in Oxford deep and tenacious roots. Both in our examinations and in our teaching it holds a place equal in dignity to English Law, though doubtless of narrower compass. It attracts in fully as large a measure the interest of the more intelligent among our students, and it can hardly be doubted that the excellence of the Law School in the future will largely depend upon its maintenance as a main element in both teaching and examination.

Its practical utility to the English lawyer is one of the points on which you may expect the results of my experience to be stated; for it is a point upon which attention must be constantly fixed, and I have had opportunities of studying it amid the din and dust of forensic practice in London no less than in the cloistered seclusion of Oxford.

In the Inaugural Lecture which I delivered here in 1871, an attempt was made to treat this subject. It was there pointed out that the utilities of the Civil Law to Englishmen might be reduced to three heads. One was its connexion with the main stream of the world’s history from the time of Pyrrhus, the first formidable antagonist from non-Italian soil whom Rome overthrew, to that of Muhamad, by whose first successors the East was torn from her grasp; and its influence, less conspicuous, but still considerable, upon the growth of opinion and the development of institutions ever since. This is an aspect of the subject which, since it belongs rather to the historian than the lawyer, I shall not pursue further to-day, though subsequent reflection leads me to believe that its importance can hardly be overrated. The second utility was to be found in the fact that Roman Law is the substratum of some branches of English Law, directly of the law administered in the Probate and Admiralty Division of the High Court of Justice, and indirectly of a good deal administered in the Chancery Division, in the further fact that it is the actual law of some of our colonies from which appeals come to the Privy Council, as well as the foundation of the law of Scotland whence appeals come to the House of Lords, and in the command which it gives of the law of modern continental Europe, since it is the basis of the systems that prevail in all those countries, and its knowledge is a sort of master-key to each and every of them. These circumstances—so I then argued—make it practically serviceable to the practitioner, and justify a man bent on professional success in devoting some time to its study. The third utility was to be found in its educational value, as forming the mind and training the aptitudes of the student devoting himself either to the theory or the practice of English Law. On these latter two of the above-mentioned three points it is proper to say a few words.

An observation extending over twenty-two years leads me to lay less weight than I laid in 1871 on the direct professional gain, in the way of securing practice at the bar, to be expected from a knowledge of Roman Law. Sometimes no doubt a man may find such knowledge directly helpful in writing opinions (especially if points of Scotch or French or German or Roman Dutch law arise), or in arguing before a Court. Once in addressing the House of Lords in a Scotch Appeal I discovered a pretext for quoting the Digest, which that august body received with grave approval, as not unbefitting the large survey they are wont to take of every matter that comes before them. But instances of this kind are rare in ordinary practice. It would be unbecoming to dilate upon this aspect of the question, for a University is the last place in which the worth of knowledge ought to be measured by its merely gainful utility, or where our studious youth ought to be led to set their hearts upon immediate practical success. Still, if one is asked to deal with the point upon a hard utilitarian basis, I cannot allege that the advantage to be expected from the possession of this acquirement does much more than counterbalance the impression which still prevails in the ‘other branch of the profession,’ that it is a little uncanny for a barrister to be known for anything except his knowledge of the English Law. Things might fall out differently for the young civilian to whom a judicious firm of solicitors vouchsafed a chance of getting into Canadian Appeal business or Admiralty business. But in such a world as the present, and more particularly at the bar, one cannot await chances or shape one’s course with a view to them; one must seize those that come and float onwards with the tide. The ambitious junior may desire to be employed in subtle questions of insurance or company law, but if briefs are offered him at the Old Bailey or even in the Divorce Court, he will probably deem it wise to accept them, and to wait till his position is assured before he begins to pick and choose among the business which clients send. In the long run, no doubt, a man who knows Roman Law will find many cases in which, when he has attained a front rank in the profession, he can profit by that knowledge. But the main thing for the practitioner is to get a start; and it is not certain that any one will get this start sooner by being as good a civilian as Oxford can make him.

This may be deemed a somewhat sordid aspect of the matter; so let me hasten to correct any possible misapprehension by adding that as respects the third head of utility—that of the benefit to a student’s mind which training in Roman Law gives, I can dwell upon it with a confidence deepened by the experience of every year. Far be it from me to disparage the law of England as it was disparaged by the eager reformers of seventy or even of fifty years ago, impatient of the defects, many of them removed since their days, which then marred its noble proportions. It is a system worthy of all admiration for its humane spirit, for the sense of civic equality and personal freedom which pervades it, for its elastic power of adapting its provisions to the needs of the great communities that live by it, not here only but beyond the Atlantic and beneath the Southern Cross. Its faults lie not in its substance but in the form which the historical conditions of its growth have given to it. It is a system extremely hard to expound and hard to master. So vast is it and so complicated, so much are its leading principles obscured by the way in which they have been stated, scattered here and there through cases reported in a chronological order, which is the perfection of disorder, so much have many of its main doctrines been cut across and (so to speak) dislocated by modern Statutes, that it presents itself to the learner as a most arduous study, a study indeed which only a few carry so far as to make themselves masters of the whole body of our working rules. Roman Law, on the other hand, is not only simpler, since it wants those differences between real and personal property, and between legal and equitable rights to which so much of our English complexity is due, but more limited in its range, large modern departments, like those of company law and insurance law and negotiable instruments, being absent. It is therefore a subject the whole of which the student can more easily bring under his eye, seeing the various parts in their relation to one another. What is of still higher import, the Roman Law is symmetrical and coherent. Each part not only has, but displays, its organic relation with every other part. The original sources in which we possess it are of moderate bulk, not larger than the English Law Reports of the last four or five years, and not a two-hundredth part of the total volume of our Reports.

Less than one-fourth of these writings is now of practical consequence, for the remainder, though interesting historically, deal with matters not significant to the modern lawyer. But the fraction which still concerns us is of the highest possible merit. In it one may find something of value upon almost every principle and general legal doctrine with which a jurist has to deal. The legal conceptions set forth are those upon which all subsequent law has been based; and nearly all of them find their place in our own system, which they have largely contributed to mould. Two of the Roman text-books deserve special mention. The Institutes of Gaius is a model of vigorous precision and lucidity, an elementary treatise to which we have nothing comparable. The Digest of the Emperor Justinian, containing short extracts from a number of the most eminent legal writers of earlier times, has excited the admiration of all succeeding generations by the concise, delicate, and philosophical way in which principles are set forth and points of detail investigated. Its contents are philosophical, not in the sense of being abstract, but in the firm grasp of principles, and the refined exactitude with which every principle is applied. No rules could better conform to the three canons of good law, that it should be definite, self consistent, and delicately adapted to the practical needs of society. No study can be better fitted to put a fine edge upon the mind, or to form in it the habit of clear logical thinking.

In England we have nothing similar, and although the study of case law may be made, and has sometimes been made in the hands of a skilful teacher (such as Mr. C. C. Langdell, of the Harvard University Law School), as good a training in subtlety and exactness as the Roman Law or indeed as the scholastic logic of the Middle Ages, the immense bulk of our cases makes it difficult to pursue such a method over the whole field which a learner ought to cover.

‘Nevertheless,’ some one may say, ‘even if the merits claimed for the Roman system be admitted, it is not our English system, and you are doubling the learner’s labour. Why should he add to the time and toil that the study of English Law needs, the time and toil, less though it be, needed for mastering the Roman? Why attempt both, when one alone is, on your own showing, so arduous?’

The answer is that the learner will make quite as rapid progress with English Law if he has begun with Roman as if he proceeds to break his teeth from the first upon the hard nuts of our own system. Twenty-one years ago I ventured to say this here and I venture now to repeat it with fuller confidence. Two men of equal ability and diligence start together after taking their B.A. degree. One gives a year to Roman Law and the two next to English. The other devotes to English the whole three years. At the end of the three years the first will know as much English Law as the second. He may not have covered so much ground or got on his tongue the names of so many cases, but he will know what he does know—nor will it be much less in quantity—more thoroughly and rationally. The explanation is twofold. In learning Roman Law, one learns the elements of law in general, and therefore of English Law also, these elements being more easily learnt from Roman sources, than they could be in the form they have taken among ourselves. And, secondly, in learning Roman Law one obtains a means of testing one’s comprehension of the real meaning of English terms and the nature and compass of English rules, which deepens and strengthens the learner’s hold upon his knowledge. The main difficulty which besets students till they have had a good deal of actual practice is to turn into the concrete the rules they have learnt in the abstract, or as a Roman lawyer says, _Leges scire non est verba earum tenere sed vim atque potestatem_. The study of reported cases is a valuable aid in grasping the practical application of rules, but cases are complicated by many details extraneous to the principle. When, however, a man has so mastered the main outlines of Roman Law as to be familiar with its conceptions and understand the application of its leading rules, he is naturally and almost necessarily led in his study of English Law to compare the conceptions and rules he finds there. His text-book tells him, for instance, that the English rule regarding the passing of the ownership of an object sold, is such and such. What is the Roman rule? If the two rules agree, he remembers the English better. If they vary, he is led to ask why; and he obtains a juster view of the origin, bearings, and range of the English rule from perceiving wherein it differs from the Roman. If any one thinks there is a risk of his confounding the two, and becoming muddled between them, I can only say that I have never known this happen, partly, perhaps, because in dealing with Roman Law one thinks in Latin—a good thing to do—and expresses in its technical terms the result one arrives at. On the contrary, the student gets a clearer and sharper view of the grounds of every doctrine, and of its precise compass, than he could get from studying either system by itself. It is as when in studying a foreign language one translates constantly backwards and forwards into one’s own, and obtains thereby both a finer perception of the idioms of both, and a more exact comprehension of the substantial meaning of every sentence that is so translated.

I may be reminded that the advantage here claimed does not apply to all departments of Roman Law alike, but to those only which cover the same field as our own Law. The remark is true, and draws with it a practical lesson. The subject has two aspects. Besides its intrinsic scientific interest as a vast and harmonious system, it has a historical aspect for the scholar and the student of institutions: it has a practical or professional aspect for the lawyer. Different parts of it are especially interesting to one or other of these classes. Much of the law of persons, of crimes, and of procedure, while it engages the curiosity of the scholar or historian, is too remote from modern conditions of life to attract, or to profit, the jurist of to-day. What he will chiefly value are the parts that deal with the law of Property, including Inheritance (though even in this there is a good deal whose interest is now merely historical) and of Obligations, together with some parts of the law of persons, such as marriage and guardianship. These are the parts on which the teacher should here in England expend his efforts, for it is in these that the comparison with English Law is chiefly instructive. He should lead the student along a path from which the parallel territories of English Law are in full view, and carry him constantly to and fro across the border. So if I may, at the risk of seeming to transgress a Roman rule, give a legacy to an uncertain person, I will bequeath to my successor, whoever he may be, this maxim as the best practical result of my experience—that Roman Law must always be so taught as to be brought into the closest and most constant relation with English Law, since it will thereby become not only more helpful but more enjoyable to both learner and teacher. It ought to be treated as a practical working system, full of life, not only because it is preserved to us in lifelike detail, but also because it is still actually in force as the operative law of some countries, full therefore of direct instruction and suggestion for ourselves, capable of being used to enlarge English conceptions or indicate useful modifications of English rules.

In discoursing on it, if I may in this expiring swan song refer to my own experience, I have usually passed by what may be called its antiquarian aspects, not from any want of interest in them, but because the object of quickening the interest and training the intellect of the _cupida legum iuventus_ seemed more urgent. It has been rather in the public lectures delivered from time to time before the University, that I have endeavoured to develop and illustrate the wider historical relations of the law of Rome, and to connect it, sometimes in the letter, sometimes in the spirit, not only with the history of the Empire and the Church, but also with the problems of abstract jurisprudence, with political ideas and constitutional forms, with the legal institutions of peoples remote in time, like the primitive Icelanders, or dissimilar in race and habits, like the Musulmans of the contemporary East, with current questions on which Roman experience sheds light, such as the law of Marriage and Divorce, with the enterprises of modern law-makers, like the Legislatures of the States of North America or the rulers of British India. Sometimes these lectures may seem to have strayed beyond the strict limits of the Chair. I have then fallen back on the ancient adage _Roma caput mundi regit orbis frena rotundi_, and have feigned for the Imperial law a continuance of its oecumenical authority. The Roman law is indeed still worldwide, for it represents the whilom unity of civilized mankind. There is not a problem of jurisprudence which it does not touch: there is scarcely a corner of political science on which its light has not fallen.

In the opportunities for such placing the two systems side by side lies the one great advantage which English and Anglo-American civilians enjoy as compared with their continental brethren. To the latter the Roman Law is the basis—in some countries it may almost be called the modified substance—of the current law. To us it is a parallel system with which comparisons can be made. These comparisons are eminently fertile in elucidation of the past condition of both systems, and in criticism of their present condition. To no scholars ought the early history of the Roman Law to be at once so easily comprehensible and so instructive as to us in England, because the history of our own law is full of beautiful analogies therewith. So no jurists are better able to estimate the value of Roman doctrines on many principles of contractual law, because our system has developed independently, and illustrates the Roman equally where it differs and where it agrees. We in England cannot pretend to rival the work which the great Germans of this century, men like Savigny and Vangerow, Ihering and Windscheid and Mommsen, have done for the investigation and exposition of Roman jurisprudence and legal history. But our detached position ought to give us a perspective and a freshness of critical insight, perhaps even a means of comprehending things by reading our own experience into them, which continental scholars sometimes lack; and of that experience, we may trust, due use will some day be made. For I cannot doubt, looking not only to the progress of the study in England, but to its rapid and solid growth in the Universities of America, that the study of the Roman Law, once so nearly extinct among us, is now destined to shine with a steady light for generations to come.

I had intended to review, in connexion with the progress of our own law school, the changes which have passed on the aspects of legal science in England within the last thirty years. Two among them give cause for regret, the decline of interest in projects for simplifying and consolidating the law, and the growing despondency wherewith attempts to amend our legal procedure are now regarded, a despondency probably due to the imperfect success which has attended those Judicature Acts from which so much was hoped twenty years ago. There are few countries in which so small a proportion of the men engaged in professional work show an active interest in legal reforms. Against these grounds of disheartenment I should have set the increasing zest wherewith the comparative method is being historically applied to the investigation of the origin of law and of political institutions, and should have dwelt on the revived study of primitive custom as the foundation of those institutions, as well as on the more active discussion of constitutional questions generally, whether foreign, or American, or domestic, and the vigour which so many of our younger writers show in examining the ethical and economic bases and grounds of law, with views wider and more sympathetic, if also more suffused by the moist light of emotion, than were those which some among us drew from the Utilitarians of the last generation. But these topics would lead me too far afield; it is for the present enough to observe two happy changes which we have ourselves seen—one, the warmer interest which the two ancient Universities display in the problems that engage the attention of social reformers and the willingness they show to aid practically in their solution; the other the much larger share which the jurists and constitutional students, as well as the economists, of America and the British colonies have come to take in all these discussions. As our books are known and conned beyond the ocean, so here we read and prize the most eminent colonial writers; and we find in an American magazine, the _Political Science Quarterly_, an excellently conducted organ, such as Britain has not yet been able to provide, for the discussion in a scientific spirit of a whole class of constitutional and quasi-political questions. As the isolation of England from Continental Europe is less marked than it was half a century ago, so still more conspicuously does the intellectual and moral unity of the English race dispersed throughout the world stand forth to-day in a clearer and fuller light.

Let us turn back to consider what still remains to be done to give this law school, now firmly established in the University, its due hold upon the legal profession and its due opportunities of promoting the progress of legal science. None of us can be blind to its present deficiencies. We have accomplished less than we hoped in raising up a band of young lawyers who would maintain, even in the midst of London practice, an interest in legal history and juristic speculation. The number of persons in England who care for either subject is undeniably small, probably smaller, in proportion to the size and influence of the profession, than in any other civilized country; and it increases so slowly as to seem to discredit the efforts of the Universities. Of those who have undergone our law examinations comparatively few have either enriched these subjects by their writings, or have become teachers among us, or have taken any part in promoting legal studies elsewhere[253].

Footnote 253:

A very few names occur to me of persons who have so written or taught, but I abstain from mentioning these lest I should omit others.

How is this deficiency, which ought to be candidly confessed, to be explained? No one will lay it at the door of the University and College teachers, whose eminent services have been already referred to. To me it seems chiefly due to the following causes, causes which I mention because they may all be removed. One of them is the short-sighted and perhaps somewhat perverse unwillingness of the authorities who control admission to practice in both branches of the profession in London, to give full recognition to our Oxford Law Examinations and Degree. Were the tests we apply so recognized as to relieve one who had passed them from all examinations for admission either to the bar or to practice as a solicitor, except such examinations as turn upon those purely practical matters which can only be learnt in a barrister’s chambers or a solicitor’s office, a strong motive would be supplied to men destined for the profession to pursue their legal studies and take their legal examinations here, where we may without vanity say that both teaching and examining are understood much better than by the professional authorities in London. Needless to add that the University would be perfectly ready to allow those authorities every means of satisfying themselves of the character of her examinations, as the General Medical Council is accustomed to supervise the medical examinations of the various medical bodies.

A second cause lies with Oxford herself in her own examinations. Not only do they cramp the teacher, practically debarring him from some topics; but they are so arranged as to prevent the Law School from receiving, with some few exceptions, men of the first intellectual rank. The ablest and best prepared of the students naturally, and rightly, enter the classical school, and find themselves obliged, when they have obtained their degree in it at the age of twenty-three, to quit the University for the work of life. Do not suppose that I for a moment desire to draw such men away from the classical school. No one who has himself passed through the training of that school will doubt its superior value to even the best-arranged Law School, as a part of the education needed to make a good scholar, a good citizen, and a good Christian. What we want is such a revision of our arrangements as will bring men to the University somewhat younger, and will enable those who have obtained honours in the school of Literae Humaniores, and intend to follow the legal profession, to pass into the Law School when they have taken their B.A. classical honours, and devote at least a year (though in the Law Schools of America two years at least are thought needful) to professional studies. At present Oxford is in the absurd position of practically excluding from the legal instruction which the University provides the most promising of her students, the very men who are best fitted to turn it to account in their subsequent career. They spend at school a year which they ought to spend at college, and they spin out their general studies so long that they are unable to obtain that scientific training in the future work of their life which the University has been at such pains to set before them. To find time and make provision in our curriculum for professional as well as general literary studies was one of the chief problems which the Commissioners of 1878-81 ought to have dealt with. Their failure throws back upon the University herself the duty of reform. Other, though less material, causes may be found in the undue prominence which examinations have been suffered to take in the system, and in the very unsatisfactory relations between the teaching provided by the University and that which the Colleges supply, relations which involve much overlapping and a serious waste of teaching power.

I need not pursue this topic into its details. Let it suffice to remark that it is not merely for the sake of the University that one would desire to see her influence upon legal studies extended. Over and above that general liberal education which it is her main business to give, and on which neither law nor any other special study must be suffered to infringe, it is her duty to handle professional studies in a wide and philosophic spirit, to raise them above mere gainful arts into the domain of science, to draw to herself the ablest of those who are entering these professions, the men from whom each profession receives its tone and temper. You all know how much the practical sciences, such as medicine, chemistry, and engineering, have gained by being closely associated with the pursuit of abstract science. No less true is it that men who follow these occupations, and those who devote themselves to the bar or to the church, profit by their association with literary and scientific culture and its central home here, feeling themselves members of a great learned corporation, and carrying away with them the influence of the ideals it has taught them to cherish. It is upon the clergy that this influence has hitherto told most; nor has anything done more to keep the clergy of the Church of England from becoming a caste and to stimulate their activity in those fields of philosophic and historical research wherein they have won so much distinction. One would like to see the University lay the same hold on the other great professions likewise.

This, however, is only one of the points in which observers who have watched and studied Oxford from without as well as from within are disposed to think that she does not fully comprehend, does not at any rate fully use, her unrivalled opportunities. I touch upon a delicate point. Yet as Homer occasionally invests a dying warrior with prophetic gifts, one who is on the eve of departure may be permitted to give expression to some of the aspirations that have long filled his mind when he has thought of what Oxford might achieve. She seems at present to be too exclusively occupied not only with the giving of a general liberal education (to the disparagement of professional studies), but also with her regular curriculum and those who follow it, to the neglect of those others, now comparatively few, but capable of almost indefinite increase, who desire not so much to follow a regular course or secure a degree as to obtain special training in some department of learning. Have we not, in our English love of competition and our tendency to reduce everything to a palpable concrete result, allowed the examination system to grow too powerful, till it has become the master instead of the servant of teaching and has distracted our attention from the primary duty of a University? It is not any revolutionary change one would desire to see. Such changes are seldom either easy or salutary; while as regards the college system, I find something to regret in those inroads upon the social life and corporate character of the colleges for which the last Commission is responsible. The reform chiefly needed is a reform that would neither injure the Colleges nor affect the character of the University as a seat of general liberal education. Rather let us return to the older conception of a University as a place to which every one who desired instruction might come, knowing that as Oxford took all knowledge for her province she would provide him with whatever instruction he required. The abundance and the cheapness of literature have not diminished, perhaps they have even stimulated, the demand for the best oral teaching, while the recent establishment of so many prosperous colleges in the great towns, the spread of University Extension lectures, the growth of Science schools, have immensely increased the number of young men who would come hither for a year or more to obtain such teaching were they sure of finding it. What is the present position? There are professors, many of whom, eminent as they are, cannot secure proper classes, because the undergraduates are occupied, under the guidance of the college teachers, in preparing for degree examinations. For the teaching of some important branches, especially in natural and in economic science, no adequate staff is provided. England has been outstripped not only by Germany but also by the United States, in the provision of what the Americans call Post-Graduate courses, a provision which even the present poverty of the University need not hinder her from making, were but a reasonable system of fees introduced and revenues husbanded that are now unprofitably spent. Both the new University teachers who might be created and the present professors to whom the existing system refuses hearers would be only too happy to give those courses, if the students could be found and the requisite arrangements made. The men who would attend the courses are to be found, some of them within, many more without the University. Those without do not come because the courses have not been offered: and to provide for both sets, existing arrangements must be remodelled, for these contemplate only the normal undergraduate who arrives at nineteen, is examined, and departs at twenty-two or twenty-three, and take no account of those who desire neither examinations nor degrees, but simply to perfect themselves in some department of science or learning. Were such courses offered, and were those antiquated arrangements altered, you might soon expect a sensible afflux of students, not from England only, but from far beyond the bounds of England.

Perhaps those who dwell in Oxford have scarcely yet realized the magnificent position this University holds, as not only the oldest and the most externally beautiful and sumptuous place of education in the English-speaking world, but as a spot whose name and fame exert a wonderful power over the imagination of the English peoples beyond the sea, many of whose youth would gladly flock hither were they encouraged to do so by arrangements suited to their needs. For those among the studious youth of the United States and Canada who desire to follow out their special studies, I can safely say from what I have seen of Canada and the United States that did Oxford and Cambridge provide what the Universities of Germany provide, and were it as easy to enter here and choose the subject one seeks to study as it is in the Universities of Germany, it is to Oxford and Cambridge rather than to Germany that most of them would resort: nor could the value be overestimated of such a tie as their membership here would create between the ancient mother and the scattered children, soon to be stronger than their mother, but still looking to her as the hallowed well-spring of their life.

It is always sad to part from work with which the best years of one’s life have been largely occupied: and to me this common regret is deepened by the associations, full of antique dignity, of the office I am resigning and by the nature of the work which has been a source of unfailing pleasure. And my regret at parting is the keener because I part from the place where I have known so many of those brilliant figures whom the last twenty years have taken from us, one of them happily still in the world, though long since lost to the University which his splendid powers adorned,—I mean Mr. Goldwin Smith,—the rest now living only in our recollection. Vividly there come back to me as I stand by the open gate, the kindly wisdom of the late President of Corpus Christi[254], most loveable of men; the luminous and fertile intellect of Sir Henry Maine[255]; the masculine force and high sense of public duty of Thomas Green[256]; the penetration and learning, not more wide than exact, of Mark Pattison[257]; the fine taste and golden lips of Henry Liddon; the warm heart and vehement discourse and noble love of truth of Edward Freeman[258]; the fire, the courage, the eagerness, the zeal in all good causes of one whose university lectures and sermons were so powerful a stimulus to many of us in our undergraduate days, Arthur Stanley[259]. These men had some sharp contests in their lives, but they are all alike enshrined in our memory as men of whom the Oxford of those days may well be proud.

Footnote 254:

Dr. John Matthias Wilson, formerly Professor of Moral Philosophy.

Footnote 255:

Formerly Corpus Professor of Jurisprudence.

Footnote 256:

Formerly Professor of Moral Philosophy.

Footnote 257:

Formerly Rector of Lincoln College.

Footnote 258:

Formerly Regius Professor of Modern History.

Footnote 259:

Formerly Regius Professor of Ecclesiastical History, afterwards Dean of Westminster.

Nor must a word of grateful farewell be omitted to those colleagues in the Faculty of Law—among whom I will venture to reckon the Warden of All Souls—whose thoughts and plans it has been a constant pleasure to share, and with whom I have lived these many years in a friendship which no cloud of personal disagreement, nor any divergence of political opinions, has ever for a moment darkened. With the regret of parting I carry away the delightful recollection of those years, and a sense which time will not diminish of the honour it has been to be permitted so long to serve this great University, the oldest and most venerated of the dwellings of learning in Britain, dear to us not only because our brightest years were spent among her towers and groves, but still more because in her, as now in maturer life we scan a sometimes troubled horizon to watch for signs of storm, we see an institution which has stood unshaken while dynasties have fallen and constitutions have been changed, and which still and always, placed above the shock of party conflicts and renewing her youth in fresh activities from age to age, embodies in visible and stately form the unbroken continuity of the intellectual life of our country, and still commands, as fully as ever in the past, the loving devotion of her children. [Blank Page]

INDEX

Abolitionists, in America, i. 414.

Aborigines, in Australia, i. 549.

Achaean League, i. 204.

Adoption, by Indian princes, i. 37; in Indian law, i. 124; by Roman emperors, ii. 482.

Adultery, a crime in Indian Penal Code, i. 126; in Roman law, ii. 403.

Aeschylus, quoted, i. 167.

Afghanistan, i. 20.

Agricola, i. 15; ii. 405.

Alabama case, i. 416.

Alarich II, laws of, ii. 356, 483.

Algeria, i. 293.

Alsace, annexation of, i. 305.

Althing, or general assembly, in Iceland, i. 322-332, 347, 354.

Althusius, on sovereignty, ii. 85.

Amendment of constitution, i. 151, 205-217; in Australia, i. 523-525.

America. _See_ United States.

_American Commonwealth_, referred to, i. 201, 211, 377; ii. 41.

Analytic school of jurisprudence, ii. 178-184.

Anarchism, ii. 28, 170.

Areopagus, i. 92.

Argentina, constitution of, i. 212, 253.

Aristocracy and flexible constitutions, i. 178-185.

Aristotle, i. 155, 430; ii. 2, 125, 317, 484.

Armenia, i. 20.

Army of Rome and India, i. 17, 18, 45.

Asiatic peoples, ii. 16-18.

Augustus, ii. 26, 61, 67, 68, 257, 289, 404, 405.

Austin criticized, ii. 89-97, 127, 180-184.

Australia: constitution of the Commonwealth, i. 468-553; movement for federation, 471-482; conditions favouring federation, 483-489; character of federation, 489-491; distribution of powers between Commonwealth and States, 491-494; position of States under constitution, 494-498; differences from United States and Canada, 498-501; few restrictions on powers of Commonwealth, 501-504; the legislature, 504-507; the executive, 508; the judiciary, 508-512; dependence of executive upon legislature, 513-516; provisions against deadlocks, 516-518; relations of the two Houses, 518-521; miscellaneous provisions, 521-523; amendment of constitution, 523-525; relations of Commonwealth to British crown, 525, 526; comparison with United States and Canada, 527-530; general observations, 531-535; democratic character, 535-539; political parties, 539-541; future political issues, 542-546; possible entrance of new States, 547-551; future relations to Britain, 551-553.

Austro-Hungary, constitution of, i. 203, 284, 470; ii. 91, 92; divorce in, ii. 450, 451.

Bacon, i. 261; ii. 96, 480.

Baker, Newton D., ii. 446.

Banns, publication of, ii. 417.

_Basilica_, of Leo, ii. 341, 378.

Belgium, divorce in, ii. 450, 451.

Bentham, criticized, ii. 3, 44-48, 88-97, 127, 179-184.

Bernier, on Mogul empire, i. 10.

Betrothal, in Roman law, ii. 393.

Beyrut, law school of, ii. 264, 320.

Bills, in House of Commons, ii. 325, 499.

Bishops, in Iceland, i. 327.

Bismarck, ii. 25.

Blackstone, i. 118; ii. 77, 166, 181, 265, 427, 430, 491.

Blood feuds, i. 321; ii. 212.

Bodin, on sovereignty, ii. 84, 85.

Bologna, law school of, i. 105; ii. 219, 231.

Bosnia, ii. 102.

Boss system in America, i. 417; ii. 30.

Bowen, Lord, ii. 199, 266.

Bracton, ii. 261, 332.

Brand, President, i. 463.

Breach of promise, action for, ii. 394.

Brehon law, i. 111; ii. 188.

Bulgaria, constitution of, i. 210, 211; ii. 102.

Cabinet government, in England, i. 177; under the Australian constitution, i. 513-516.

Cairns, Lord, ii. 199, 266.

Cairo, university of, ii. 219-231.

Calhoun, i. 395; ii. 105.

Canada, constitution, i. 197, 198, 203; compared with Australian, i. 470, 478, 488, 492, 495, 497, 498-501, 527-530; law of divorce, ii. 443.

Canning, Lord, i. 37.

Canon Law, growth of, i. 105, 106; ii. 245; regulation of marriage and divorce by, ii. 414, 416-420, 433-435.

Cape Colony, i. 432.

Capital, of United States, i. 406; of Australian Commonwealth, i. 523.

Caracalla, edict of, i. 48, 99; ii. 147, 354.

Case law, compared with praetorian edict, ii. 281-293.

Caste, i. 68.

Catullus, i. 27, 53; ii. 393.

Caucus, the, i. 177.

Celibacy, discouragement of, at Rome, ii. 401, 409; of clergy, ii. 414.

Centripetal and centrifugal forces, their action on political constitutions, i. 255-311; interest and sympathy, 263-265; race and religion, 265-267; how constitutions may utilize centripetal forces, 271-281; and how modify centrifugal forces, 281-295; illustrations from United States, 295-298; probable results in the future, 300-311; effect of conquest and family succession, 303-307.

Chancellor, the Lord, as builder of equity, ii. 164-166; as law-maker, ii. 271, 279-281.

Character, of conquering races, i. 59-61.

Chartism, i. 175, 238.

Chastisement of wife by husband, ii. 426.

Christianity, unifying influence of, i. 3; persecution of, i. 53; in India, i. 69; introduction into Iceland, i. 350, 351; as affecting growth of law, ii. 242-246, 352; influence on Roman law of divorce, ii. 406-409.

Church, identified with State, ii. 240.

Cicero, against Verres, i. 27, 89, 94; ii. 275; on the Law of Nature, ii. 133-138, 173; on the Twelve Tables, ii. 347, 494; divorced his wife, ii. 404.

Citizenship under Roman empire, i. 48, 90.

Clarendon, Constitutions of, ii. 360.

Claudian, quoted, i. 75.

Claudius, Emperor, ii. 411.

Climate, effect of, on Roman and Indian empires, i. 63, 64.

Clive, i. 9, 13, 28, 60.

_Codicilli_, ii. 289.

Codification, of Roman law, i. 104; of French law, i. 107, 388; ii. 376; of German law, i. 108; ii. 377, 479; of Indian law, i. 121-133; of Icelandic law, i. 341-343.

_Coemptio_, Roman marriage by, ii. 388-390.

Coke, Lord, ii. 199, 260.

Collectivism, i. 309.

Colonies, of England, i. 4.

Colour of Race, effect of, in Roman and Indian empires, i. 64-67, 291-294.

_Comitia_, ii. 297-303.

Commands, laws as, i. 334; ii. 3, 44-48, 194.

Committee stage, in English legislation, ii. 328.

Commonwealth. _See_ Australia.

Comparative method of jurisprudence, ii. 170, 186-190.

Concubinage, ii. 413.

_Confarreatio_, Roman marriage by, ii. 388-390.

Congress, as a legislative body, ii. 323-326.

Conquest, formation of empire by, i. 8-16; extension of Roman law by, i. 88; ii. 78; effect of, as a centripetal force, i. 303-307.

_Consistorium_, ii. 314.

Consolidation: of law in India, i. 131; of law in America, ii. 326; of English law, ii. 331, 499.

Constantinople, law school of, ii. 264, 320.

_Constituta_, of Roman emperors, i. 99; ii. 311.

Constitutions: of Rome and England, i. 145-150; proposed new classification, 150-159; origin of flexible, 159-162; strength and weakness of flexible, 162-178; aristocracies, 178-185; influence on the mind of a nation, 185-193; capacity for territorial expansion, 193-196; origin of rigid, 196-205; enactment and amendment of rigid, 205-217; definiteness of rigid, 217-221; stability of rigid, 221-228; interpretation of rigid, 228-234; democracies, 234-242; future of flexible and rigid, 242-249; possibility of new types, 249-252; classes of governments, 253, 254.

Contract code, in India, i. 128-130.

Contractualists, the, ii. 1-5, 163.

Convention, for amendment of constitution, i. 211, 213, 216, 476.

Cousins, intermarriage of, ii. 411.

Criminal law, i. 92; ii. 334.

Croatia, i. 268.

Cromwell, Oliver, i. 8, 200; ii. 60, 68.

Crown colonies, i. 5.

Custom: source of Icelandic law, i. 334-337; of law generally, ii. 211, 251, 268, 334.

Customs duties, in Australian constitution, i. 522.

Dacoity, i. 25.

Dante, i. 379; quoted, ii. 80, 158, 310.

Dartmouth college case, i. 496.

Darwin, i. 366; ii. 150.

Deadlocks, provisions against, in Australian constitution, i. 516-521.

Deceased wife’s sister, marriage with, under Roman law, ii. 412.

Decemviral legislation, at Rome, ii. 341.

Declaration of Independence, ii. 35, 139, 163.

Deference, as ground of political obedience, ii. 9, 14.

Delegations, in Austro-Hungary, ii. 92.

Democracy and rigid constitutions, i. 234-242.

Democratic character of Australian constitution, i. 535-539.

Demosthenes, quoted, ii. 126, 158.

Denmark, acquisition of Iceland by, i. 357; constitution of, ii. 61, 63; divorce in, ii. 450.

Dicey, Prof. E., i. 157; ii. 267, 506.

Dictator, i. 170; ii. 55.

Diet, of empire, i. 323, 355, 376.

Diocletian, ii. 319, 342, 352.

Divorce: in Ireland, ii. 370, 382, 438; in Scotland, 382, 435-438; in Roman law, 402-406; influence of Christianity on Roman law, 406-408; under canon law, 433-435; later law in England and Scotland, 435-438; laws in United States, 439-443; American statistics, 443-449; in modern European countries, 450-453; connexion with conjugal infidelity, 461-463; does English law need amendment? 465-469.

_Donatio propter nuptias_, ii. 398, 407, 432.

_Dos_, in Roman law, ii. 397, 406, 432.

Dower, ii. 420, 427, 432.

Drayton, quoted, ii. 150.

_Droit Naturel_, ii. 169, 173-178.

Duck, Arthur, ii. 160, 477.

Dutch law, in South Africa, i. 86, 109, 439.

Dutch republics, in South Africa, i. 430-467.

Ecclesia, of Greek cities, i. 183; ii. 297.

Ecclesiastical courts, ii. 420, 421, 435.

Edict of the praetor, i. 91, 92; ii. 275, 282-285, 291.

_Edictum perpetuum_, ii. 288.

Education, in Roman and Indian empires, i. 57, 73.

Edward I, legislation of, ii. 360.

Egypt, political position of, i. 35, 70, 102, 267, 282; ii. 61, 103.

El Azhar, mosque and university, ii. 219-231.

Elegance, in Roman law, ii. 198, 495.

Emancipation of women, ii. 401, 458-460, 470.

Empedocles, quoted, ii. 126.

Emperor: as sovereign in middle ages, ii. 80; as source of law at Rome, ii. 308-321.

England: Roman empire compared with British empire in India, i. 1-84; extension of English law throughout the world, i. 85-144; the constitution, i. 145-147, 152, 155-158, 165, 168, 171, 172, 174, 183, 191, 192, 194, 206, 230, 244-249, 272; sovereignty of Parliament, ii. 57, 61, 68, 90, 109; conception of equity as affected by law of nature, ii. 164-167; analytic school of jurisprudence, ii. 178-184; want of elegance in English law, ii. 199; legal writers as sources of law, ii. 260-269; judges as sources of law, ii. 270-272, 278-281; case law, ii. 281-291; legislation by Parliament, ii. 321-331; five epochs of legal change, ii. 343; outline of progress of legal changes, ii. 358-366; comparison with Roman law, ii. 367-375; private law least affected, ii. 377-380; law of marriage, ii. 419-424; property relations of consorts, 424-427; gradual amendment of law, 423-427, 468, 499; law of divorce, 433-438; does law of divorce need amendment? 465-469.

English language in India, i. 74.

Ennius, quoted, ii. 181.

Epicurus, ii. 127.

Equality theory of marriage, ii. 431-433, 470.

Equity, in Roman law, ii. 143; in English law, ii. 164; in Indian law, ii. 166; as amending law of wife’s property, ii. 427, 428.

Erastianism, ii. 210.

Eurasians, in India, i. 66, 69, 136.

Euripides, quoted, ii. 384.

European influence over rest of world, i. 1.

Evidence Code, in India, i. 128.

Executive, the: at Rome, i. 191, 192; in Australian constitution, i. 508, 513.

Executive Council, the: in the Orange Free State, i. 438, 457, 459, 464; in the South African Republic, i. 445, 457, 459.

Family, its influence on Roman law, ii. 367; as religious organism, ii. 211.

Family succession: effect of, as a centripetal force, i. 303-307.

Fathers of the Church, ii. 244, 484.

Fathers of the Republic, i. 365, 381.

Fear, as ground of political obedience, ii. 1-5, 12-14, 20.

Federal courts: in the United States, i. 399, 419, 420; in Australia, i. 508-512.

_Federalist, The_, i. 360, 366-374.

Federation: types of, i. 469, 470, 489-492; sovereignty in, ii. 104-108; of British empire, i. 245-249, 553.

Fetwa, ii. 241.

Finance: in Roman and Indian empires, i. 37-42; in Australian constitution, i. 478, 522.

Finland, autonomy of, i. 288.

Flag, the, in the United States, i. 298, 418.

Flexible and rigid constitutions, i. 145-252; is the Transvaal constitution flexible? i. 449-451.

Folk Mot, i. 161, 162, 316, 353, 434; ii. 297.

_Formulae_, ii. 334.

France: constitution of the republic, i. 152, 202; legal history, ii. 375-377; divorce in, ii. 450, 451.

Franks, the, ii. 22.

Free State. _See_ Orange Free State.

Free Trade, ii. 26.

French law, codification of, i. 107.

French Republic, constitution of, i. 152, 214.

Frontiers, of Roman and Indian empires, i. 14-20.

Fundamental statutes, i. 206.

Fusion: of races in Roman empire, i. 62, 74; of Roman and provincial law, i. 96-98.

Future life, belief in, ii. 459.

Fylki, in Norway, i. 353.

Gaius, ii. 142, 145, 153, 260, 264, 296, 304, 354, 390, 392, 512.

Gardiner, S. R., i. 200.

_Gens_, meaning of, ii. 131.

Gentili, Alberico, ii. 167, 507.

German empire, constitution of, i. 196, 204, 215, 470; divorce in, ii. 450, 451.

German law, codification of, i. 108; history of, ii. 375-377.

Ghosts, legal ejectment of, in Iceland, i. 345, 346.

Gierke, Prof. Otto, ii. 85, 159.

Gilman, President, i. 382.

Glanvill, ii. 261, 332.

Goethe, quoted, ii. 160.

Goði, or priest-chieftain, in Iceland, i. 317-322, 325, 326, 332, 344, 352-354.

Gortyn, laws of, i. 89.

Grace, opposed to law, ii. 209.

Graduation, at El Azhar, ii. 225.

Grammar, in Musulman university, ii. 224, 225.

Gratian, ii. 157.

Greece, constitution of, i. 209.

Greek Civilization, spread of, in ancient world, i. 2.

Greek law, i. 89, 102; ii. 145, 202.

Greenland, colonized from Iceland, i. 333.

Grondwet, the: of the South African Republic, i. 442-447; was it a rigid constitution? i. 449-455.

Grotius, ii. 167, 168.

Group, defined, i. 257; parliamentary, i. 541.

Growth, phenomena of, ii. 114.

Grueber, Dr. E., ii. 506.

Gunnlaug’s Saga, i. 348, 349.

Habit, as governing action, ii. 14, 45, 65.

Haiti, constitution of, i. 211.

Hamilton, Alexander, chief writer in _The Federalist_, i. 360, 365, 366, 369-381, 427; ii. 105.

Hand power, in Roman marriage law, ii. 387-391.

Hannen, Lord, ii. 465.

Harrison, Frederic, on Austin, ii. 111.

Harvard University, ii. 230.

Hastings, Warren, i. 29, 77, 459.

Hatts, promulgated by the Sultan, ii. 253.

Hawaiian Islands, i. 2, 292, 417.

Hegel, ii. 108, 177.

Henry II, influence on English law, ii. 358-360.

Heraclitus, ii. 124.

Herodotus, ii. 120.

High Court: in India, i. 46; in Australia, i. 508-512.

Hindu Law, administered in India, i. 113-119.

Hindustani language, i. 72.

Historical school of jurisprudence, ii. 184-186.

Hobbes, criticized, ii. 85-88, 106, 162.

Holland, constitution of, i. 210, 214; divorce in, ii. 450, 451.

Holland, Dr., ii. 173.

Holmes, Chief Justice, ii. 192, 264.

Home Rule, for Ireland, i. 207.

Homer, i. 160, 318; ii. 47, 124, 212, 521.

Homicide, penalty for, in Iceland, i. 321, 344.

Horace, i. 66; quoted, ii. 350.

House of Representatives, the: its position in the United States, i. 368, 371, 375, 377, 401, 421; in the Australian Commonwealth, i. 504-507, 514-521, 537.

Hungary, constitution of, i. 155.

Husband and wife, identity of, in English law, ii. 424, 425. _See also_ Marriage.

Hustings, i. 316.

Iceland, i. 312-358; discovery and settlement, 312-316; beginnings of a polity, 316; the priest-chieftain, 317-320; first political constitution, 320-322; organization and powers of the Althing, 322-327; the speaker of the law, 327; Thingvellir, 329-332; character of the republic, 332, 333; character and growth of the law, 334-341; sources of our knowledge of the law, 341-343; illustrations of the law, 343-349; introduction of Christianity, 349-351; reflections on early history, 353-356; fall of the republic, 356; union with Denmark, 357; independence, i. 284; ii. 26.

Ihering, Rudolf von, ii. 186, 516.

Ilbert, Sir C. P., i. 29, 67, 86, 118; ii. 167, 322, 326.

_Imperium_, of praetor, ii. 277.

Inaugural lecture, ii. 475-503.

India: British conquest, i. 5-8; military character of empire, 13, 14; natural frontiers, 16-18; roads and railways, 21, 22; internal peace, 24, 25; character of administration, 28-34; protected states, 37; fiscal system, 37-42; native army, 45; native civil service, 46; private civil rights, 50; legislative councils, 51; religious usages, 56; education, 57; influence of climate, 63; influence of colour, 64-67; influence of religion, 67-69; influence of language and literature, 72-74; no fusion of races, 75; little influence on England, 76-78; probable future of British power, 82-84; legal systems found by the English, 113-116; English continued existing systems of law, 116-120; ii. 133; codification, i. 121-124; merits and working of the codes, 127-131; probable future of legal development, 138-141; as governed by Englishmen, ii. 16.

Indian tribes, in United States, i. 377, 408; ii. 16.

Individualism, ii. 36, 463.

Indolence, as ground of political obedience, ii. 6-9, 14.

International law: sovereignty in, ii. 101-104; natural law in, ii. 167-169.

Interpretation of rigid constitutions, i. 228-234.

Inter-state commission, i. 509.

Ireland, law of, i. 111; political forces in, i. 264, 285; little influence on English law, ii. 369; no divorce in, ii. 438.

Irish, in Iceland, i. 313, 316.

Irrigation, in Australia, i. 474, 478, 522, 545.

Isidore of Seville, ii. 157.

Islam, law of, i. 85, 87; administered in India, i. 113-119; characteristics of, ii. 218, 233-241.

Italy, constitution of, i. 155, 196, 202, 208.

_Iudex_, in Roman law, ii. 257.

_Ius_, contrasted with _lex_, i. 149; ii. 294.

_Ius gentium_, in Roman law, i. 97; ii. 128-135, 144-148, 348.

_Ius honorarium_, ii. 133.

_Ius non scriptum_, i. 148.

_Ius respondendi_, in Roman law, ii. 257-260.

Jackson, President, i. 395, 406, 411.

Japan, constitution of, i. 197, 253; ii. 70; divorce in, ii. 444.

Jay, Chief Justice, i. 360, 365.

Jefferson, i. 363, 365, 366, 373; ii. 98.

Jewish law, ii. 214, 242; of divorce, ii. 437.

Joint stock companies, law of, ii. 336, 366, 494.

Jointure, in lieu of dower, ii. 427.

Judges, the, as makers of law, ii. 269-281.

Judicature Act, ii. 479, 489, 517.

Judiciary, the: its position in the United States, i. 399, 419, 420; in the Orange Free State, 439; in the South African Republic, 446, 453, 462; in the Australian Commonwealth, 508-512; as makers of law, ii. 269-281.

Julian, jurist, i. 219; ii. 76, 205, 249, 288.

Julius Caesar, i. 176.

Jurists, as makers of law, ii. 155, 255-261; difference between the action of Roman and English, 261-269, 496.

Justinian, his codification of Roman law, ii. 355-357; change in law of divorce, ii. 408.

Kadi, Muhammadan judge, ii. 226, 239, 253.

Kant, ii. 108, 177.

Kent, Chancellor, ii. 265.

Khalifs, the, ii. 62, 240, 241.

King’s Proctor, ii. 437.

Kissing, as test of prohibited degrees, ii. 411.

Koran, the, ii. 59, 223, 226, 231, 235, 237, 253.

Kotzé, J. G., i. 441.

Kovalevsky, ii. 426.

Kruger, President, i. 465.

Labeo, ii. 138, 260, 264.

Labour Party, in the United States, i. 418; in Australia, i. 541.

_Laissez-faire_, ii. 28, 36.

Land, its influence on English law, ii. 368.

Land Revenue, in Roman and Indian empires, i. 37-39.

Landesgemeinde, i. 160, 434.

Langdell, Prof. C. C., i. 112; ii. 512.

Language, effect of, in Roman and Indian empires, i. 70-74.

Laos States, in Siam, i. 276.

Law Reports, compared with Roman treatises, ii. 266-269.

Law Speaker, in Iceland, i. 327-329, 330, 332, 337.

Lawyers, power of, in America, i. 405.

Legal development at Rome and in England, ii. 338-380: five chief epochs of legal change at Rome, 341-343; five epochs of legal change in England, 343-345; outline of legal changes at Rome, 345-358; outline of legal changes in England, 358-366; differences between development of Roman and English law, 367-375; observations on France and Germany, 375-377; private law least affected, 377-380.

Legal profession, as a maker of law, ii. 269-281.

Legislation. _See_ Methods of law-making.

Legislative Councils, in India, i. 51.

Legitimation, of children born before marriage, ii. 414.

Leibnitz, on Mogul empire, i. 10.

Leo, Emperor-Philosopher: _Basilica_ of, ii. 341, 378; abolishes divorce by consent, ii. 408, 413.

_Lex_, meaning of, ii. 294-296, 301, 302.

Libel, punishment for, in Iceland, i. 345.

Liberty, love of, ii. 24-26.

Liberty of the press, in South African republics, i. 440, 443.

Limitation of sovereignty, ii. 71.

Literature, effect of, in Roman and Indian empires, i. 70-73.

Lithuania, Roman law in, i. 110.

Littleton, ii. 261.

Livy, quoted, ii. 131, 255, 347.

Liwan, or hall of prayer, ii. 223.

Locke, ii. 163.

Lögberg, or Hill of Laws, in Iceland, i. 330.

Lögsögumaðr, or Law Speaker, in Iceland, i. 327-329, 330, 332, 337.

Lords, House of, ii. 322-325, 329.

Louis Napoleon, i. 213; ii. 26, 65.

Lyall, Sir A. C., i. 37, 55.

Macaulay, codification of Indian law by, i. 121, 127; ii. 290.

Madison, President, i. 360, 365, 366, 375; ii. 105.

Magistrates, as makers of law, ii. 269-281.

Maine, Sir H. S., i. 167; ii. 111, 140, 146, 215, 495, 506, 524.

Maitland, Prof., ii. 322, 420, 421, 425, 426, 434.

Manipur, i. 25.

Mansfield, Lord, ii. 133, 181, 199, 266, 276, 279, 477, 478.

Mantle children, ii. 415.

_Manus_, in Roman marriage, ii. 387-390.

Maoris, the, in New Zealand, i. 293, 550.

Marcian, ii. 120, 142, 158.

Marquardt, i. 32.

Marriage and divorce under Roman and English law, ii. 381-474: diversity of law of marriage in different countries, 381-383; character of marriage in early law, 383-385; early form of Roman marriage law, 386-389; change to later system, 389-392; personal relations of consorts, 392-395; pecuniary relations of consorts, 395-400; Roman conception of marriage, 400, 401; divorce in Roman law, 402-406; influence of Christianity on divorce, 406-409; encouragement of marriage, 409; discouragement of second marriage, 410; prohibited degrees, 410-412; natural marriage, 412; concubinage, 413-415; marriage under canon law, 416-420; English law of marriage, 420-424; property relations of consorts, 424-427; gradual amendment of English matrimonial law, 427-433; divorce under canon law, 433-435; later law of divorce in England and Scotland, 435-438; divorce laws of United States, 439-443; statistics of divorce in America, 443; divorce in modern European countries, 450-453; comparison of change at Rome with modern world, 453-457; tendencies affecting permanence of marriage tie, 457-464; influence of church and law, 464; does English law need amendment? 465-469; changes in theory and sentiment regarding marriage, 469-474.

Martial, quoted, ii. 405.

Martyrs, the Christian, ii. 24.

Mastery theory of marriage, ii. 431-433.

Maurer, Konrad, writer on Iceland, i. 319.

Mellish, Lord Justice, ii. 199.

_Mensa et torus_, divorce from, ii. 435, 436.

Merriam, C. E., jun., ii. 111.

Merwing kings, ii. 22.

Metaphysical basis of law, ii. 169, 174-178.

Methods of law-making in Rome and in England, ii. 247-337: law-making authorities in general, 248-255; jurists as makers of law, 255-261; difference between action of Roman and English jurists, 261-269; magistrates and judges as makers of law, 269-281; praetorian edicts compared with English case law, 281-293; direct legislation at Rome (_a_) the popular assembly, 293-303; (_b_) the senate, 303-308; (_c_) the emperor, 308-321; direct legislation in England—Parliament, 321-331; reflections suggested by the history of legislation, 331-337.

Methods of legal science, ii. 172-208: metaphysical or _a priori_, 174-178; analytic, 178-184; historical, 184-186; comparative, 186-190; value of each, 190-192; utility for legal study, 192-197.

Mexico, constitution of, i. 198, 204.

Military Character of Roman and Indian empires, i. 13, 14.

Milton, quoted, ii. 36, 363; on divorce, ii. 436.

Mitteis, Dr. L., i. 100, 102; ii. 147.

Modestinus, ii. 258, 354, 400, 483.

Mogul emperors, i. 6, 10; ii. 17, 62.

Mommsen, ii. 395, 516.

Money bills, i. 158, 173, 518.

Monroe Doctrine, the, i. 414, 481.

Montenegro, an autocracy, i. 155, 251, 253.

Montesquieu, i. 145, 379.

Mormons, ii. 384.

Mosaic law, ii. 217, 242.

Mosque of El Azhar, ii. 219-231.

Mufti, ii. 226, 253.

Muhammadan law, administered in India, i. 113-119; characteristics of, ii. 218, 233-241.

Muirhead, ii. 147, 257.

Municipalities, in India, i. 33.

Musulman law, administered in India, i. 113-119; characteristics of, ii. 218, 233-241.

Napoleon, codes of, i. 107.

Natal, i. 433, 434.

National sentiment, as a political force, i. 282-286; ii. 34.

Nations, in academical usage, ii. 227, 298.

Natural marriage, ii. 412, 417.

Nature, Law of, ii. 112-171: origin of idea of Nature as a ruling force, 112-120; origin of conception of Natural Law, 120-128; Roman _ius gentium_ or Law of the Nations, 128-135; connexion of Law of Nature with Law of the Nations, 135-144; relation of Law of Nature to general customary law, 144-148; meaning attached by Roman jurists to Nature, 148-157; Law of Nature in middle ages, 157-161; in modern times, 161-171.

_Naturrecht_, ii. 169, 173-178.

Negotiable instruments, law of, ii. 335, 365; in Germany, ii. 377.

Negro question in United States, i. 293, 363, 374, 393, 408, 416, 426.

Nettleship, Prof. H., ii. 131.

Newman, W. L., ii. 144.

New Testament, law in, ii. 79, 209, 216, 243, 434, 482.

New Zealand, outside Australian Commonwealth, i. 548-550.

Non-regulation provinces, in India, i. 35.

Norman feudalism, influence on British constitution, i. 192.

Norway, constitution of, i. 209; relations with Sweden, i. 284; settlement of Iceland from, i. 314-316; subjection of Iceland to, 356, 357; divorce in, ii. 450, 451.

_Novels_ of Justinian, ii. 320.

Nuncomar, execution of, i. 120.

Obedience, political, ii. 1-48: theories regarding, 1-6; grounds of, 6-26; future of, 26-45; theory of, applied to jurisprudence, 44-48.

_Obiter dicta_, ii. 268, 282.

Ohio, divorce in, ii. 446.

Old Age Pensions, specifically mentioned in Australian constitution, i. 478, 479, 494, 536.

Olympian games, as unifying influence, i. 280.

Oppressed nationalities, ii. 34.

Orange Free State, i. 430-467: early history, 432-436; constitution of the republic, 436-441; observations on its working, 455-463; recent history, 463, 466.

Orders in Council, i. 172; ii. 270.

Organs of law-making, ii. 249-254.

Orthodox Church, in Russia, i. 279.

Outlawry, ii. 213.

Oxford, ii. 219, 227, 230, 231, 523-525.

Papinian, ii. 205, 266, 275, 302, 314, 354, 483.

Parke, Baron, i. 340.

Parliament, as source of law in England, i. 152; ii. 321-331; sovereignty of, i. 152; ii. 57, 90; marriages dissolved by, ii. 436.

Parsis, in Parliament, i. 50.

Partnership theory of marriage, ii. 432.

Party organization, in the United States, i. 370, 374, 393, 396, 413, 417, 420, 541; in Australia, i. 539-541.

Patagonia, i. 249.

_Patria Potestas_, i. 101; ii. 198, 215, 482.

Paul, jurist, ii. 354, 393.

Penal Code, in India, i. 121, 127; ii. 290, 334.

Pension system, in United States, i. 376, 422.

People, the, as a source of law, ii. 249-251; at Rome, 293-303.

_Peregrini_, aliens, in Roman law, i. 90, 93, 134; ii. 129, 348.

Persia, i. 12; ii. 104, 234, 236.

Philippine Islands, occupation of, by United States, i. 2, 34, 79, 417; ii. 35.

Philosophy of law, ii. 169, 173-178, 193-196.

_Pilgrim’s Progress, The_, ii. 210.

Pitso, of Kafirs, i. 160, 316; ii. 297.

Plato, i. 384, 396; ii. 1, 125.

Plebiscite, amendment of constitution by, i. 153, 213.

Pliny, the elder, ii. 150.

Plutarch, ii. 411.

Poland, partition of, i. 284; Roman law in, i. 109, 110.

_Political Science Quarterly, The_, ii. 518.

Pollock, Sir F., ii. 109, 111, 128, 166, 322, 415, 420, 421, 425, 426, 434.

Polyandry, in ancient times, ii. 383.

Polybius, i. 9, 145.

Polygamy, among Eastern peoples, i. 140; ii. 383, 384, 469.

_Pontifices_, oversight over marriage, ii. 419.

Pope, the, as sovereign, ii. 80; jurisdiction over marriage, ii. 419, 434.

Popular assembly, as source of law at Rome, i. 152; ii. 293-303.

Population, growth of, ii. 38.

Portuguese empire, i. 55, 294.

Possession, in Roman and English law, ii. 192, 195, 482.

Post-graduate studies, ii. 522.

Praetorian edict compared with case law, ii. 281-293.

Praetorian prefect, ii. 314, 315.

Praetors, the, ii. 133, 187, 201, 274-278, 282-285, 291-293, 348.

Pre-contract, impediment to marriage, ii. 422, 435.

President, the: his position in the constitution of the United States, i. 367, 372, 373, 377, 399, 412, 419; ii. 55; in the Orange Free State, i. 438, 440, 457, 460, 463; in the South African Republic, i. 444, 445, 457, 460, 465.

Press, influence of the, i. 184, 400, 418; ii. 37.

Priests, in Iceland, i. 317.

Primary assemblies, i. 160, 316, 434; ii. 297.

Privy Council, appeal to, i. 113, 117, 125, 172, 276; ii. 365; under Australian constitution, i. 510-512.

Procedure Codes, in India, i. 122, 127.

Procedure, law made through, ii. 280.

Procopius, i. 60.

Profession of law, at Rome and in England, ii. 263.

Prohibited degrees of marriage, ii. 410-412, 420.

Protected states, in Roman and Indian empires, i. 5, 36, 37; ii. 102.

Protective tariff, in the United States, i. 393, 411; in Australia, i. 539.

Protectorate, the, in England, i. 163, 176, 200; ii. 60, 68.

Protestantism, ii. 15, 32.

Province, meaning of the word, i. 36; in Canada, i. 492, 493.

Provincial government, under Roman empire, i. 27, 30, 32, 91.

Prussia, constitution of, i. 202; ii. 25.

Public schools, ii. 21.

Puerto Rico, acquisition of, by United States, i. 233, 417.

Puritanism of New England, i. 363, 393.

_Quaestiones perpetuae_, ii. 334.

Queensland, i. 265.

Quorum, for amendment of constitution, i. 210.

Rabbis, the, ii. 217.

Racial feeling, as political force, i. 265.

Railways, in India, i. 14, 21; in United States, i. 416; in Australian constitution, i. 522, 548.

Rajputs, i. 64, 65.

_Ratio decidendi_, ii. 282.

Reason, as ground of political obedience, ii. 1-5, 12-14; of the Stoics, ii. 126.

Referendum, the, i. 152, 212, 417, 475, 524; ii. 71.

Reformation, influence on law, ii. 361; on marriage law, ii. 418, 435, 450.

Regular marriage, ii. 417.

Religion, relations of law to, ii. 209-246: apparent antagonism, 209, 210; close connexion in early times, 210-215; differences between different peoples, 215; Jews in Roman times, 216; primitive Christianity, 217; illustrations from El Azhar, 219-229; mediaeval universities, 229-233; arrested development of Musulman universities, 233-242; differences in Christianity, 242-246.

Religious feeling: in ancient and modern world, i. 52-57; effect of, in Roman and Indian empires, i. 67-70; no obstacle to spread of Roman law, i. 103; as political force, i. 266, 277-279, 283, 406.

Reports, in English law, ii. 266-268.

Representative Government: no place in the ancient world, i. 32; or in India, i. 50.

Rescripts of Roman emperors, ii. 311.

Resolutions (_besluite_) of Transvaal Volksraad, i. 451-455.

_Responsa_, in Roman law, ii. 257, 262.

Restitution of conjugal rights, ii. 431.

Rhodesia, Southern, ii. 171.

Rights of Man, i. 287; ii. 163.

Rigid and flexible constitutions, i. 145-252.

Ritchie, D. G., ii. 111, 128.

Rivers, importance of, in Australia, i. 478, 522.

_Riwaks_, at El Azhar, ii. 227, 228.

Road builders, Roman and English, i. 21-23.

Romano-Germanic empire, i. 106, 196, 267, 283, 301, 530; ii. 57, 80-82, 162, 375.

Rome: Roman empire compared with Indian empire, i. 6-77; diffusion of Roman law by conquest, i. 88-99; establishment of one law for the empire, i. 99-104; extension of Roman law after fall of western empire, i. 104-110; Roman law compared with Indian law, i. 133-138; present position of Roman and English law, i. 142-144; constitution of, i. 145, 146, 155-158, 164, 169-171, 174, 181, 189-191; political religion, i. 277; ii. 23; few national revolts, i. 282; no race prejudices, i. 291, 294; empire established by conquest, i. 306; succession of emperors, ii. 67; Roman views of sovereignty, ii. 74-79; Roman conception of _ius gentium_, ii. 128-148; meaning of Nature in Roman jurists, ii. 148-157; philosophical treatment of Roman law, ii. 197-208; jurists as makers of law, ii. 255-268; magistrates as makers of law, ii. 269-293; legislation by popular assembly, ii. 293-303; legislation by senate, ii. 303-308; legislation by emperor, ii. 308-321; chief epochs of legal change, ii. 341-343; outline of legal changes, ii. 345-358; legal development compared with England, ii. 367-374; early form of marriage law, ii. 386-389; change from earlier to later system, ii. 389-392; later marriage law, ii. 392.

Romilly, i. 121; ii. 479.

Rousseau, criticized, ii. 2-5, 163.

Rules, by delegated authority, ii. 269.

Russia: extension of dominion by, i. 2, 8, 58, 79; adoption of Roman law by, i. 86, 109; fundamental laws of the empire, i. 160; influence of Orthodox Church, i. 279; sovereignty in, ii. 52, 253; marital right of chastisement, ii. 426; divorce, ii. 451.

Sacrament of marriage, ii. 413, 417, 434.

Sagas, i. 341, 351.

Sale of wife by husband, ii. 387, 426.

Sallust, ii. 131.

Salt tax, in Roman and Indian empires, i. 40.

Sand River Convention, i. 433.

Sassanid kings of Persia, i. 12, 20, 53, 283; ii. 384.

Savigny, i. 132; ii. 203, 204, 495, 501, 516.

Scaevola, Q. Mucius, i. 341; ii. 136, 264.

Scandinavia, extension of Roman law to, i. 110.

Scientific frontiers, i. 18-20.

Scotland: has adopted Roman law, i. 86, 107; national life, i. 288; little influence on English law, ii. 370; marriage law, ii. 423; law of divorce, ii. 435, 438, 451.

Scribes, the, ii. 216.

Second marriage, discouraged by early Christianity, ii. 410.

Second Volksraad, in Transvaal, i. 447.

Self-help, ii. 36.

Senate, the: its position in Rome, i. 181, 182; ii. 75; in the United States, i. 368, 375, 401, 421, 504, 518, 521; in Australian Commonwealth, i. 504-507, 514-521, 537; as source of law at Rome, ii. 303-308.

_Senatus consulta_, ii. 306-309.

Seneca, quoted, ii. 405.

Separate property, of wife, ii. 428-430.

Separation of husband and wife, ii. 436.

Septennial Act, ii. 91.

Servia, constitution of, i. 210, 211.

Settlement, prenuptial, ii. 428.

Sheik ul Islam, the, ii. 58, 221, 241, 313.

Siam, i. 19, 276.

Sidgwick, H., ii. 111.

Sigismund, laws of, ii. 356.

Signore, of Italian city, i. 170; ii. 47.

Sikkim, i. 25.

Slavery: in Iceland, i. 343; in the United States, i. 224, 363, 374, 393, 409, 416, 426; forbidden by Transvaal constitution, ii. 443; in Roman law, ii. 145, 198.

Slavonic law, i. 109.

Smith, Goldwin, i. 200; ii. 524.

Smith, John William, ii. 200, 267, 288.

Smith, Sir Thomas, ii. 109.

Social contract, ii. 2-5, 163.

Social Democrats, ii. 170.

Socrates, ii. 124.

Sonderbund, war of the, i. 283, 477.

Sophocles, quoted, i. 252; ii. 123.

South Africa, constitution of the two Dutch Republics, i. 155, 198, 430-467; ii. 103.

South American republics, i. 198, 211, 249, 253; ii. 48, 60, 66-68.

South Carolina, no divorce, ii. 440.

Sovereignty, ii. 49-111: confusions regarding the term, 49-51; legal or _de iure_ sovereignty, 51-59; practical or _de facto_ sovereignty, 59-64; relations of legal to practical sovereignty, 64-73; Roman and mediaeval views, 73-82; modern theories, 82-94; questions liable to be confounded, 94-101; in international relations, 101-104; in a federation, 104-108; recent discussions, 110, 111.

Spain, constitution of, i. 208; ii. 58.

Spanish Empire, in America, i. 6, 8, 41, 55, 58, 294, 426.

Spinoza, ii. 162.

Spoils system, in United States, i. 374, 378, 417.

_Sponsalia_, ii. 393.

St. Augustine, ii. 159.

St. Chrysostom, quoted, ii. 158.

St. German, Christopher, ii. 165.

St. Leonards, Lord, ii. 136, 199, 260.

St. Paul, quoted, i. 69; ii. 79, 158, 209.

St. Peter, quoted, ii. 79.

St. Thomas Aquinas, ii. 80, 158.

Statistics of divorce in America, ii. 443-449.

Statute _de donis_, ii. 360.

Statute of Frauds, ii. 363.

Statute of Uses, i. 113; ii. 289, 361.

Statute of Wills, ii. 361.

Statute _quia emptores_, ii. 360, 368.

Stephen, Sir J. F., codification of Indian law by, i. 129.

Stephen, Leslie, ii. 182.

Stoics, the, ii. 126.

Story, Justice, ii. 265.

Stowell, Lord, ii. 266, 417, 423.

Stubbs, Bishop, ii. 43.

Suetonius, i. 53; ii. 304, 306, 384, 404.

Sulla, i. 163.

Sultan of Turkey, ii. 58, 62.

Suzerainty of England over Transvaal, i. 464.

Swiss Confederation, constitution of, i. 152, 231, 298, 470, 501, 503, 525; divorce in, ii. 450, 451.

Sympathy, as ground of political obedience, ii. 10.

Tacitus, quoted, i. 313, 318; ii. 384, 411.

Tacking of bills, prohibited in Australian constitution, i. 519.

Teaching of law: at Rome, ii. 264; at Oxford, ii. 473-525.

Ten Commandments, ii. 46.

Territorial expansion, capacity of constitutions for, i. 193-196.

Teutonic law, i. 110, 342; ii. 189, 375, 419.

Theal, Dr., i. 432, 435.

Theodorich, _edictum_ of, ii. 356.

Theodosius II, code of, i. 104; ii. 148, 354.

Theology, identified with law, ii. 211-219, 236.

Thing, or assembly, in Iceland, i. 316-322; ii. 297.

Thingvellir, in Iceland, i. 322, 329-331.

Thucydides, ii. 60.

Thuggi, i. 25.

Thule, i. 313.

Tocqueville, Alexis de: his _Democracy in America_, i. 381-429; his insufficient knowledge of England, 385; his preoccupation with France, 387; his description of the United States, 397-415; examination of his views, 415-425.

Torts, law of, in India, i. 116, 118, 123.

Trade, as a consolidating influence, i. 263, 413, 479.

Trade Unions, in America, ii. 30, 36.

Trajan, i. 10, 30; ii. 311.

Transvaal, the, i. 198, 430-467: constitution of the South African Republic, 441-448; observations, 449; is it a rigid or a flexible constitution? 449-455; observations on its working, 455-464; recent history, 464-467.

Transylvania, i. 291.

Trebatius, ii. 289.

Trent, Council of, ii. 418.

Tribonian, ii. 76, 265, 355-357.

Tribute, in Roman, but not in Indian empire, i. 41, 42.

Trusts, commercial, i. 240; ii. 30.

Trusts, in law, i. 124; ii. 289.

Tunis, ii. 103.

Twelve Tables, the, i. 181, 338; ii. 301, 341, 345-347, 350.

Tyrant, in Greece, ii. 47, 90, 98.

Ukase, ii. 311.

Ulfljot, founder of the Althing in Iceland, i. 322, 341.

Ulpian, quoted, i. 158; ii. 143, 144, 150, 153, 205, 275, 354, 381.

Ulster custom, ii. 253.

United States: law of, i. 113; constitution of, i. 147, 197, 203, 209, 211, 212, 214, 216, 220, 222, 224, 226, 231, 235, 239, 274, 285, 289, 293, 295-298; constitution as seen in the past, i. 359-429; constitution as seen in _The Federalist_, 361-366; predictions of the opponents of the constitution, 366-369; views of the supporters of the constitution, 369-374; criticism of both opinions, 374-381; the _Democracy in America_ of Tocqueville 381-392; his views and impressions, 392-415; examination of them, 415-425; subsequent history, 427; constitution compared with South African republics, i. 441, 459, 460; compared with Australian Commonwealth, i. 476, 477, 487, 492, 495, 496, 499, 502, 504-507, 512, 516, 518, 527-530, 533; boss system, trade unions, trusts, ii. 30; growth of population and wealth, 38; divided sovereignty, 53, 55, 58, 93, 104-108; legislation by Congress, 323-326; marriage law, 382; varying laws of divorce, ii. 439-443; statistics of divorce, 443-449.

Universities, Musulman and mediaeval, ii. 229-233; in India, i. 57, 73; in Germany, i. 280; ii. 219; in America, i. 417.

_Urbs_ became _orbis_, i. 133; ii. 342.

Utility, ii. 127, 179, 180.

Vacarius, at Oxford, ii. 476, 507.

Valedictory lecture, ii. 504-525.

Vangerow, Dr. K. A. von, ii. 204, 486, 516.

Verres, i. 27, 29, 94.

Veto: none in South African republics, i. 440, 456; under Australian constitution, i. 526, 537; of crown in parliament, ii. 77, 302.

Vigfússon, Guðbrand, i. 330.

Vikingry, i. 321.

Village Councils, in India, i. 33.

Villiers, Melius de, i. 436.

Vinerian professorship at Oxford, ii. 265, 478, 491, 506.

_Vinculum matrimonii_, divorce from, ii. 434, 436.

Virgil, i. 72; quoted, i. 315; ii. 78, 146.

Voigt, Moriz, ii. 128.

Volksraad, the: of the original Dutch emigrants, i. 434; of the Orange Free State, i. 436-438; of the South African Republic, i. 443-445; the Second Volksraad, i. 447; predominance of the Volksraad in the constitution, i. 456, 461.

Wages, rise of, ii. 38.

_Wakf_ (= endowments), at El Azhar, i. 114, 229.

Wapentake, in Iceland, i. 347.

Washington city, i. 411.

Washington, George, i. 361, 362, 365, 539.

West Indies, under English law, i. 86.

Whig party, in United States, i. 414, 420.

Wife. _See_ Marriage.

Will, as a political force, ii. 15.

Willcox, W. F., ii. 444, 449.

Wills, in Musulman law, ii. 221; Hindu law of, i. 125.

Women’s suffrage, in Australia, i. 507, 536, 544.

Wordsworth, quoted, ii. 119.

Written constitutions, i. 148.

Xenophon, quoted, ii. 125.

Yelverton, ii. 165.

Zollverein, i. 263, 275.

THE END

OXFORD PRINTED AT THE CLARENDON PRESS BY HORACE HART, M.A. PRINTER TO THE UNIVERSITY

Transcriber’s Note

Lapses in punctuation in the Index have been addressed with no further notice here.

Any references in the footnotes to other notes have been changed to reference the re-sequenced note numbers.

The reference at 85.19 to Romans 8.1, regarding the basis of civil law in the Law of God, should be more plausibly made to Romans 13.1.

Other errors deemed most likely to be the printer’s have been corrected, and are noted here. The references are to the page and line in the original.

13.2 should be supported [r]ather than Added. 54.32 interrupted, or rather overrid[d]en, Inserted. 232.31 during the great age in Bagdad[,] in Spain Added. 276.32 Ascon. _in Cic. Pro Cornelio_, 58.[)] Added. 339.6 except,[ ]perhaps, Added. 376.19 imper[ /i]al cities, Restored. 401.12 no liability is incurred[.] Added. 439.14 A statute of that year,[ ]amended Added.