home | authors | books | about

Home -> Henry Sumner Maine, Sir -> Ancient Law -> CHAPTER IX continue

Ancient Law - CHAPTER IX continue






6. CHAPTER V continue


8. CHAPTER VI continue



11. CHAPTER VIII continue


13. CHAPTER IX continue


It will be remarked that unless
there were consideration for the Pact, it would
continue nude so far as the new jurisprudence
was concerned ; in order to give it effect, it would
be necessary to convert it by a stipulation into a
Verbal Contract.

The extreme importance of this history of
Contract, as a safeguard against almost innumer-
able delusions, must be my justification for 'dis-
cussing it at so considerable a length. It gives
a complete account of the march of ideas from
one great landmark of jurisprudence to another.
We begin with the Nexum, in which a Contract
and a Conveyance are blended, and in which the
formalities which accompany the agreement are
even more important than the agreement itself.
From the Nexum we pass to the Stipulation,
which is a simplified form of the older ceremonial.
The Literal Contract comes next, and here all
formalities are waived, if proof of the agreement
can be supplied from the rigid observances of a
Roman household. In the Real Contract a moral
duty is for the first time recognised, and persons
who have joined or acquiesced in the partial
performance of an engagement are forbidden to
repudiate it on account of defects in form. Lastly,
the Consensual Contracts emerge, in which the
mental attitude of the contractors is solely
regarded, and external circumstances have no
title to notice except as evidence of the inward
undertaking. It is of course uncertain how far
this progress of Roman ideas from a gross to a


refined conception exemplifies the necessary pro-
gress of human thought on the subject of Contract.
The Contract-law of all other ancient societies
but the Roman is either too scanty to furnish
information, or else is entirely lost ; and modern
jurisprudence is so thoroughly leavened with the
Roman notions that it furnishes us with no
contrasts or parallels from which instruction
can be gleaned. From the absence, however, of
everything violent, marvellous, or unintelligible
in ike changes I have described, it may be reason-
ably believed that the history of Ancient Roman
Contracts is, up to a certain point, typical of the
history of this class of legal conceptions in other
ancient societies. But it is only up to a certain
point that the progress of Roman law can be taken
to represent the progress of other systems of
jurisprudence. The theory of Natural law is
exclusively Roman. The notion of the vinculum
juris, so far as my knowledge extends, is exclu-
sively Roman. The many peculiarities of the
mature Roman Law of Contract and Delict which
are traceable to these two ideas, whether singly
or in combination, are therefore among the ex-
clusive products of one particular society. These
later legal conceptions are important, not because
they typify the necessary results of advancing
thought under all conditions, but because they
have exercised perfectly enormous influence on
the intellectual diathesis of the modern world.,

I know nothing more wonderful than the
variety of sciences to which Roman law, Roman
Contract-law more particularly, has contributed
modes of thought, courses of reasoning, and a


technical language. Of the subjects which have
whetted the intellectual appetite of the moderns,
there is scarcely one, except Physics, which has
not been filtered through Roman jurisprudence.
The science of pure Metaphysics had, indeed,
rather a Greek than a Roman parentage, but
Politics, Moral Philosophy, and even Theology,
found in Roman law not only a vehicle of ex-
pression, but a nidus in which some of their pro-
foundest inquiries were nourished into maturity.
For the purpose of accounting for this phenomenon,
it is not absolutely necessary to discuss the mys-
terious relation between words and ideas, or to
explain how it is that the human mind has never
grappled with any subject of thought, unless
it has been provided beforehand with a proper
store of language and with an apparatus of
appropriate logical methods. It is enough to
remark, that, when the philosophical interests of
the Eastern and Western worlds were separated,
the founders of Western thought belonged to
a society which spoke Latin and reflected in
Latin. But in the Western provinces the only
language which retained sufficient precision for
philosophical purposes was the language of Roman
law, which by a singular fortune had preserved
nearly all the purity of the Augustan age, while
vernacular Latin was degenerating into a dialect
of portentous barbarism. And if Roman juris-
prudence supplied the only means of exactness
in speech, still more emphatically did it furnish
the only means of exactness, subtlety, or depth in
thought. For at least three centuries philosophy
and science were without a home in the West;


and though metaphysics and metaphysical theo-
logy were engrossing the mental energies of
multitudes of Roman subjects, the phraseology
employed in these ardent inquiries was exclusively
Greek, and their theatre was the Eastern half of
the Empire. Sometimes, indeed, the conclusions
of the Eastern disputants became so important
that 'every man's assent to them, or dissent from
them, had to be recorded, and then the West was
introduced to the results of Eastern controversy,
whicji it generally acquiesced in without interest
and without resistance. Meanwhile, one depart-
ment of inquiry, difficult enough for the most
laborious, deep enough for the most subtile,
delicate enough for the most refined, had never
lost its attractions for the educated classes of the
Western provinces. To the cultivated citizen of
Africa, of Spain, of Gaul, and of Northern Italy, it
was jurisprudence, and jurisprudence only, which
stood in the place of poetry and history, of philo-
sophy and science. So far then from there being
anything mysterious in the palpably legal com-
plexion of the earliest efforts of Western thought,
it would rather be astonishing if it had assumed
any other hue. I can only express my surprise
at thfi scantiness of the attention which has been
given to the difference between Western ideas
and Eastern, between Western theology and
Eastern, caused by the presence of a new ingre-
dient. It is precisely because the influence .of
jurisprudence begins to be powerful that the
foundation of Constantinople and the subsequent
separation of the Western empire from the Eastern
are epochs in philosophical history. But Con-.


tinental thinkers are doubtless less capable of
appreciating the importance of this crisis by the
very intimacy with which notions derived from
Roman law are mingled up with their everyday
ideas. Englishmen, on the other hand, are" blind
to it through the monstrous ignorance to which
they condemn themselves of the most plentiful
source of the stream of modern knowledge, ot the
one intellectual result of the Roman civilisation.
At the same time, an Englishman who will be at
the pains to familiarise himself with the classical
Roman law, is perhaps, from the very slightness
of the interest which his countrymen have hitherto
taken in the subject, a better judge than a French-
man or a German of the value of the assertions
I have ventured to make. Anybody who knows
what Roman jurisprudence is, as actually practised
by the Romans, and who will observe in what
characteristics the earliest Western theology and
philosophy differ from the phases of thought
which preceded them, may be safely left to pro-
nounce what was the new element which had
begun to pervade and govern speculation.

The part of Roman law which has had most
extensive influence on foreign subjects of inquiry
has been the law of Obligation, or, what comes
nearly to the same thing, of Contract and Delict.
The Romans themselves were not unaware of
the offices which the copious and malleable
terminology belonging to this part of their system
might be made to discharge, and this is proved by
their employment of the peculiar adjunct quasi
in such expressions as Quasi-Contract and Quasi-
Delict. " Quasi/ 1 so used, is exclusively a term


of classification. It has been usual with English
critics to identify the Quasi-Contracts with implied
contracts, but this is an error, for implied contracts
are true contracts, which quasi-contracts are not.
In implied contracts, acts and circumstances are
the symbols of the same ingredients which are
symbolised, in express contracts, by words ; and
whether a man employs one set of symbols or
the other must be a matter of indifference so
far as concerns the theory of agreement. But
a Quasi-Contract is not a contract at all. The
commonest sample of the class is the relation
subsisting between two persons, one of whom has
paid money to the other through mistake. The
law, consulting the interests of morality, imposes
an obligation on the receiver to refund, but the
very nature of the transaction indicates that it
is not a contract, inasmuch as the Convention, the
most essential ingredient of Contract, is wanting.
This word " quasi/' prefixed to a term of Roman
law, implies that the conception to which it serves
as an index is connected with the conception with
which the comparison is instituted by a strong
superficial analogy or resemblance. It does not
denote that the two conceptions are the same,
or that they belong to the same genus. On the
contrary, it negatives the notion of an identity
between them ; but it points out that they are
sufficiently similar for one to be classed as the
sequel to the other, and that the phraseolpgy
taken from one department of law may be trans-
ferred to the other, and employed without violent
straining in the statement of rules which would
otherwise be imperfectly expressed.



It has been shrewdly remarked, that the
confusion between Implied Contracts, which are
true contracts, and Quasi-Contracts, which are not
contracts at all, has much in common with the
famous error which attributed political rights and
duties to an Original Compact between the
governed and the governor. Long before this
theory had clothed itself in definite shape, the
phraseology of Roman contract-law had been
largely drawn upon to describe that reciprocity
of rights and duties which men had always qon-
ceived as existing between sovereigns and subjects.
While the world was full of maxims setting forth
with the utmost positiveness the claims of kings
to implicit obedience maxims which pretended
to have had their origin in the New Testament,
but which were really derived from indelible
recollections of the Caesarian despotism the con-
sciousness of correlative rights possessed by the
governed would have been entirely without the
means of expression if the Roman law of Obligation
had not supplied a language capable of shadowing
forth an idea which was as yet imperfectly de-
veloped. The antagonism between the privileges
of kings and their duties to their subjects was
never, I believe, lost sight of since Western his/tory
began, but it had interest for few except speculative
writers so long as feudalism continued in vigour,
for feudalism effectually controlled by express
customs the exorbitant theoretical pretensions of
most European sovereigns. It is notorious, how-
ever, that as soon as the decay of the Feudal
System had thrown the mediaeval constitutions
out of working order, and when the Reformation


had discredited the authority* of the Pope, the
doctrine of the divine right of Kings rose imme-
diately into an importance which had never before
attended it. The vogue which it obtained entailed
still more constant resort to the phraseology of
Roman law, and a controversy which had origin-
ally worn a theological aspect assumed more and
more the air of a legal disputation. A phenomenon
then appeared which has repeatedly shown itself
in the history of opinion. Just when the argument
for monarchical authority rounded itself into the
definite doctrine of Filmer, the phraseology,
borrowed from the Law of Contract, which had
been used in defence of the rights of subjects,
crystallised into the theory of an actual original
compact between king and people, a theory which,
first in English and afterwards, and more particu-
larly, in French hands, expanded into a compre-
hensive explanation of all the phenomena of
society and law. But the only real connection
between political and legal science had consisted
in the last giving to the first the benefit of its
peculiarly plastic terminology. The Roman juris-
prudence of Contract had performed for the
relation of sovereign and subject precisely the
same* service which, in a humbler sphere, it
rendered to the relation of persons bound together
by an obligation of " quasi-contract." It had
furnished a body of words and phrases which
approximated with sufficient accuracy to the
ideas which then were from time to time forming
on the subject of political obligation. The doctrine
of an Original Compact can never be put higher
than it is placed by Dr. Whewell, when he suggests


that, though unsound, " it may be a convenient
form for the expression of moral truths."

The extensive employment of legal language
on political subjects previously to the invention
of the Original Compact, and the powerful influence
which that assumption has exercised subsequently,
amply account for the plentifulness in political
science of words and conceptions, which were
the exclusive creation of Roman jurisprudence.
Of their plentifulness in Moral Philosophy a
rather different explanation must be given,
inasmuch as ethical writings have laid Roman
law under contribution much more directly than
political speculations, and their authors have
been much more conscious of the extent of their
obligation. In speaking of moral philosophy as
extraordinarily indebted to Roman jurisprudence,
I must be understood to intend moral philosophy
as understood previously to the break in its
history effected by Kant, that is, as the science
of the rules governing human conduct, of their
proper interpretation, and of the limitations to
which they are subject. Since the rise of the
Critical Philosophy, moral science has almost
wholly lost its older meaning, and, except where
it is preserved under a debased form in the
casuistry still cultivated by Roman Catholic theo-
logians, it seems to be regarded nearly universally
as a branch of ontological inquiry. I do not know
that there is a single contemporary English writer,
with the exception of Dr. Whewell, who under-
stands moral philosophy as it was understood
before it was absorbed by metaphysics and before
the groundwork of its rules came to be a more


important consideration than the rules themselves.
So long, however, as ethical science had to do with
the practical regimen of conduct, it was more or
less saturated with Roman law. Like all the
great subjects of modern thought, it was originally
incorporated with theology. The science of Moral
Theology, as it was at first called, and as it is still
designated by the Roman Catholic divines, was
undoubtedly constructed, to the full knowledge
of its authors, by taking principles of conduct
from the system of the Church, and by using
the language and methods of jurisprudence for
their expression and expansion. While this pro-
cess went on, it was inevitable that jurisprudence,
though merely intended to be the vehicle of
thought, should communicate its colour to the
thought itself. The tinge received through contact
with legal conceptions is perfectly perceptible in
the earliest ethical literature of the modern world,
and it is evident, I think, that the Law of Contract,
based as it is on the complete reciprocity and
indissoluble connection of rights and duties, has
acted as a wholesome corrective to the predis-
positions of writers who, if left to themselves,
might have exclusively viewed a moral obligation
as t!ie public duty of a citizen in the Ci vitas Dei.
But the amount of Roman Law in moral theology
becomes sensibly smaller at the time of its culti-
vation by the great Spanish moralists. Moral
theology, developed by the juridical method of
doctor commenting on doctor, provided itself
with a phraseology of its own ; and Aristotelian
peculiarities of reasoning and expression, imbibed
doubtless in great part from the Disputations on


Morals in the academical schools, take the place
of that special turn of thought and speech which
can never be mistaken by any person conversant
with the Roman law. If the credit of the Spanish
school of moral theologians had continued, the
juridical ingredient in ethical science would have
been insignificant, but the use made of their
conclusions by the next generation of Roman
Catholic writers on these subjects almost entirely
destroyed their influence. Moral Theology,* de-
graded into Casuistry, lost all interest for *the
leaders of European speculation ; and the new
science of Moral Philosophy, which was entirely
in the hands of the Protestants, swerved greatly
aside from the path which the moral theologians
had followed. The effect was vastly to increase
the influence of Roman law on ethical inquiry.

" Shortly * after the Reformation, we find
two great schools of thought dividing this class
of subjects between them. The most influential
of the two was at first the sect or school known
to us as the Casuists, all of them in spiritual
communion with the Roman Catholic Church,
and nearly all of them affiliated to one or other
of her religious orders. On the other side were
a body of writers connected with each other Iby a
common intellectual descent from the great author
of the treatise 'De Jure Belli et Pads/ Hugo
Grotius. Almost all of the latter were adherents
of the Reformation ; and though it cannot be said
that they were formally and avowedly at conflict

* The passage quoted is transcribed, with slight alterations,
from a paper contributed by the author to the "Cambridge
Essays" for 1856.


with the Casuists, the origin and objects of their
system were nevertheless essentially different from
those of Casuistry. It is necessary to call attention
to this difference, because it involves the question
of the influence of Roman law on that department
of thought with which both systems are concerned.
The book of Grotius, though it touches questions
of pure Ethics in every page, and though it is
the parent immediate or remote of innumerable
volumes of formal morality, is not, as is well
knfcwn, a professed treatise on Moral Philosophy ;
it is an attempt to determine the Law of Nature,
or Natural Law. Now, without entering upon
the question whether the conception of a Law
Natural be not exclusively a creation of the
Roman jurisconsults, we may lay down that,
even on the admission of Grotius himself, the
dicta of the Roman jurisprudence as to what
parts of known positive law must be taken to
be parts of the Law of Nature, are, if not infallible,
to be received at all events with the profoundest
respect. Hence the system of Grotius is impli-
cated with Roman law at its very foundation,
and this connection rendered inevitable what
the legal training of the writer would perhaps
have entailed without it the free employment
in every paragraph of technical phraseology, and
of modes of reasoning, defining, and illustrating,
which must sometimes conceal the sense, and
almost always the force and cogency, of the argu-
ment from the reader who is unfamiliar with the
sources whence they have been derived. On the
other hand, Casuistry borrows little from Roman
j and the views of morality contended for


have nothing whatever in common with the
undertaking of Grotius. All that philosophy of
right and wrong which has become famous, or
infamous, under the name of Casuistry, had its
origin in the distinction between Mortal and
Venial sin. A natural anxiety to escape the
awful consequences of determining a particular
act to be mortally sinful, and a desire, equally
intelligible, to assist the Roman Catholic Church
in its conflict with Protestantism by disburthening
it of an inconvenient theory, were the motives
which impelled the authors of the Casuistical
philosophy to the invention of an elaborate system
of criteria, intended to remove immoral actions,
in as many cases as possible, out of the category
of mortal offences, and to stamp them as venial
sins. The fate of this experiment is matter of
ordinary history. We know that the distinctions
of Casuistry, by enabling the priesthood to adjust
spiritual control to all the varieties of human
character, did really confer on it an influence
with princes, statesmen, and generals, unheard
of in the ages before the Reformation, and did
really contribute largely to that great reaction
which checked and narrowed the first successes
of Protestantism. But beginning in the attempt,
not to establish, but to evade not to discover a
principle, but to escape a postulate not to settle
the nature of right and wrong, but to determine
what was not wrong of a particular nature,
Casuistry went on with its dexterous refinements
till it ended in so attenuating the moral features
of actions, and so belying the moral instincts of
our being, that at length the conscience of mankind


rose suddenly in revolt against it, and consigned
to one common ruin the system and its doctors.
The blow, long pending, was finally struck in
the ' Provincial Letters ' of Pascal, and since
the appearance of those memorable Papers, no
moralist of the smallest influence or credit has
ever avowedly conducted his speculations in the
footsteps of the Casuists. The whole field of
ethical science was thus left at the exclusive
command of the writers who followed Grotius ;
and? it still exhibits in an extraordinary degree
the traces of that entanglement with Roman law
which is sometimes imputed as a fault, and
sometimes the highest of its recommendations,
to the Grotian theory. Many inquiriers since
Grotius' s day have modified his principles, and
many, of course, since the rise of the Critical
Philosophy, have quite deserted them ; but even
those who have departed most widely from his
fundamental assumptions have inherited much of
his method of statement, of his train of thought,
and of his mode of illustration ; and these have
little meaning and no point to the person ignorant
of Roman jurisprudence/'

I have already said that, with the exception
of the physical sciences, there is no walk of
knowledge which has been so slightly affected by
Roman law as Metaphysics. The reason is that
discussion on metaphysical subjects has always
been conducted in Greek, first in pure Greek, and
afterwards in a dialect of Latin expressly con-
structed to give expression to Greek conceptions.
The modern languages have only been fitted to
metaphysical inquiries by adopting this Latin


dialect, or by imitating the process which was
originally followed in its formation. The source
of the phraseology which has been always employed
for metaphysical discussion in modern times was
the Latin translations of Aristotle, in which,
whether derived or not from Arabic versions,
the plan of the translator was not to seek^ for
analogous expressions in any part of Latin litera-
ture, but to construct anew from Latin roots
a set of phrases equal to the expression of Greek
philosophical ideas. Over such a process* the
terminology of Roman law can have exercised
little influence ; at most, a few Latin law terms
in a transmuted shape have made their way into
metaphysical language. At the same time it is
worthy of remark that whenever the problems
of metaphysics are those which have been most
strongly agitated in Western Europe, the thought,
if not the language, betrays a legal parentage.
Few things in the history of speculation are more
impressive than the fact that no Greek-speaking
people has ever felt itself seriously perplexed by
the great question of Free-will and Necessity. I
do not pretend to offer any summary explanation
of this, but it does not seem an irrelevant suggestion
that neither the Greeks, nor any society speaking,
and thinking in their language, ever showed the
smallest capacity for producing a philosophy of
law. Legal science is a Roman creation, and the
problem of Free-will arises when we contemplate
a metaphysical conception under a legal aspect.
How came it to be a question whether invariable
sequence was identical with necessary connection ?
I can only say that the tendency of Roman law,


which became stronger as it advanced, was to
look upon legal consequences as united to legal
causes by an inexorable necessity, a tendency
most markedly exemplified in the definition of
Obligation which I have repeatedly cited, " Juris
vinculum quo necessitate adstringimur alicujus
solvendae rei."

But the problem of Free-will was theological
before it became philosophical, and, if its terms
have been affected by jurisprudence, it will be
because Jurisprudence has made itself felt in
Theology. The great point of inquiry which is
here suggested has never been satisfactorily
elucidated. What has to be determined, is
whether jurisprudence has ever served as the
medium through which theological principles have
been viewed ; whether, by supplying a peculiar
language, a peculiar mode of reasoning, and a
peculiar solution of many of the problems of life,
it has ever opened new channels in which theolo-
gical speculation could flow out and expand itself.
For the purpose of giving an answer it is necessary
to recollect what is already agreed upon by the
best writers as to the intellectual food which
theology first assimilated. It is conceded on all
sides that the earliest language of the Christian
Church was Greek, and that the problems to
which it first addressed itself were those for which
Greek philosophy in its later forms had prepared
the way. Greek metaphysical literature contained
the sole stock of words and ideas out of which the
human mind could provide itself with the means
of engaging in the profound controversies as
to the Divine Persons, the Divine Substance, and


the Divine Natures. The Latin language and the
meagre Latin philosophy were quite unequal to
the undertaking, and accordingly the Western or
Latin-speaking provinces of the Empire adopted
the conclusions of the East without disputing
or reviewing them. " Latin Christianity/' says
Dean Milman, " accepted the creed which its
narrow and barren vocabulary could hardly
express in adequate terms. Yet, throughout,
the adhesion of Rome and the West was a passive
acquiescence in the dogmatic system which 'had
been wrought out by the profounder theology
of the Eastern, divines, rather than a vigorous
and original examination on her part of those
mysteries. The Latin Church was the scholar
as well as the loyal partisan of Athanasius."
But when the separation of East and West became
wider, and the Latin-speaking Western Empire
began to live with an intellectual life of its own,
its deference to the East was all at once exchanged
for the agitation of a number of questions entirely
foreign to Eastern speculation. " While Greek
theology (Milman, ' Latin Christianity/ Preface,
5) went on defining with still more exquisite
subtlety the Godhead and the nature of Christ "
" while the interminable controversy ' still
lengthened out and cast forth sect after sect from
the enfeebled community" the Western Church
threw itself with passionate ardour into a new
order of disputes, the same which from those
days to this have never lost their interest for any
family of mankind at any time included in the
Latin communion. The nature of Sin and its
transmission by inheritance the debt owed by


man and its vicarious satisfaction the necessity
and sufficiency of the Atonement above all the
apparent antagonism between Free-will and the
Divine Providence these were the points which
the West began to debate as ardently as ever
the East had discussed the articles of its more
special creed. Why is it then that on the two
sides of the line which divides the Greek-speaking
from the Latin-speaking provinces there lie two
classes of theological problems so strikingly dif-
ferent from one another ? The historians of the
Church have come close* upon the solution when
they remark that the new problems were more
" practical," less absolutely speculative, than
those which had torn Eastern Christianity asunder,
but none of them, so far as I am aware, has quite
reached it. I affirm without hesitation that the
difference between the two theological systems
is accounted for by the fact that, in passing from
the East to the West, theological speculation had
passed from a climate of Greek metaphysics to
a climate of Roman law. For some centuries
before these controversies rose into overwhelming
importance, all the intellectual activity of the
Western Romans had been expended on juris-
pruSence exclusively. They had been occupied
in applying a peculiar set of principles to all the
combinations in which the circumstances of life
are capable of being arranged. No foreign pursuit
or taste called off their attention from this, en-
grossing occupation, and for carrying it on they
possessed a vocabulary as accurate as it was
copious, a strict method of reasoning, a stock of
general propositions on conduct more or less


verified by experience, and a rigid moral philo-
sophy. It was impossible that they should not
select from the questions indicated by the Christian
records those which had some affinity with the
order of speculations to which they were accus-
tomed, and that their manner of dealing with them
should not borrow something from their forensic
habits. Almost everybody who has knowledge
enough of Roman law to appreciate the Roman
penal system, the Roman theory of the obligations
established by Contract or Delict, the Roman
view of Debts and of the modes of incurring,
extinguishing, and transmitting them, the Roman
notion of the continuance of individual existence
by Universal Succession, may be trusted to say
whence arose the frame of mind to which the
problems of Western theology proved so congenial,
whence came the phraseology in which these
problems were stated, and whence the description
of reasoning employed in their solution. It must
only be recollected that the Roman law which
had worked itself into Western thought was
neither the archaic system of the ancient city,
nor the pruned and curtailed jurisprudence of the
Byzantine Emperors ; still less, of course, was it
the mass of rules, nearly buried in a parasitical
overgrowth of modern speculative doctrine, which
passes by the name of Modern Civil Law. I
speak only of that philosophy of jurisprudence,
wrought out by the great juridical thinkers of the
Antonine age, which may still be partially re-
produced from the Pandects of Justinian, a system
to which few faults can be attributed except
perhaps that it aimed at a higher degtee of


elegance, certainty, and precision than human
affairs will permit to the limits within which
human law seeks to confine them.

It is a singular result of that ignorance of
Roman law which Englishmen readily confess, and
of which they are sometimes not ashamed to boast,
that many English writers of note and credit
have been led by it to put forward the most un-
tenable of paradoxes concerning the condition
of human intellect during the Roman empire.
It hjts been constantly asserted, as unhesitatingly
as if there were no temerity in advancing the
proposition, that from the close of the Augustan
era to the general awakening of interest on the
points of the Christian faith, the mental energies
of the civilised world were smitten with a paralysis.
Now there are two subjects of thought the only
two perhaps with the exception of physical science
which are able to give employment to all the
powers and capacities which the mind possesses.
One of them is Metaphysical inquiry, which knows
no limits so long as the mind is satisfied to work
on itself ; the other is Law, which is as extensive
as the concerns of mankind. It happens that,
-during the very period indicated, the Greek-
speaking provinces were devoted to one, the Latin-
speaking provinces to the other of these studies.
I say nothing of the fruits of speculation in
Alexandria and the East, but I confidently affirm
that Rome and the West had an occupation .in
hand fully capable of compensating them for the
absence of every other mental exercise, and I
add that the results achieved, so far as we know
them, were not unworthy of the continuous and


exclusive labour bestowed on producing them.
Nobody except a professional lawyer is perhaps
in a position completely to understand how much
of the intellectual strength of individuals Law
is capable of absorbing, but a layman has no
difficulty in comprehending why it was that an
unusual share of the collective intellect of Rome
was engrossed by jurisprudence. " The pro-
ficiency * of a given community in jurisprudence
depends in the long run on the same conditions
as its progress in any other line of inquiry ; t and
the chief of these are the proportion of the national
intellect devoted to it, and the length of time
during which it is so devoted. Now, a combina-
tion of all the causes, direct and indirect, which
contribute to the advancing and perfecting of a
science, continued to operate on the jurisprudence
of Rome through the entire space between the
Twelve Tables and the severance of the two
Empires, and that not irregularly or at intervals,
but in steadily increasing force and constantly
augmenting number. We should reflect that the
earliest intellectual exercise to which a young
nation devotes itself is the study of its laws. As
soon as the mind makes its first conscious efforts*
towards generalisation, the concerns of every-day
life are the first to press for inclusion within
general rules and comprehensive formulas. The
popularity of the pursuit on which all the energies
of c the young commonwealth are bent is at the
outset unbounded ; but it ceases in time. The
monopoly of mind by law is broken down. The
crowd at the morning audience of the great

* "Cambridge Essays," 1856.


Roman jurisconsult lessens. The students are
counted by hundreds instead of thousands in the
English Inns of Court. Art, Literature, Science,
and Politics claim their share of the national
intellect ; and the practice of jurisprudence is
confined within the circle of a profession, never
indeed limited or insignificant, but attracted as
much by the rewards as by the intrinsic recom-
mendations of their science. This succession of
changes exhibited itself even more strikingly at
Rome than in England. To the close of the
Republic the law was the sole field for all ability
except the special talent of a capacity for general-
ship. But a new stage of intellectual progress
began with the Augustan age, as it did with our
own Elizabethan era. We all know what were its
achievements in poetry and prose ; but there
are some indications, it should be remarked, that,
besides its efflorescence in ornamental literature,
it was on the eve of throwing out new aptitudes
for conquest in physical science. Here, however,
is the point at which the history of mind in the
Roman States ceases to be parallel to the routes
which mental progress has since then pursued.
The brief span of Roman literature, strictly so
callecl, was suddenly closed under a variety of
influences, which, though they may partially be
traced, it would be improper in this place to
analyse. Ancient intellect was forcibly thrust
back into its old courses, and law again became
no less exclusively the proper sphere for talent
than it had been in the days when the Romans
despised philosophy and poetry as the toys of a
childish race. Of what nature were the external



inducements which, during the Imperial period,
tended to draw a man of inherent capacity to the
pursuits of the jurisconsult may best be under-
stood by considering the option which was prac-
tically before him in his choice of a profession.
He might become a teacher of rhetoric, a com-
mander of frontier-posts, or a professional writer
of panegyrics. The only other walk of active
life which was open to him was the practice of
the law. Through that lay the approach to wealth,
to fame, to office, to the council-chamber of the
monarch it may be to the very throne itself/'

The premium on the study of jurisprudence
was so enormous that there were schools of law
in every part of the Empire, even in the very
domain of Metaphysics. But, though the transfer
of the seat of empire to Byzantium gave a per-
ceptible impetus to its cultivation in the East,
jurisprudence never dethroned the pursuits which
there competed with it. Its language was Latin,
an exotic dialect in the Eastern half of the Empire.
It is only of the West that we can lay down that
law was not only the mental food of the ambitious
and aspiring, but the sole aliment of all intellectual
activity. Greek philosophy had never been more
than a transient fashionable taste with the tdu-
cated class of Rome itself, and when the new
Eastern capital had been created, and the Empire
subsequently divided into two, the divorce of the
Western provinces from Greek speculation, and
their exclusive devotion to jurisprudence, became
more decided than ever. As soon then as they
ceased to sit at the feet of the Greeks and began
to ponder out a theology of their own, the theology


proved to be permeated with forensic ideas and
couched in a forensic phraseology. It is certain
that this substratum of law in Western theology
lies exceedingly deep. A new set of Greek
theories, the Aristotelian philosophy, made their
way afterwards into the West, and almost entirely
buried its indigenous doctrines. But when at
thte Reformation it partially shook itself free from
their influence, it instantly supplied their place
with Law. It is difficult to say whether the
rebgious system of Calvin or the religious system
of the Arminians has the more markedly legal

The vast influence of this specific jurisprudence
of Contract produced by the Romans upon the
corresponding department of modern Law belongs
rather to the history of mature jurisprudence than
to a treatise like the present. It did not make
itself felt till the school of Bologna founded the
legal science of modern Europe. But the fact that
the Romans, before their Empire fell, had so fully
developed the conception of Contract becomes
of importance at a much earlier period than this.
Feudalism, I have repeatedly asserted, was a
compound of archaic barbarian usage with Roman
laW*; no other explanation of it is tenable, or
even intelligible. The earliest social forms of the
feudal period differ in little from the ordinary
associations in which the men of primitive civilisa-
tions are everywhere seen united. A Fief was
an organically complete brotherhood of associates
whose proprietary and personal rights were in-
extricably blended together. It had much in
common with an Indian Village Community and


much in common with a Highland clan. But
still it presents some phenomena which we never
find in the associations which are spontaneously
formed by beginners in civilisation. True archaic
communities are held together not by express
rules, but by sentiment, or, we should perhaps
say, by instinct ; and new comers into the brother-
hood are brought within the range of this instinct
by falsely pretending to share in the blood-
relationship from which it naturally springs.
But the earliest feudal communities were neithter
bound together by mere sentiment nor recruited
by a fiction. The tie which united them was
Contract, and they obtained new associates by
contracting with them. The relation of the lord
to the vassals had originally been settled by
express engagement, and a person wishing to
engraft himself on the brotherhood by commen-
dation or infeudation came to a distinct under-
standing as to the conditions on which he
was to be admitted. It is therefore the sphere
occupied in them by Contract which principally
distinguishes the feudal institutions from the un-
adulterated usages of primitive races. The lord
had many of the characteristics of a patriarchal
chieftain, but his prerogative was limited by a
variety of settled customs traceable to the express
conditions which had been agreed upon when the
infeudation took place. Hence flow the chief
differences which forbid us to class the feudal
societies with true archaic communities. They
were much more durable and much more various ;
more durable, because express rules are less
destructible than instinctive habits, and more

various, because the contracts on which they
were founded were adjusted to the minutest
circumstances and wishes of the persons who
surrendered or granted away their lands. This
last consideration may serve to indicate how
greatly the vulgar opinions current among us
as to the origin of modern society stand in need
of revision. It is often said that the irregular
and various contour of modern civilisation is
due to the exuberant and erratic genius of the
Gfermanic races, and it is often contrasted with the
dull routine of the Roman Empire. The truth
is that the Empire bequeathed to modern society
the legal conception to which all this irregularity
is attributable ; if the customs and institutions
of barbarians have one characteristic more striking
than another, it is their extreme uniformity.

© Art Branch Inc. | English Dictionary