Chapter I: Preface (1)

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

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

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

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

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

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

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

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

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

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

_June 27, 1901._

CONTENTS

_VOLUME I_

ESSAY I

PAGE

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

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

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

Earlier effort of Rome to unify mankind 3

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

The Colonies of England: the British Empire in India 4

Position of Rome and England respectively in their Empires 8

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

Conditions favouring Roman and British Indian conquest 10

Military character of Roman and British rule 13

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

Strength of the Roman and British armies 17

Efforts to find a scientific frontier 19

The Romans and English as Road and Railway Builders 21

Success of both in maintaining internal order and security 23

Character of Roman and British administration 26

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

Variations in provincial administration in Roman Empire and 35
India

Revenue and taxation of the two Empires 37

Employment of native subjects in civil and military posts 42

Civil rights of conquerors and of subjects 46

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

Character of the conquerors as a source of their strength 58

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

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

Influence of Climate, of Colour, of Religion 63

Languages and literature in Roman Empire and in India 70

Influences which favoured fusion in Roman Empire absent from 74
India

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

What the experience of the English in India has proved 79

Causes which overthrew the Roman Empire 80

Probable future of British power in India 82

ESSAY II

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

Geographical areas now covered by Roman and by English Law 85

Extension of Roman Law by conquest 88

Methods of Legal Administration in the provinces 91

Gradual assimilation of Roman and Provincial Law 97

Establishment of one law for the Roman Empire 99

How the Romans were able to create an imperial law 103

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

Diffusion of English Law over regions settled or conquered 110

Legal systems which the English found in India 113

Policy followed by the English in dealing with Indian Law 117

Codification in India 121

Reciprocal action of English and Native Law on one another 124

Merits and working of the Anglo-Indian Codes 127

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

Probable future of English Law in India 138

English and Roman Law over the world 142

ESSAY III

FLEXIBLE AND RIGID CONSTITUTIONS 145-254

Observations on the Constitutions of Rome and England 145

Old Classification of Constitutions as Written and Unwritten 148

Proposed new classification 150

Flexible Constitutions: how far distinguishable from laws in 154
general

Origin of Flexible Constitutions 159

Strength and weakness of Flexible Constitutions 163

Such Constitutions are rather elastic than unstable 168

Illustrations from the Constitutions of Rome and England 169

Dangers possibly inherent in Flexible Constitutions 175

Flexible Constitutions suited to aristocratic governments 178

Checks applied in Rome and in England 181

Influence of Constitutions on the mind of a nation 185

Illustrations from Rome and England 189

Capacity of Constitutions for Territorial Expansion 193

Enumeration of existing Rigid Constitutions 196

Circumstances under which Rigid Constitutions arise 200

Enactment and amendment of Rigid Constitutions 205

Various modes now in use for amending them 210

How far can Rigid Constitutions be definite or complete? 217

Stability of Rigid Constitutions 221

The interpretation of Rigid Constitutions 228

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

American views as to Interpretation 232

Suitability of Rigid Constitutions to Democracies 234

Recent changes of opinion in the United States and England 239

Probable future of the two types of Constitution 242

Proposals for federalizing the British Constitution 245

Possible creation of new States and Constitutions 249

ESSAY IV

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

The influence of aggregative and disjunctive forces on political 255
societies

Tendencies which may act either Centripetally or Centrifugally 261

Influences of Interest and Sympathy 263

Illustrations of the action of Racial and Religious sentiment 265

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

How Constitutions may use the existing Centripetal and 271
Centrifugal forces

Illustrations from Commerce, Law and Religion 274

Instances of the troubles caused by Racial or Religious 281
sentiment

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

Difficulties due to differences of colour in races 291

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

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

Effects of Conquest and of Dynastic Succession 303

Probable future strength of the centrifugal and centripetal 307
forces respectively

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

ESSAY V

PRIMITIVE ICELAND 312-358

Discovery and Settlement of Iceland 312

Beginnings of a Polity: the Thing 316

Rise of the Goði or Priest-Chieftain 317

The first political constitution of the island 322

Judicial organization and powers of the Althing 325

The Speaker of the Law 327

Thingvellir and the meetings of the Althing 327

General character of the Icelandic Republic 333

Growth and character of the law of Iceland 335

Complexity of the constitution and the law 337

Sources of our knowledge of the law 341

Illustrations of features of the early law 343

An action for the ejectment of ghosts 345

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

The introduction of Christianity 350

Reflections on the early history of Iceland 353

Fall of the Republic: subsequent fortunes of the isle 356

ESSAY VI

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

Value of contemporary views of an institution 359

The _Federalist_: Alex Hamilton and James Madison 360

The United States in A.D. 1788 361

Predictions of the opponents of the New Constitution 366

Views of its supporters: dangers feared by them 369

Examination of the predictions of 1788 374

Characteristic merits and defects of American Democracy only 378
slightly foreseen

The _Democracy in America_ of Alexis de Tocqueville 381

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

His insufficient knowledge of England 385

His preoccupation with France 387

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

Condition of the United States in Tocqueville’s day 392

His description of the salient features of the nation 397

Advantages which he conceives Democracy to have secured 403

Evils he discovers in American Democracy 404

Causes which in his view maintain Republican government 406

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

Points omitted in his description 413

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

Chief political changes of the last sixty-seven years 417

Examination of Tocqueville’s predictions 418

Summary of Tocqueville’s conclusions 425

General course of events in America since 1788 427

What Tocqueville would say to-day 428

ESSAY VII

TWO SOUTH AFRICAN CONSTITUTIONS 430-467

Originality of the Constitutions of the two Dutch Republics 430

Circumstances under which they arose 432

Constitution of the Orange Free State 436

Constitution of the South African Republic (Transvaal) 441

Observations on the Constitution of the South African Republic 448

Is it a Rigid or a Flexible Constitution? 449

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

The Constitution is certainly a Flexible one 453

Observations upon both these Constitutions 455

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

Relations of Executive and Legislature in these Dutch Republics 460

Practical Working of the Constitution of the Orange Free State 463

Working of the Constitution of the South African Republic 464

Postscript 466

ESSAY VIII

THE CONSTITUTION OF THE COMMONWEALTH OF AUSTRALIA 468-553

Interest attaching to the new Constitution of Australia 468

Origin and progress of the movement for federalizing Australia 471

Causes which induced Federation 477

Influence of a Pan-Australian sentiment 480

Physical and racial conditions favouring Federation 483

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

Two leading types of Federal Government 489

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

Position of the Australian States under the Constitution 494

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

The National Government: few restrictions on its powers 501

The Legislature: Representation of the States in the Senate 503

The House of Representatives 506

The Executive and the Judiciary 508

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

Intended working of the scheme of Government: The Cabinet 513

Provision against legislative deadlocks 516

Relations of the Two Houses 518

Financial provisions: railways and rivers 521

Location of the national capital: admission of New States 522

Mode of amending the Constitution 523

Relations of the Australian Commonwealth to the British Crown 525

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

Comparison with that of the Dominion of Canada 528

Further observations on the Constitution 531

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

Its highly democratic character 535

It contemplates a party system 539

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

What political issues are likely to arise in Australia? 542

Probable prominence of Economic questions 545

Possible creation and admission of New States 547

Will New Zealand enter the Federation? 548

Tendencies to consolidation maybe strengthened by disputes with 550
foreign powers

Future relations of Australia to Britain 551

_VOLUME II_

ESSAY IX

OBEDIENCE 1-48

Different Theories of the Nature of Political Obedience #1#

The grounds of compliance in general: Indolence #6#

Deference and Sympathy #9#

Reason and Fear #12#

Respective strength of these springs of Obedience #14#

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

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

Influences forming Obedience in early societies #21#

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

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

Influences apparently making for subordination #28#

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

How a pessimist might view existing conditions #33#

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

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

ESSAY X

THE NATURE OF SOVEREIGNTY 49-111

Confusions regarding the term Sovereignty #49#

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

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

Sovereignty _de facto_: concrete instances #59#

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

Action and reaction of each on the other #68#

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

Mediaeval views of Sovereignty: Emperor and Pope #79#

New theories of the sixteenth and seventeenth centuries #82#

Bodin, Althaus, Hobbes #84#

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

Bentham revives Hobbes’ doctrine #88#

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

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

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

Sovereignty in International Relations #101#

Sovereignty in a Federation #104#

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

ESSAY XI

THE LAW OF NATURE 112-171

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

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

Nature as a force in human society #120#

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

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

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

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

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

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

Practical identification of _Ius Gentium_ and _Ius Naturae_ #142#

Points of difference which remained: Slavery #144#

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

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

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

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

The Law of Nature in Modern Times #161#

Its relation to the Law of England #164#

Its influence on the rise of International Law #167#

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

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

ESSAY XII

THE METHODS OF LEGAL SCIENCE 172-208

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

Four Methods employed in Legal Science #174#

The Metaphysical Method: German _Naturrecht_ #174#

The Analytic Method: the Benthamites #178#

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

The Historical Method #184#

The Comparative Method #186#

Value of these four Methods respectively #190#

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

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

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

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

ESSAY XIII

THE RELATIONS OF LAW AND RELIGION 209-246

Apparent Antagonism of Law and Religion #209#

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

Differences in this respect between different peoples #215#

The Jews in Roman times: primitive Christianity #216#

Islam; identification of Law with Religion #218#

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

Description of El Azhar and its Teaching #220#

Course of Instruction: Graduation: Endowments #225#

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

Causes of the arrested development of Musulman Universities #233#

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

Identity of State and Church under Islam #240#

How Christianity avoided a similar identification #242#

ESSAY XIV

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

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

Law-making Authorities in general #249#

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

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

Changed position of the Jurists under the Empire #257#

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

Roman Treatises compared with English Reports #266#

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

The Praetor at Rome #273#

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

The English Chancellor #278#

Praetorian Edicts compared with English Case-Law #281#

Further observations on Praetorian methods #287#

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

Direct Legislation at Rome: its Organs #293#

The Popular Assembly: its method of legislating #297#

Merits of the Roman Statutes #300#

Legislation by the Senate: its characteristics #303#

Direct legislation by the Emperor #308#

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

Defects in Imperial legislation #315#

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

Direct legislation in England: its history #321#

Advantages of Parliament and Congress for legislation #323#

Strictures commonly passed on English and American Statutes #325#

Difficulties incident to Parliamentary legislation #327#

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

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

ESSAY XV

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

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

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

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

Roman Legal History during the republican period #345#

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

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

The decline in legal learning induced Codification #354#

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

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

The Reformation and the Civil War #361#

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

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

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

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

Observations on France and Germany #375#

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

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

ESSAY XVI

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

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

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

Early Marriage law of the Romans #386#

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

Transition to a freer system #389#

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

Relation of the Consorts as respects Property #395#

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

Roman doctrine and practice regarding Divorce #402#

Influence of Christianity on Imperial Legislation #406#

Other Roman rules: prohibited degrees: _Concubinatus_ #409#

Marriage under the Canon Law #416#

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

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

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

Personal Liberty of the Wife now well established #430#

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

Divorce under the Canon Law #433#

History of Divorce in England #436#

Divorce Laws in the United States #439#

Laxity of Procedure in Divorce Cases #441#

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

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

Divorce in modern European countries #450#

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

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

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

Influence of the Church and of the Law #464#

Does the English Divorce Law need amendment? #465#

Changes in Theory and in Sentiment regarding Marriage #469#

INAUGURAL LECTURE #475#

VALEDICTORY LECTURE #504#

INDEX #527#

I

THE ROMAN EMPIRE AND THE
BRITISH EMPIRE IN INDIA

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

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

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

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

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

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

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Footnote 1:

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

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

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

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

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

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

Russia has met with practically no resistance in occupying her vast territories in Northern Asia; though she had some sharp tussles with the nomad Turkmans, and tedious conflicts both with Shamyl and with the Circassians in the Caucasus. But both Rome and England had to fight long and fight hard for what they won. The progress of Roman and British expansion illustrates the remark of Oliver Cromwell that no one goes so far as he who does not know whither he is going. Neither power set out with a purpose of conquest, such as Alexander the Great, and perhaps Cyrus, had planned and carried out before them. Just as Polybius, writing just after the destruction of Carthage in B.C. 146, already perceived that Rome was, by the strength of her government and the character of her people, destined to be the dominant power of the civilized world, so it was prophesied immediately after the first victories of Clive that the English would come to be the masters of all India. Each nation was drawn on by finding that one conquest led almost inevitably to another because restless border tribes had to be subdued, because formidable neighbours seemed to endanger the safety of subjugated but often discontented provinces, because allies inferior in strength passed gradually into the position first of dependants and then of subjects.

The Romans however, though they did not start out with the notion of conquering even Italy, much less the Mediterranean world, came to enjoy fighting for its own sake, and were content with slight pretexts for it. For several centuries they were always more or less at war somewhere. The English went to India as traders, with no intention of fighting anybody, and were led into the acquisition of territory partly in order to recoup themselves for the expensive efforts they had made to support their first allies, partly that they might get revenue for the East India Company’s shareholders, partly in order to counterwork the schemes of the French, who were at once their enemies in Europe and their rivals in the East. One may find a not too fanciful analogy to the policy of the English in the days of Clive, when they were drawn further and further into Indian conflicts by their efforts to check the enterprises of Dupleix and Lally, in the policy of the Romans when they entered Sicily to prevent Carthage from establishing her control over it. In both cases an effort which seemed self-protective led to a long series of wars and annexations.

Rome did not march so swiftly from conquest to conquest as did England. Not to speak of the two centuries during which she was making herself supreme in Italy, she began to conquer outside its limits from the opening of the First Punic War in B.C. 264, and did not acquire Egypt till B.C. 30, and South Britain till A.D. 43-85[2]. Her Eastern conquests were all the easier because Alexander the Great’s victories, and the wars waged by his successors, had broken up and denationalized the East, much as the Mogul conquerors afterwards paved the way for the English in India. England’s first territorial gains were won at Plassy in A.D. 1757[3]: her latest acquisition was the occupation of Mandalay in 1885. Her work was done in a century and a quarter, while that of Rome took fully three centuries. But England had two great advantages. Her antagonists were immeasurably inferior to her in arms as well as in discipline. As early as A.D. 1672 the great Leibnitz had in a letter to Lewis XIV pointed out the weakness of the Mogul Empire; and about the same time Bernier, a French physician resident at the Court of Aurungzeb, declared that 20,000 French troops under Condé or Turenne could conquer all India[4]. A small European force, and even a small native force drilled and led by Europeans, was as capable of routing huge Asiatic armies as the army of Alexander had proved capable of overthrowing the immensely more numerous hosts of Darius Codomannus. Moreover, the moment when the English appeared on the scene was opportune. The splendid Empire of Akbar was crumbling to pieces. The Mahratta confederacy had attained great military power, but at the battle of Paniput, in 1761, it received from the Afghans under Ahmed Shah Durani a terrific blow which for the time arrested its conquests. Furthermore, India, as a whole, was divided into numerous principalities, the feeblest of which lay on the coasts of the Bay of Bengal. These principalities were frequently at war with one another, and glad to obtain European aid in their strife. And England had a third advantage in the fact that she encountered the weakest of her antagonists first. Had she, in those early days when her forces were slender, been opposed by the valour of Marathas or Sikhs, instead of by the feeble Bengalis and Madrassis, her ambitions might have been nipped in the bud. When she found herself confronted by these formidable foes she had already gained experience and had formed a strong native army. But when the Romans strove against the Achaean League and Macedon they had to fight troops all but equal to themselves. When Carthage was their antagonist, they found in Hamilcar a commander equal, in Hannibal a commander superior to any one they could send against him. These earlier struggles so trained Rome to victory that her later conquests were made more easily. The triumphs of the century before and the century after Julius Caesar were won either over Asiatics, who had discipline but seldom valour, or over Gauls, Iberians, Germans, and Caledonians, who had valour but not discipline. Occasional reverses were due to the imprudence of a general, or to an extreme disparity of forces; for, like the English, the Romans did not hesitate to meet greatly superior numbers. The defeat of Crassus by the Parthians and the catastrophe which befell Varus in the forests of Paderborn find a parallel in the disastrous retreat of the English army from Cabul in 1843. Except on such rare occasions the supremacy of Roman arms was never seriously challenged, nor was any great calamity suffered till the barbarian irruption into Italy in the reign of Marcus Aurelius. A still graver omen for the future was the overthrow of Valerian by the Persians in A.D. 260. The Persians were inferior in the arts of civilization and probably in discipline: but the composition of the Roman armies was no longer what it had been three centuries earlier, for the peasantry of Italy, which had formed the kernel of their strength, were no longer available. As the provincial subjects became less and less warlike, men from beyond the frontier were enrolled, latterly in bodies under their native chiefs—Germans, or Arabs, or, in still later days, Huns—just as the native army in British India, which has now become far more peaceful than it was a century ago, is recruited by Pathans and Ghurkas from the hills outside British territory as well as by the most warlike among the Indian subjects of the Crown. The danger of the practice is obvious. Rome was driven to it for want of Roman fighting-men[5]. England guards against its risks by having a considerable force of British troops alongside her native army.

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Footnote 2:

Dacia was taken by Trajan in A.D. 107, and lost in A.D. 251.
Mesopotamia and Arabia Petraea were annexed by Trajan about the same
time, but the former was renounced so soon afterwards that its
conquest can hardly be considered a part of the regular process of
expansion.

Footnote 3:

Territorial authority may be said to date from the grant of the Diwani
in 1765.

Footnote 4:

See the admirably clear and thoughtful book of Sir A. C. Lyall, _Rise
of British Dominion in India_, pp. 52 and 126.

Footnote 5:

And indeed the employment of these barbarians to resist the outer
barbarians probably prolonged the life of the Empire.

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The fact that their dominions were acquired by force of arms exerted an enduring effect upon the Roman Empire and continues to exert it upon the British in imprinting upon their rule in India a permanently military character. The Roman administration began with this character, and never lost it, at least in the frontier provinces. The governors were pro-consuls or propraetors, or other officials[5] entrusted with the exercise of an authority in its origin military rather than civil. A governor’s first duty was to command the troops stationed in the province. The camps grew into towns, and that which had been a group of _canabae_ or market stalls, a sort of bazaar for the service of the camp, sometimes became a municipality. One of the most efficient means of unifying the Empire was found in the bringing of soldiers born in one part of it to be quartered for many years together in another. Military distinction was open to every subject, and military distinction might lead to the imperial throne. So the English in India are primarily soldiers. True it is that they went to India three centuries ago as traders, that it was out of a trading company that their power arose, and that this trading company did not disappear till 1858. The covenanted civil service, to which Clive for instance belonged, began as a body of commercial clerks. Nothing sounds more pacific. But the men of the sword very soon began to eclipse the men of the quill and account book. Being in the majority, they do so still, although for forty years there have been none but petty frontier wars. Society is not in India, as it is in England, an ordinary civil society occupied with the works and arts of peace, with an extremely small military element. It is military society, military first and foremost, though with an infusion of civilian officials, and in some towns with a small infusion of lawyers and merchants, as well as a still smaller infusion of missionaries. Military questions occupy every one’s thoughts and talk. A great deal of administrative or diplomatic work is done, and often extremely well done, by officers in civil employment. Many of the railways are primarily strategic lines, as were the Roman roads. The railway stations are often placed, for military reasons, at a distance from the towns they serve: and the cantonments where the Europeans, civilians as well as soldiers, reside, usually built some way off from the native cities, have themselves, as happened in the Roman Empire, grown into regular towns. The traveller from peaceful England feels himself, except perhaps in Bombay, surrounded by an atmosphere of gunpowder all the time he stays in India.

Before we pass from the military aspects of the comparison let it be noted that both Empires have been favoured in their extension and their maintenance by the frontiers which Nature had provided. The Romans, when once they had conquered Numidia, Spain, and Gaul, had the ocean and nothing but the ocean (save for the insignificant exception of barbarous Mauretania) to the west and north-west of them, an awesome and untravelled ocean, from whose unknown further shore no enemy could appear. To the south they were defended by the equally impassable barrier of a torrid and waterless desert, stretching from the Nile to the Atlantic. It was only on the north and east that there were frontiers to be defended; and these two sides remained the quarters of danger, because no natural barrier, arresting the progress of armies or constituting a defensible frontier, could be found without pushing all the way to the Baltic in one direction or to the ranges of Southern Kurdistan, perhaps even to the deserts of Eastern Persia in the other. The north and the east ultimately destroyed Rome. The north sent in those Teutonic tribes which occupied the western provinces and at last Italy herself, and those Slavonic tribes which settled between the Danube, the Aegean, and the Adriatic, and permeated the older population of the Hellenic lands. Perhaps the Emperors would have done better for the Empire (whatever might have been the ultimate loss to mankind) if, instead of allowing themselves to be disheartened by the defeat of Varus, they had pushed their conquests all the way to the Baltic and the Vistula, and turned the peoples of North and Middle Germany into provincial Romans. The undertaking would not have been beyond the resources of the Empire in its vigorous prime, and would have been remunerative, if not in money, at any rate in the way of providing a supply of fighting-men for the army. So too the Emperors might possibly have saved much suffering to their Romanized subjects in South Britain had they followed up the expedition of Agricola and subdued the peoples of Caledonia and Ierne, who afterwards became disagreeable as Picts and Scots. The east was the home of the Parthians, of the Persians, so formidable to the Byzantine Emperors in the days of Kobad and Chosroes Anushirwan, and of the tribes which in the seventh and eighth centuries, fired by the enthusiasm of a new faith and by the prospect of booty, overthrew the Roman armies and turned Egypt, Syria, Africa, Spain, and ultimately the greater part of Asia Minor into Muhamadan kingdoms. Had Rome been menaced on the south and west as she was generally menaced on the east and sometimes on the north, her Empire could hardly have lived so long. Had she possessed a natural barrier on the east like that which the Sahara provided on the south she might have found it easy to resist, and not so very hard even to subjugate, the fighting races of the north.

Far more fortunate has been the position of the English in India. No other of the great countries of the world is protected by such a stupendous line of natural entrenchments as India possesses in the chain of the Himalayas from Attock and Peshawur in the west to the point where, in the far east, the Tsanpo emerges from Tibet to become in Upper Assam the Brahmaputra. Not only is this mountain mass the loftiest and most impassable to be found anywhere on our earth; it is backed by a wide stretch of high and barren country, so thinly peopled as to be incapable of constituting a menace to those who live in the plains south of the Himalayas. And in point of fact the relations, commercial as well as political, of India with Tibet, and with the Chinese who are suzerains of Tibet, have been, at least in historical times, extremely scanty. On the east, India is divided from the Indo-Chinese peoples, Talains, Burmese and Shans, by a belt of almost impenetrable hill and forest country: nor have these peoples ever been formidable neighbours. It is only at its north-western angle, between Peshawur and Quetta (for south of Quetta as far as the Arabian Sea there are deserts behind the mountains and the Indus) that India is vulnerable. The rest of the country is protected by a wide ocean. Accordingly the masters of India have had only two sets of foes to fear; European maritime powers who may arrive by sea after a voyage which, until our own time, was a voyage of three or four months, and land powers who, coming from the side of Turkistan or Persia, may find their way, as did Alexander the Great and Nadir Shah, through difficult passes into the plains of the Punjab and Sindh. This singular natural isolation of India, as it facilitated the English conquest by preventing the native princes from forming alliances with or obtaining help from powers beyond the mountains or the sea, so has it also enabled the English to maintain their hold with an army extraordinarily small in proportion to the population of the country. The total strength of the Roman military establishment in the days of Trajan, was for an area of some two and a half millions of square miles and population of possibly one hundred millions, between 280,000 and 320,000 men. Probably four-fifths of this force was stationed on the Rhine, the Danube, and the Euphrates. There were so few in most of the inner provinces that, as some one said, the nations wondered where were the troops that kept them in subjection.