Chapter I: Front Matter

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STUDIES

IN

HISTORY AND JURISPRUDENCE

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

STUDIES
IN HISTORY AND
JURISPRUDENCE

BY

JAMES BRYCE, D.C.L.

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

IN TWO VOLUMES

VOLUME II

OXFORD
AT THE CLARENDON PRESS
1901

OXFORD

PRINTED AT THE CLARENDON PRESS

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

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 Amercan 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

IX

OBEDIENCE

The question which meets on the threshold of their inquiries all who have speculated on the nature of political society and the foundations of law is this: What is the force that brings and keeps men under governments? or, in other words, What is the ground of Obedience?