Ancient Law Chapter 9

g the Roman Empire. It has 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 proficiency （2*） of a given community in jurisprudence depends in the long run on the same conditions as its progress in any other line of inquiry； 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 combination 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 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 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 recommendations 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 generalship. 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 aptitude for conquest in physical science. Here， however， is the point at which the history of mind in the Roman State ceases to be parallel to the routes which mental progress had since then pursued. The brief span of Roman literature， strictly so called， 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 understood by considering the option which was practically before him in his choice of a profession. He might become a teacher

of rhetoric， a commander 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 perceptible 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 educated 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 the Reformation it partially shook itself free from their influence， it instantly supplied their place with Law. It is difficult to say whether the religious system of Calvin or the religious system of the Arminians has the more markedly legal character.

　　The vast influence of the specific jurisprudence of Contract produced by the Romans upon the corresponding department of modern Law belongs rather to the history of mature juris prudence 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 civilisations are everywhere seen united. A Fief was an organically complete brotherhood of associates whose proprietary and personal rights were inextricably 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 brotherhood 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 neither 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 commendation or infeudation came to a distinct understanding as to the conditions on which he was to be admitted. It is therefore the sphere occupied in them by Contract which principal

ly distinguishes the feudal institutions from the unadulterated 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 art 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 Germanic 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 cust

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