Various

“ In this oldest Jupiter of the Latins and Romans, the god of the light and the heaven, and the god invoked in taking the most solemn oaths, we may undoubtedly see not only the great protecting deity of the race, but one, and perhaps the only one, whose worship embodies a distinct moral conception. ”

“ In no one of these taken by itself, but in the substance of them all taken together, is the true law, in Austin’s sense, to be found. Thus the rule that every will must be in writing is a mere fragment—only the limb of a law. It belongs to the rule which fixes the rights of devisees or legatees under a will. That rule in whatever form it may be expressed is, without any straining of language, a command of the legislator. That “every person named by a testator in his last will and testament shall be entitled to the property thereby given him” is surely a command creating rights and duties. ”

“ We may sympathize cordially with Kohler’s exhortation to work for a universal history of law without yet perceiving clearly what the stages of this universal history are going to be. We may acknowledge the enormous importance of Morgan’s and Bachofen’s discoveries without feeling bound to recognize that all tribes and nations of the earth have gone substantially through the same forms of development in respect of marriage custom, and without admitting that the evidence for a universal spread of group-marriage has been produced. ”

“ In the eighteen years which elapsed between 533 and the composition of the Getica of Jordanes, great events, most disastrous for the Romano-Gothic monarchy of Theodoric, had taken place. It was no longer possible to write as if the whole civilization of the Western world would sit down contentedly under the shadow of East Gothic dominion and Amal sovereignty. And, moreover, the instincts of Jordanes, as a subject of the Eastern Empire, predisposed him to flatter the sacred majesty of Justinian, by whose victorious arms the overthrow of the barbarian kingdom in Italy had been effected. ”

“ As one of the greatest leaders of the movement, Niebuhr, pointed out, the fact of being a witness of such struggles and catastrophes as the American Revolution, the French Revolution, the Napoleonic Empire and the national reaction against it, taught every one to think historically, to appreciate the importance of historical factors, to measure the force not only of logical argument and moral impulse, but also of instinctive habits and traditional customs. ”

“ If we refuse to accept this position we must abandon the attempt to frame a general definition of law and its dependent terms, or we must content ourselves with saying that law is one thing in one state of society and another thing in another. On the ground of clearness and convenience Austin’s method is, we believe, substantially right, but none the less should the student of jurisprudence be on his guard against such assumptions as that legislation is a universal phenomenon, or that the relation of sovereign and subject is discernible in all states of human society. ”

“ Customs then are the same thing as laws to the historical jurist, and his business is to trace the influences under which they have grown up, flourished and decayed, their dependence on the intellectual and moral conditions of society at different times, and their reaction upon them. The recognized science—and such it may now be considered to be—with which historical, or more properly comparative, jurisprudence has most analogy is the science of language. Laws and customs are to the one what words are to the other, and each separate municipal system has its analogue in a language. ”

“ What men complain of is the practical hardship and inconvenience of some rule or process of law. They know, for example, that the law of real property is exceedingly complicated, and that, among other things, it makes the conveyance of land expensive. But the technical law of real property, which rests to this day on ideas that have been buried for centuries, has nevertheless the qualities we have named. So too with the law of procedure as it existed under the “science” of special pleading. ”

“ All this we can now perceive to have no relation to history, but at the time it may have made the subjugation of the Roman less bitter to feel that he was not after all bowing down before a race of barbarian upstarts, but that his Amal sovereign was as firmly rooted in classical antiquity as any Julius or Claudius who ever wore the purple. ”

“ But it is exceedingly difficult to frame a positive definition of right which shall not introduce some term at least as ambiguous as the word to be defined. T. E. Holland defines right in general as a man’s “capacity of influencing the acts of another by means, not of his own strength, but of the opinion or the force of society.” ”

“ Hence we perceive two currents of tendency in the Getica. On the one hand, as a transcriber of the philo-Goth Cassiodorus, he magnifies the race of Alaric and Theodoric, and claims for them their full share, perhaps more than their full share, of glory in the past. On the other hand he speaks of the great anti-Teuton emperor Justinian, and of his reversal of the German conquests of the 5th century, in language which would certainly have grated on the ears of Totila and his heroes. ”

“ Theologian, tutor, university reformer, a great master of a college, Jowett’s best claim to the remembrance of succeeding generations was his greatness as a moral teacher. Many of the most prominent Englishmen of the day were his pupils and owed much of what they were to his precept and example, his penetrative sympathy, his insistent criticism, and his unwearying friendship. Seldom have ideal aims been so steadily pursued with so clear a recognition of practical limitations. ”

“ Each society has its own system of laws, and all the systems, so far as they are known, constitute the appropriate subject matter of jurisprudence. The jurist may deal with it in the following ways. He may first of all examine the leading conceptions common to all the systems, or in other words define the leading terms common to them all. Such are the terms law itself, right, duty, property, crime, and so forth, which, or their equivalents, may, notwithstanding delicate differences of connotation, be regarded as common terms in all systems. ”

“ In another sense it is pure science, the investigation of all consciously formulated and actually practised rules, and of their conditions and foundations, in fact of the entire social life of existing and bygone nations, without a knowledge and understanding of which a knowledge and understanding of law as its outcome is, of course, impossible.” In this sense jurisprudence is a part of ethnology and of the comparative history of culture. But in order to grapple with such a tremendous task comparative jurisprudence has not only to call to help the study of scattered ethnological facts. ”

“ Justinian was engaged in three great foreign wars, two of them of his own seeking, the third a legacy which nearly every emperor had come into for three centuries, the secular strife of Rome and Persia. The Sassanid kings of Persia ruled a dominion which extended from the confines of Syria to those of India, and from the straits of Oman to the Caucasus. The martial character of their population made them formidable enemies to the Romans, whose troops were at this epoch mainly barbarians, the settled and civilized subjects of the empire being as a rule averse from war. ”

“ As a review of the discretion of stipendiary magistrates in committing cases for trial, the intervention of the grand jury is in most cases superfluous; and even when the committing justices are not lawyers, it is now a common opinion that their views as to the existence of a case to be submitted to a jury for trial should not be over-ridden by a lay tribunal sitting in private, and in this opinion many grand jurors concur. But the abolition of the grand jury would involve great changes in criminal procedure for which parliament seems to have no appetite. ”

“ But its conception of laws is exceedingly favourable to the growth of a historical philosophy, the results of which have a value of their own, apart altogether from the character of the first principles. Such, for instance, is Savigny’s famous examination of the law of possession.
There is only one other system of law which is worthy of being placed by the side of Roman law, and that is the law of England. No other European system can be compared with that which is the origin and substratum of them all; but England, as it happens, is isolated in jurisprudence. ”

“ Direct influence exercised by virtue of one’s own strength, physical or otherwise, over another’s acts, is “might” as distinguished from right. When the indirect influence is the opinion of society, we have a “moral right.” When it is the force exercised by the sovereign, we have a legal right. It would be more easy, no doubt, to pick holes in this definition than to frame a better one.2
The distinction between rights available against determinate persons and rights available against all the world, jura in personam and jura in rem, is of fundamental importance. ”

“ It was not codification but consolidation, not remoulding but abridging. He made extracts from the existing law, preserving the old words, and merely cutting out repetitions, removing contradictions, retrenching superfluities, so as immensely to reduce the bulk of the whole. And he made not one set of such extracts but two, one for the jurist law, the other for the statute law. ”

“ There is no such difference except in the case of what is properly called “judicial legislation”—wherein an absolutely new rule is added for the first time to the law. The recognition of a custom or law is not necessarily the beginning of the custom or law. Where a custom possesses the marks by which its legality is determined according to well understood principles, the courts pronounce it to have been law at the time of the happening of the facts as to which their jurisdiction is invoked. ”

“ Value of Jury System.—The value of the jury in past history as a bulwark against aggression by the Crown or executive cannot be over-rated, but the working of the institution has not escaped criticism. Its use protracts civil trials. The jurors are usually unwilling and are insufficiently remunerated; and jury trials in civil cases often drag out much longer and at greater expense than trials by a judge alone, and the proceedings are occasionally rendered ineffective by the failure of the jurors to agree. ”

“ Maine is undoubtedly right in connecting the theories of Bentham and Austin with the overwhelming activity of legislatures in modern times. And formal legislation, as he elsewhere shows, comes late in the history of most legal systems. Law is generated in other ways, which seem irreconcilable with anything like legislation. Not only the tax-gathering emperors of the East, indifferent to the condition of their subjects, but even actively benevolent governments have up to a certain point left the law to grow by other means than formal enactments. ”

“ The application of the historical method to law has not resulted in anything like the discoveries which have made comparative philology a science. There is no Grimm’s law for jurisprudence; but something has been done in that direction by the discovery of the analogous processes and principles which underlie legal systems having no external resemblance to each other. But the historical method has been applied with special success to a single system—the Roman law. The Roman law presents itself to the historical student in two different aspects. ”

“ Opinion in England has hitherto been against subjecting a man to serious punishment as a result of conviction before a judge sitting without a jury, and the judges themselves would be the first to deprecate so great a responsibility, and the Criminal Appeal Act 1907, which constituted the court of criminal appeal, recognized the responsibility by requiring a quorum of three judges in order to constitute a court. The same act, by permitting an appeal to persons convicted on indictment both on questions of fact and of law, removed to a great extent any possibility of error by a jury. ”

“ Every positive law is “set by a sovereign person, or sovereign body of persons, to a member or members of the independent political society wherein that person or body is sovereign or superior.” Though possibly sprung directly from another source, it is a positive law, by the institution of that present sovereign in the character of a political superior. The question is not as to the historical origin of the principle, but as to its present authority. “The legislator is he, not by whose authority the law was first made, but by whose authority it continues to be law.” ”

“ The connexion of laws with each other as principles is properly the subject matter of historical jurisprudence, the ideal perfection of which would be the establishment of the general laws governing the evolution of law in the technical sense. Austin’s definition looks, not to the authorship of the law as a principle, not to its inventor or originator, but to the person or persons who in the last resort cause it to be obeyed. If a given rule is enforced by the sovereign it is a law. ”

“ Jouffroy’s claim to distinction rests upon his ability as an expositor of other men’s ideas. He founded no system; he contributed nothing of importance to philosophical science; he initiated nothing which has survived him. But his enthusiasm for mental science, and his command over the language of popular exposition, made him a great international medium for the transfusion of ideas. He stood between Scotland and France and Germany and France ”

“ By a codification we understand the reduction of the whole pre-existing body of law to a new form, the re-stating it in a series of propositions, scientifically ordered, which may or may not contain some new substance, but are at any rate new in form. If he had, so to speak, thrown into one furnace all the law contained in the treatises of the jurists and in the imperial ordinances, fused them down, the gold of the one and the silver of the other, and run them out into new moulds, this would have been codification. ”

“ On the one hand, classical antiquity itself proved to be a rather thin layer of human civilization hardly sufficient to conceal the long periods of barbarism and primitive evolution which had gone to its making. On the other hand, unexpected combinations in regard to family, property, social order, were discovered in every corner of the inhabited world, and our trite notions as to the character of laws and institutions were reduced to the rank of variations on themes which recur over and over again, but may be and have been treated in very different ways. ”

“ It seeks the explanation of institutions and legal principles in the facts of history. Its aim is to show how a given rule came to be what it is. The legislative source—the emanation of the rule from a sovereign authority—is of no importance here; what is important is the moral source—the connexion of the rule with the ideas prevalent during contemporary periods. This method, it is evident, involves not only a comparison of successive stages in the history of the same system, but a comparison of different systems, of the Roman with the English, of the Hindu with the Irish, and so on. ”

“ Function of Jury.—The jurors were originally the mouthpiece of local opinion on the questions submitted to them, or witnesses to fact as to such questions. They have now become the judges of fact upon the evidence laid before them. Their province is strictly limited to questions of fact, and within that province they are still further restricted to matters proved by evidence in the course of the trial and in theory must not act upon their own personal knowledge and observation except so far as it proceeds from what is called a “view” of the subject matter of the litigation. ”

“ Even in a mature system like that of England the great bulk of legal rules is hidden under forms which disguise their imperative quality. They appear as principles, maxims, propositions of fact, generalizations, points of pleading and procedure, and so forth. Even in the statutes the imperative form is not uniformly observed. It might be said that the more mature a legal system is the less do its individual rules take the form of commands. The greater portion of Roman law is expressed in terms which would not misbecome scientific or speculative treatises. ”

“ We repel the same statement applied to the law of nature, because it resembles in so many of its most striking features—in the certainty of a large portion of it, in its terminology, in its substantial principles—the most universal elements of actual systems of law, and because, moreover, the assumption that brought it into existence was nothing else than this, that it consisted of those abiding portions of legal systems which prevail everywhere by their own authority. ”

“ His recognition of such different systems of life in communities occupying different stages in the progress of civilization led to his proposal of what he called a “political economy of nations.” This was a protest against the practice of taking the exceptional state of facts which exists, and is indeed only partially realized, in a small corner of our planet as representing the uniform type of human societies, and ignoring the effects of the early history and special development of each community as influencing its economic phenomena. ”

“ Lord Cowper, on the other hand, described them as “men sometimes illiterate and frequently bigoted and prejudiced.” The truth is that the justices of the peace perform without any other reward than the consequence they acquire from their office a large amount of work indispensable to the administration of the law, and (though usually not professional lawyers, and therefore apt to be ill-informed in some of their decisions) for the most part they discharge their duties with becoming good sense and impartiality. ”