The history of law 9780598554840

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THE HISTORY OF

LAW BY

WILLIAM SEAGLE

TUDOR PUBLISilING GO, N:i.:w · ¥.oRK-1

946"-

Copyright 1941.by Alfred A. Knopf, Inc. All rights reseroed. No part -of this book may be reproduced in any form without permission in writing from -the publisher, except by a reviewer who may quote brief passages in a revi~w to be printed in a magazine or newspaper. Manufactured in the United States of America.

TUD:'J:R. EDITfON

1946

Ffr;i..p.ul,lislu:d t;Y:The Qt.est for Law

TO .Nathan R. Margold

TABLE OF CONTENTS

INTRODUCTION

ix

BOOK I: LAW CHAPTER I. 1

2

3 4

5 6

7

THE ELEMENTS OF LAW

The Nature of Law Law and I ts Rivals Law and Scientific Law The Sources of Law and the Sources of Confusion Law and the Rules of Law Law and the State The Cultivation of Methodical Ignorance

3 3

7 13

15 18 20

23

BOOK II: PRIMITIVE LAW CHAPTER CHAPTER CHAPTER CHAPTER

II. III. IV. V.

CUSTOM IS KING UP FROM THE BLOOD-FEUD THE PEACE OF THE KINDRED THE ORIGINS OF PROPERTY

27 36 43 50

BOOK III: ARCHAIC LAW CHAPTER VI. CHAPTER VII.

LAW IN THE MAKING THE KING'S PEACE

CHAPTER VIII. THE STRUGGLE FOR THE JUDICIAL DUEL CHAPTER IX. THE ARCHAIC CODES [ V]

59

70 84 102

vi CHAPTER X. CHAPTER XI.

Contents

LAW AND RELIGION

I

THE GRANDEUR THAT WAS RO:MAN LAW

130

17

BOOK IV: THE MATURITY OF LAW CHAPTER XII. THE RISE OF LEGAL SYSTEMS 1 The" Spirit" of Legal Systems 2 From Twelve Tables to a Corpus Juris 3 The Ghost Story of Roman Law 4 The Cult of the Common Law 5 The Assimilation of Western Law

151

CHAPTER XIII.

THE QUEST FOR EQUITY

180

CHAPTER XIV.

THE LAW OF NATURE

196

CHAPTER XV.

THE RULE OF LAW

209

CHAPTER XVI.

THE MONOPOLY OF. FORCE

227

1

The Public Criminal Law

Belling the Cat 3 N ulla Prena Sine Lege 4 From Criminal Law to Criminology 2

CHAPTER XVII.

THE OMNIPOTENCE OF CONTRACT

From Status to Contract 2 The Foundations of Capitalism 3 The Socialization of Private Law 1

CHAPTER XVIII. THE AGE OF CODIFICATION

227 232 240 245

252 252 265 272

277

BOOK V: THE VANISHING-POINTS OF JURISPRUDENCE CHAPTER XIX. 1

THE ABSOLUTE REIGN OF LAW

The Genesis of a" Higher" Law

299 2 99

Contents

vii

John Marshall and the Triumph of Judicial Supremacy 3 A Government of Laws 4 Nine Old Men 2

CHAPTER XX.

ADMINISTRATIVE LAW

The Law Nobody Knows 2 Droit Administratif 3 The New Equity 4 Administrative Justice and the Supremacy of Law 1

THE LAW OF NATURE AND OF NATIONS 1 The Law of War and Peace 2 Hugo Grotius and His Successors 3 International Law 4 The Peace of Nations

309 3 14

318

326 326 33° 336

34 1

CHAPTER XXI.

349 349 354 358 363

CONCLUSION: JUSTICE ACCORDING TO LAW

370

NOTES

375

BIBLIOGRAPHIES

427

INDEX

follows page

439

INTRODUCTION "

• THE SUllJECT matter

of law is somewhat transcendant, and too

high for ordinary capacities. . . ." - SHEPP.ARDS TOUCHSTONE

T

who remarked: "Give me the making ohhe songs of the people and I care not who makes their laws," was propounding a dubious theory. It requires us to believe that the makers of "I Want to Go Back to My Old Kentucky Home," " I am Always Chasing Rainbows," " Broadway Blues," or " A Sentimental Sandwich for Two " really affect the destinies of a nation more than the makers of the songs entitled " Chap. 136 of the Laws of 192 1 " (popularly known as the Income Tax Law) , " Chap. 531 of the Laws of 1935 " (popularly known as the Social Security Act), or "Chap. 372 of the Laws of 1935" (popularly known as the Wagner Act). Almost everybody except the Robinson Crusoes on desert islands would be inclined to agree that the law has immense practical importance. It deals in a very immediate and emphatic way with the relations of men. Few indeed are the individuals so fortunate that they are able to go through life without some experience with the law. It afflicts millionaires and WP A workers, farmers and city slickers, merchants and manufacturers, newspapers, publishers, and even novelists, poets, and biographers, who have to bother with signing contracts, and have to pay at least some attention to the perilous law of libel. It would seem fair to assume therefore that all sorts and conditions of men might be interested in an introductory book on law, but there still remains the difficult question what sort of book should be written for them. There are few subjects more involved in mumbo-jumbo and shrouded in mysteries created by its professional votaries. The writer of Sheppard's Touchstone is quite typical of a traditional attitude. Now, to the layman it may seem that he would like a book on law that would explain the origin and present-day working of various rules of law by which he has been victimized. He may want to know what sorts of contracts are required to be in writing by the HE MAN

[ix]

X

Introduction

Statute of Frauds, how many witnesses are necessary to make a will, what interest his wife will have in his estate on his death, how to get a divorce, what constitutes such a constructive eviction as will enable him to break a burdensome lease. In short, he may want a book that could well be entitled_" Every Man His Own Lawyer." But such a book might be useless if the reader did not want to get rid of his wife or break his lease, and a little reflection will show that it would also be impossible to write as well as dangerous, dull, and futile if written. It would be impossible certainly, within the compass of a single volume, because rules of law are altogether too multifarious. Of making laws there is no end, and judicial decisions have poured from the presses since the invention of printing with even more frightening regularity. Treatises on particular branches of law often run to a depressing number of volumes, and statute books can hardly be propped up comfortably for reading in bed. Developed systems of law at least deal with nothing less than the whole of life, and the law is the one art which, unfortunately, has no subject matter of its own. The jurist must, with complete sang-froid, be prepared to face any problem, for any subject matter whatsoever may come to be deemed fit for legal regulation. Moreover, rules of law are in a state of constant flux. There is no end of unmaking laws: a stroke of the legislator's pen, and a whole section of a law library becomes so much debris. It is even more obvious that nothing could be more dangerous than for every man to try to be his own lawyer. If you get into trouble, you had better see a real lawyer, whether in a sumptuous downtown suite or at the Legal Aid Society, and pray at the same time that he is smart and honest, a veritable Abe Lincoln. If he is also an intellectually honest lawyer, he will probably begin by telling you that even after arduous research he cannot be sure what rule of law will govern your case. There has for centuries been inculcated in the layman's mind the belief that rules of law, which presumably exist for his protection, are definite and certain; but the most jealously guarded of professional trade secrets is that rules of law are frequently indefinite and uncertain, for othenvise there would be no lawsuits, and lawyers could hardly make even a meagre living. The dullness of particular rules of law is less apparent perhaps than their futility. While the laws governing the abatement of nuisances or the sale and transfer of real estate hardly seem fascinating, the laws governing murder, manslaughter, kidnapping,

Introduction

xi

and rape make the headlines. But, apart from the human-interest element in these crimes, what attracts the newspaper-reader is not their legal concepts, but the course of the criminal trial itself, which is not only imposing but mysterious. In Crainquebille Anatole France has told the beguiling tale of the poor costermonger who was so bewildered when he was hailed before the bar of justice upon the false accusation that he had insulted a policeman. What bewildered Crainquebille was not the accusation against him, but the highly complex ritual of justice to which he was subjected. A rule of law may itself be of little moment, but nothing is more difficult to understand than its operation. Into every rule of law is imported the whole panoply of legal administration the inherited techniques of the law, the system of procedure by which it is administered, the traditions of the law and the lawyers - in short, the whole awe-inspiring machinery of the judicial process. But while no particular rule of law is in itself important, it is quite otherwise with the general processes by ·which rules of law have grown. And of course no legal work can be written without mentioning hundreds of rules of law if only by way of illustration. It is necessary, too, to take note of branches of law, such as private law, criminal law, constitutional and administrative law, and, finally, international law, for these congeries of rules are basic and show the continuous expansion of the law's domain. The impossibility of coping with rules of law has driven some writers to the opposite extreme of almost ignoring them altogether. There have been composed, primarily for the use and benefit of beginners in law schools, " first " books of jurisprudence, which, no matter how excellent in themselves, often prove to be the last. These works, which bear some such title as " The Elements of Jurisprudence," concern themselves neither with particular legal rules nor with particular legal systems but contain in successive chapters expositions of the basic concept of law itself and an analysis of the forms of law which are more or less common to all legal systems. As chemists deal with the basic elements, these writers isolate the elements of law, which they find to be such entities as custom, equity, judicial precedent, and legislation. Now, while an understanding of the elements of law is essential to the beginner, the inescapable tendency of these writers is to concentrate upon the minutia! of the various forms of law. We are told, for instance, how in various legal systems a custom is proved before a judicial tribunal, when precedents are deemed binding, and what

xii

Introduction

requisites are necessary to the enactment of a statute. Even more depressing, however, is the fact that the primers of jurisprudence, since they deal solely with the formal sources of law rather than the fundamental mechanisms of its development, have a peculiarly static and colourless character. They exhibit the law, not in action, but in repose, and are thus devoid of historical incident and movement. It is clear that an introductory book on law must be primarily some sort of general history. All other popularizations of arts and sciences have-.been organized as chronological accounts of their development in different civilizations. The pattern is familiar: from the preliterate period the popularizer proceeds to Egypt, Mesopo· tamia, and the Orient, thence to ancient Greece, Rome, and the Middle Ages, and comes to a full pause as he reaches the glories of Western civilization. The emphasis may be institutional or biographical, but the journey is along the well-trodden path. A legal history upon similar lines would deal successively with various " systems " of law from ancient to modern times, but such a book would be as undesirable as an" Every Man His Own Lawyer," and for many more reasons. While the rules of any mature legal system are staggering in their infinite variety, the rules of one system are very frequently the same as in other legal systems. It is as true of the ancient as of the modern legal systems that they differ far more in their procedural forms than in their substantive law. Upon similar levels of social and economic development legal systems have similar fundamental characteristics. Thus an account of law by systems would necessarily result in an endless amount of repetition. Moreover, our knowledge of the law of most of the countries of the ancient world is so extremely fortuitous and fragmentary that it is hardly possible to speak of their law in terms of a "system." Surprisingly little is known of the law of ancient Egypt; there survive accounts of a few criminal trials, a few contracts and wills, and an edict of Harem Heb relating to extortion by royal officials. Babylonian, Assyrian, and Hittite law offers a rich store, but not enough to make it possible to write a chronological account of the history of law in Mesopotamia. The early state of the law of even Greece and Rome is shrouded in obscurity. The successive treatment of various systems is particularly undesirable because it is a method that is purely chronological and makes it impossible to economize space by aligning various bodies of law on the basis of their levels of development. A later body of law is not necessarily

Introduction

xiii

more complex. The law of Babylon of two millenniums before Christ was far more advanced than the law of the Hebrews, Greeks, and Romans a millennium and a half later. The law of the German tribes of the early Middle Ages was also more primitive than the law of many of the peoples of classical antiquity. Our haphazard knowledge of ancient law might indeed make avoidable a good deal of repetition if it was treated by systems, but this happy result would be entirely accidental. It would certainly no more convey an idea of the increasing complexity of legal development than an analysis of the elements of jurisprudence. The biographical approach to law presents strong temptations. vVhile the law, of course, has its great men, and a book could undoubtedly be written about them, it would be undesirable as an introduction to law. Needless to say, not all legal institutions can be associated even primarily with the name of one man, and a good deal of institutional background is necessary for the understanding of the accomplishments of the heroes of the law. Moreover, the long midnight hours the great jurists of \Vestern civilization have spent over fat legal tomes have made their careers rather colourless from some points of view, although they have sometimes been compelled to display unmistakable courage in facing an angry king or prelate or, what perhaps is worse, a popular legislature. To be sure, all this is not to say that any book on law can be written that fails to mention at least Bartolus, Cujas, or Pothier, Coke or Blackstone, Gratian, Grotius, or John Marshall. But the really great name in the history of law will always remain John Doe. There remains, indeed, only one way of writing a general legal history. When the laws of various peoples are compared, they exhibit great differences of technical form, but at analogous levels of social and economic development the basic legal institutions are very similar. An analysis of the leading characteristics and fundamental mechanisms of legal systems in various phases of development upon a comparative basis will show that there are only a few basic types of law. While a strictly chronological history of law is impossible in the compass of a single volume, the job can be done as a form of historical typology upon an ideological basis. In less pompous terms, this is purveying history by sample. Without asserting that every people's legal system has gone through the same phases of development, or that there is a universal pattern of legal evolution, it should be possible to sketch the growth of law from the point of view of increasing complexity.

xiv

Introduction

Almost two decades ago a great legal pundit, Sir Paul Vinogradoff, who was Corpus Professor of Jurisprudence in Oxford University, projected a work which was to be a study of types of law, and to be called Outlines of Historical Jurisprudence. He conceived the basic types of law to be the law of the tribe, the city, the church, the contractual association, and the collecti:vist organization. At the time of his death in the midst of his labours, he had published two volumes, one a sort of" first book of jurisprudence" and an exposition of tribal law, and the other an account of the law of the Greek city. Even the two volumes published, however, make it evident that the scheme was being badly executed. Its very scale was inconsistent with the announced intention of studying types of law. If city law is a type of law, it could hardly be adequately treated by taking into consideration only one city. The volume on the Greek city was indeed no more than a detailed survey of the rules and technicalities of the law of Athens. As a matter of fact, however, city law is not a distinct tvpe of law. All law in its origin was city law, for law first developed in compact and settled communities. The combination of the law of the city with that of the countryside was affected by the process of political centralization, but the legal institutions of the city have tended to impose themselves also on the countryside. The law of the church, which Vinogradoff intended to examine only in medi~val Europe, is even less a distinct type of law. It represents a phase of the law's development in many civilizations, in which law comes to be dominated by religious influences and is administered by priests; in other words, it is secular law in priestly hands. The law of the contractual association is the civil law itself, whose primary purpose is to regulate the forms of economic enterprise, and while it assumes major importance in all advanced legal systems, it does not constitute the only component of such systems. The law of the " collectivist organization " is either no law at all or "socialized" law, which is only a phase of the civil law's development. There are really only three types of law that reveal clearly distinguishable aspects, and these may be called primitive, archaic, and mature law, although the distinctions between even archaic and mature law are of degree rather than of kind. The first phase of the maturity of law may be described as "strict" law, which still clearly suggests its immediate background. There are, of course, always survivals, and the lines of demarcation may be shadowy and fluid. Primitive law, as we shall see, would far better be

Introduction

xv

called primitive custom, for it represents the pre-legal age, and is the " law" of those preliterate peoples who have not yet developed courts but have nevertheless recognized social rules and have discovered means of coping with social conflicts. The law of those preliterate peoples who have court organizations and officialdoms is better spoken of as archaic. The concept of archaic law is thus not based upon the use of writing, but upon the appearance of courts, the basic institution of every legal system. Archaic law is the law not only of almost all ancient peoples but also of some African tribes and the primitive Germans who enter upon the stage of history with the decline of the Roman Empire. Archaic law becomes rapid~y more and more officialized. Mature law, however, is law that has been not only officialized but professionalized. It is the creation primarily not of court officials but of a class of professional men. In other words, it is marked by the appearance of lawyers. All the complex characteristics of mature legal systems are conditioned by the dominance of professional lawyers. Primitive, archaic, and mature law each represents the hegemony of a particular economic system. Primitive law is the typical law of hunters and herdsmen who have as yet effected only the most rudimentary forms of political organization. Archaic law is the law of feudalism and slavery - of societies that derive their livelihoods from agriculture and perhaps handicrafts and commerce. Mature law is the law primarily of modern capitalism, but its beginnings are already apparent in ancient Greece and Rome. The period of the Roman Empire especially marked the emergence of a system of quasi-capitalism. A great German jurist, Rudolf von Jhering, conceived of law in terms of a struggle. " The life of the law," he observed, " is a struggle - a struggle of nations, of the state power, of classes, of individuals." Law, indeed, has meaning only in terms of conflict, and it represents humanity's effort at self-domestication. But, alas, as we shall see, law attempted to deal with force and violence by means which in a rational world will some day be regarded as strange as well as ignoble. For the law never really attempted to resolve the conflicts of society but only to alleviate them by laying down rules under which they might be fought.

THE HISTORY OF LAW

BOOK I LAW

prepared candidate in an English ar American law school will hesitate to define an estate in fee simple; on the other hand, the greater a lawyer's opportunities for knowledge have been, and the mare time he has given to the study of legal principles, the greater will be his hesitation in face of the apparently simple question, "No

TOLERABLY

What is Law? " -

SIB FREDERICK POLLOCK

CHAPTER I

THE ELEMENTS OF LAW 1.

T

THE NATURE OF LAW

HE QUEST for law has been proceeding for thousands of years. It is supposed to be the most precious heritage of Western civilization. We are told indeed by an Italian legal philosopher that "the Aryan is a juridical race." 1 We dream of " a government of laws, not men." But at the very outset of any approach to the law we discover a rather astounding and embarrassing fact: it is said to be impossible to say exactly what law is. The question what is law is the dark cat in the bag of jurisprudence. A lawyer could not answer the question - even for a fee! It is only necessary to assemble the very briefest anthology of definitions of law to realize this. Many " definitions " of law are simply wonderful exercises in tautology. The law has frequently been declared to be simply the embodiment of either religion, reason, force, custom, morality, or ethics. But if the law is unknown, then one unknowable has simply been substituted for another. A German professor once even explained to a class of law students [ 3]

4

BooK

I. Law

that" die Rechtswissenschaft ist die Wissenschaft vom Recht" that is, that legal science is the science of law. 2 It is really remarkable that the following should all be offered as definitions of law. Apparently jurists and philosophers reserve the right to give words any meaning they choose. Thus: Demosthenes: "That is law, which all men ought to obey for many reasons, and especially because every law is an invention and gift of the Gods, a resolution of wise men, a corrective of errors intentional and unintentional, a compact of the whole state, according to which all men who belong to the state ought to live." 8 Cicero: "Law is the highest reason implanted in nature, which prescribes those things which ought to be done, and forbids the contrary." 4 Hooker: "A Law is properly that which Reason in such sort defineth to be good that it must be done." n Grotius: "A rule of moral action obliging to that which is right." 0 Blackstone: "A rule of civil conduct prescribed by the supreme power in a state, commanding what is right, and prohibiting what is wrong." 7 Amos: "A command proceeding from the supreme political authority of a state and addressed to the persons who are the subjects of that authority." 8 Jhering: " The sum of the rules of constraint which obtain in a state." 0 Gareis: " Law in the objective sense of the term is a peaceable ordering of the external relations of men and their relations to each other." 10 Tolstoi: " Rules established by men who have control of organized power and which are enforced against the recalcitrant by the lash, prison, and even murder." 11 Russian Penal Code, Article 590: "Law is a system of social relationships which serves the interests of the ruling classes and hence is supported by their organized power, the state." The eminent English jurist Sir Frederick Pollock, who has been quoted at the head of this chapter, is not alone in his confusion. Similar confessions have been made by no less eminent jurists of many nations.and climes. "At the beginning and the end of the study of jurisprudence," said the illustrious German jurist Gierke, " there stands as a matter of course the question what is law." ii The German philosopher Kant observed: "The jurists still seek a definition of their concept of law," 13 although he was bold enough

The Elements of Law

5

to supply a-definition himself. And the American Dean Pound has recently observed: "From the beginning the question, What is Law? - the problem of the nature of law - has been a battleground of jurisprudence. More than one important book of jurisprudence has been wholly occupied with this question. But in recent times there has been a growing impatience with it and disinclination to engage in the kind of argument which it involves. Bluntschli compared it to Pilate's question, 'What is truth?' and many who propound it today, like Pilate, wait not for an answer." a While formerly the definition of law was admitted to be difficult, it is now much more frequently declared to be unnecessary or impossible. It is dismissed as a dispute about words. " Obviously," remarks one impatient jurist, who does not believe that nature abhors a vacuum, " law can never be defined," and the purpose of "obviously" is obviously to forestall any questions. Another realist asks: " But what is the law," and he answers: "A complete definition would be impossible and even a working definition would exhaust the patience of the reader." 15 Others speak of establishing not a definition but simply a " centre," a " core " for discussion. It is suggested that a definition need be neither" true " nor " false " since it is simply a " tool." 18 Now, the law is not unique in failing to supply a glib and ready answer f~r the fundamental problem of its science. £sthetics, for instance, is in almost as pitiful a state. What is poetry? What is art? Art has sometimes been defined as the achievement of " significant form," which may help to explain why ~sthetic speculation is so unpopular. Really to know what we are talking about is not perhaps always a first requisite of discussion. But there is this important difference in talking about the nature of law. Nobody goes to jail for being unable to say why a painting by El Greco or Matisse, as well as the drawings of the cave men, are art. But it does seem somewhat strange and inappropriate that a man should suffer the inconvenience of being hanged or compelled to pay an unjust debt if we cannot say what law is. The trouble with most definitions of terms is that they begin with those terms themselves. But often the root of the confusion is the conception of the function of definition itself - in other words, the definition of definition. There is no doubt that " the patience of the· reader" would be exhausted by any attempt to exhaust the complexities of such a phenomenon as law. But the function of all definitions is merely to state the essence of a subject matter, not to describe it in all its infinite variety. Every entity has

6

BooK I.

Law

much in common with every other entity. A chair, like a horse, has four legs. A definition is no more than a" centre" or" core." But, while a nominal definition'may be neither" true" nor" false" since it is adopted arbitrarily for purposes of classification, a real definition must be a genuine proposition. Yet even if a definition is to be regarded merely as a working tool, it will not do to define a subject in such terms that they will lead to fantastic results. It will not do, for instance, to say that the law has to do with cabbages, or even with cabbages and kings. It seems strange that the essence of such an everyday phenomenon as law should be beyond the grasp of common understanding. The law deals with human conduct, which Matthew Arnold calculated upon some unknown mathematical basis to constitute three fourths, rather than two thirds or seven eighths, of life. To get a clear grasp of the nature of law it would thus seem to he necessary only to distinguish it from other categories relating to human conduct, which are religion, science, morals, and custom. The law, of course, has much in common with all these, but it should also have at least one characteristic which all of them lack. Moreover it should be possible to discover this characteristic without exhausting each one of the related categories. It is-the function of legal history to describe the process as the result of which a consciousness of " law " and " lawfulness" arose in human n;i.inds. It is the function of a definition, however, to do no more than to state the result of this process of differentiation. If enough public excitement could be aroused to take a Gallup poll, it would probably show that laymen would have no difficulty in defining law. Only jurists who have had a great deal of training would be. discovered to have any doubts. The layman who has had any experience with the law very soon gets a pretty good notion of what it is all about. "There is plenty of law," some immortal has said, " at the end of a nightstick." Carlyle's definition of laissez faire economics as anarchy plus a constable would probably serve the layman as a definition of law. To think of law is to think of policemen and sheriffs, judges and jailers, lawgivers and lawtakers (the humble citizen) , and to reflect that a large part of the progress of humanity has consisted in the substitution of such instrumentalities as the guillotine, the electric chair, and the lethal chamber for the noose and the axe. Force looms large indeed in all legal experience, and it is this reliance upon force that distinguishes the legal mode of regulating conduct from all competing modes. Since we speak of the majesty of the law, and

The Elements of Law

7

suppose that law has a great deal to do with justice, its constant association with force seems rather embarrassing. Hence it must be redeemed and made respectable by restricting its use to politically organized government. In the body politic force is supposed to be held in trust. Stated in more general and juristic terms, law is a mode of regulating conduct by means of sanctions imposed by politically organized society. Law is " normative"; that is, it prescribes rather than describes. But it not only indicates the range of allowable conduct; it is imperative in form and content. This imperative character it possesses by virtue of its sanctions, which are threats of consequences in case of disobedience. Yet it is neither the imperative nor the nonnative aspects of law that give it its unique character. It is the fact that the sanction is applied exclusively by organized political government. This is what distinguishes law from religion, morals, and custom. 2.

LAW AND ITS RIVALS

FEW WOULD now agree with Demosthenes that " every law is an invention and gift of the Gods." But as we shall see when we come to examine archaic law, many still believe that the origin of most if not all legal institutions is to be traced to religion. The reason for this is that in certain phases of civilization the connection between law and religion was very close, and it is still an important factor in supporting the secular legal sanction. But it is easy to see that, while religion in its unorganized forms is a system of beliefs, in its organized forms it is a system of government. When priests have been ,called to rule they have behaved like all other rulers. Since the decline of religion it has been necessary to find a secular God for the purposes of the legal order. This God has been called the State. Probably the central difficulty in discussing law has always been its confusion with morals. The relation of these two categories has indeed been aptly called "the Cape Horn of Jurisprudence." 17 Law and morals have proved a very unhappy couple because, paradoxically, they have had far too much in common. Law and morals represent simply different modes of regulating conduct. Both moral and legal rules involve the application of canons of value: we all are told what we ought to do. The two types of rules differ only in respect of the nature of the sanction by which they are enforceable. Moral rules are left to " public opinion " and vice

8

BooK I. Law

soc1et1es. Legal rules involve pains and penalties applied by the organs of politically organized societies. Moreover, to a slight degree there has existed a verbal source of confusion. The word " right," which is commonly employed to denote a legal claim, has obvious moral implications. The question usually raised when law and morals are discussed is whether a legal right can be founded in immorality. In the terms of the classic jingle it is proclaimed that a legal right cannot be right if it is not right. There is implicit in this proposition, however, the assumption of some absolute standard of morality. But actually relativity inheres in both legal and moral rules. It should hardly be necessary, in view of the diligence of modern anthropologists, to state that morals are not universal. Morality approves acts which to many appear altogether wrong, and so does the law. To test one by the other is therefore to engage only in circular reasoning. ~-. However, even if conventional morality is meant, matters are not much improved. While the law on the whole tends to accord with the moral notions of the community, in many cases it departs from them. The law has been sometimes called a "minimum morality," 18 but there is no way of fixing this minimum: The jurists who, while recognizing the imperative ele111:ent in law, have also insisted upon the recognition of an ethical element have only made confusion worse confounded. The edict of a tyrant, or, what is sometimes more calamitous, a law passed by a modern legislature, is none the less law because it commands what is wrong. A law may be against the law of nature, the law of God, and the law of man, but it may nevertheless prove hard for a lawyer to get his client out of jail. The attempt to conceive law in both imperative and ethical terms is only another way of having one's cake and eating it, which is sometimes highly advantageous to a hard-pressed lawyer. The divergence between law and morality is naturally most marked when the law actually encourages immorality. 10 This may be unintentional and result from the inherent contradictions of certain types of legal prescriptions, particularly those governing sexual relations, but the result is none the less lamentable. Thus when the only recognized ground of divorce is adultery an unhappy spouse may be driven to the act in order to qualify. Similarly the law encourages lapses from female virtue when seduction under promise of marriage is made a crime. The most inexplicable confusion of moral values, however, is represented by the famous

The Elements of Law

9

Federal Mann Act, which makes it a felony to take a woman across a state line for immoral purposes. A man who with such a purpose in mind takes a woman from New York to Albany on the Hudson River night line commits no crime. But a man who for the same purpose takes a woman across to New Jersey on the ferry has violated the Federal law and made himself subject to ten years' imprisonment. Obviously the moral values have here been at least badly blurred. There are many good reasons for the divergence of law and morality. The moral sentiments may not be sufficiently well mobilized, or they may be changing. jfhe law aims at least at some degree of definiteness and certainty, while moral values are fluid and shifting. It may perhaps be ventured that at least in secular societies the moral claims which are most likely to secure recognition are those which are coupled with an economic interest. But there must also be taken into consideration the fact that legal machinery is too cumbersome to justify efforts to give legal sanction to highly delicate moral values. The struggle against the liquor evil in the United States may be remembered as a recent case in point. It is also plain that there is much law that has nothing to do with morals. The question, for instance, whether there shall be one, two, or three witnesses to a will or a deed is one that is in all respects morally indifferent. So, too, is the legal requirement that a driver shall keep to the right or left side of the road. Again no great moral issue would seem to be involved in the problem whether an innocent purchaser for value who acquires an article from a person who has no right to dispose of it shall be preferred as against a claim by the true owner. In some legal systems the latter has secured the return of his property; in others the purchaser for value has been protected. There are many situations in which both plaintiff and defendant are morally blameless, as when the defendant gets hurt in an accident. Yet one or the other may be made to bear the burden of risk. Attempts have been made to distinguish law from morals upon the basis of various criteria. Thus it has been argued that while morality is concerned with the inner life, law is concerned with the external relations of men. While this is true to a degree, the distinction is not an absolute one. It certainly has no support in the history of either law or morals. A stock illustration of a purely moral prohibition is the Biblical injunction against coveting a neighbour's wife. But an action to collect damages for alienation of affec-

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tions hardly amounts to more than that. It has always been possible to adduce evidence of inner states and intentions from external indications, and the law has frequently attempted to reach the conscience of the individual, as when it has interfered with freedom of thought: it was once treason to " imagine " the king's death. The only value of this type of distinction is that it reinforces the idea that not all moral values are capable of legal protection. The great difficulty with any form of ethical evaluation is the formulation of a standard. If the end of law may be perceived, ho:wever, it would seem possible to identify the law with some ethical criterion and thus to harmonize them. This type of thinking was inaugurated by Kant, who defined law as " the sum total of the conditions under which conflicting human wills are reconciled in action by the general principle of freedom." 20 He has been followed by many jurists of the nineteenth century, 21 which · it may be recalled was the great era of laissez faire. In such conceptions law is identified with liberty, but, as everybody knows, the law has often had precious little to do with it, although it is true to say that the striving to assure the legal limitation of power has been a tendency of law's evolution. Slavery has had a long history as a legal institution although it is the very antithesis of freedom. In such formulations law is simply conceived as that happy state which obtains when law reigns. Moreover we learn only what a particular jurist supposes to be the end or purpose of law. Liberty has not been the only end with which law has been identified. Other jurists have identified it with " human happiness," " equality," " progress," "solidarity," or other ideals that are entirely subjective. Custom is another method of regulating human conduct which presents much the same problem in relation to law as does morals. But there is at least one important difference between moral and customary rules. Customs are far less imperative in their force, for they do not normally imply ethical evaluations. To fail to distinguish law and custom is to confuse the normative with the existential. A custom is merely that which is habitually done in the community. It is distinguished by the element of convention, although naturally what is usual is likely to be thought right. Thus in China it is customary to use chopsticks in eating while in the West the knife and fork are preferred, but one method is not regarded as ethically superior to the other. Nevertheless the neglect of even such a customary social rule as that, for instance, which forbids eating peas with a knife may have dreadful consequences.

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It is, however not so much custom as "customary law" that has troubled jurists. Customs may exist with reference to other matters than social convention. They may govern relations which in the modem world are commonly treated as juridical. In relatively advanced communities the manner of selling a chattel, or. holding land, or collecting a debt may be governed by custom, and we shall see that in the most primitive communities, which have no forms of political organization, the whole sphere of social relations is almost entirely regulated by custom. Primitive "law" is customary law par excellence. Its only sanction lies in habit. With advances in political organization, however, customary law begins to break down rapidly, or rather its recognition begins to depend upon the sanctions of the political government. The" customs" are thus rapidly translated into "law" and thus enter upon a new existence. The origin of many rules of law in custom is long remembered. Land is still held in England by" the custom of Kent," 22 although the enforcement of this custom now depends upon enforcement by the courts. As long as the administration of justice has not yet been taken over by a professional class, it is easy to maintain the illusion that the law is still nothing but custom. The judges seem only to be declaring the popular custom rather than making law. 23 But long after law has become professionalized, it is common to continue to speak of customary law; then, however, the term has become hardly more than a synonym for "unwritten " law. Mankind has been governed by custom longer than it has lived under the reign of law. It is little wonder, then, that many jurists not only have tended to see in custom the most fertile source of law but have also regarded law itself as the spontaneous expression of the genius of a people, which develops naturally very much like language. Law therefore is always to be found, not made, and interference with nature's processes by legislation is both unnecessary and wicked. Political government can only sanction what nature has created, and it is for the legal historian to act as the humble discoverer of the works of nature. Thus curiously the historian of law perverts the truth of history. The "genius" of the same people produced the most divergent customs in different places, for most customs are highly local in character, as indeed they are bound to be, because of the conditions for their development. The genius of the people becomes entirely a myth where the administration of the law is vested in a priestly class or in professional lawyers. Moreover, the customs which secure recognition

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from the law-making organs are very often likely to belong not to the whole people but to the dominant class, which imposes them by force. 24 Nevertheless the champions of custom have had a valuable insight into the nature of law. The emphasis upon custom is really based upon a psychological theory of law. In minimizing if not disregarding the element of sanctions they have been led to stress a psychological element of recognition as the basis of law. If the members of a community recognize that certain acts give rise to definite claims, legal obligations may be said in a sense to exist although no organized public force is available to give them effect. In the words of the most important exponent of the psychological theory of law, the law is simply "a bilateral and imperative attributive emotion." 26 It is true that this " emotion " or " consciousness " of law may be almost all that law consists of at certain times -for instance, when a political revolution occurs, or even when government is weak. The sole support of public order then becomes the habitual psychological attitudes of the .community. But this is only to say ~hat law has broken down rather than that these attitudes are law. It is true, too, that if the millennium arrives and humanity achieves the all-but-perfect state, the law may be said to be no more than an "imperative-attributive emotion." But with the disappearance of constraint it would be far more accurate to speak of the disappearance of law. Pending the arrival of the millennium, it is already possible to see in societies that boast of the reign of law, and particularly with reference to settled intra-class relations, that it is very rarely necessary to resort to sanctions. The mere declarations of the judicial organs in the community are almost automatically respected by defendants who are not judgment-proof. Nevertheless the sanctions are always available and when necessary are invoked. The psychological theory of law really assumes that it is possible to distinguish two types of custom rather than custom and law. This preference, however, can hardly be regarded as an aid to clarity. In the modern world the question of whether a particular type of conduct was governed by custom or law would presumably have to be determined by a popular plebiscite. All things undoubtedly exist in the mind as well as in nature. But in popular understanding, at least, sheriffs and policemen are more than mere psychological realities. Even if the law is only a psychological emotion, still this emotion must be induced by some factor. This factor, of course, is only the practice of public sanctions.

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3. LAW AND SCIENTIFIC LAW IT WOULD seem that there would be least difficulty in distinguishing human laws from scientific laws. But, remarkable to relate, there has been no more prolific source of confusion. Many resemblances have been traced between the laws of nature and the laws of man, and at times the two have been identified and declared to partake of the same order of phenomena. To some, indeed, the prevailing confusion has seemed so hopeless that they have suggested that the term " law of nature " be abandoned, and that we speak of the qualities, properties, or peculiarities of nature, or, more broadly, of the "formulas" of nature. But unfortunately the word "law" has been employed by both jurists and scientists too long for such an amicable settlement to be possible. ·when it is proposed it only raises the question of better right: that is, is the scientist rather than the jurist to surrender the use of the word? Of course there are certain analogies between the laws of science and the laws of man. But these analogies have often been based upon misconceptions of the nature of both science and law. The laws of nature have often been regarded as immutable and eternal, expressing objective reality, while the laws of man have been seen as variable and arbitrary. But in an important sense both human and scientific laws are subjective, and neither exist until they are formulated by man. The sequences of sense impressions in nature may be eternal, but a scientific law is a generalization of their relationships and as such is a mental construct involving comparison, classification, and generalization. It assumes at least the present mental organization of man. The world does not appear the same to man and to the insect. Apples in various states of ripeness fell upon philosophers' heads before Newton. But there was no law of gravitation before he formulated it. For this reason, while nature does not change, the laws of nature do change. The new physics gives quite a different picture of the universe than the old. Scientific law itself appears only as a formulation of aggregates and averages rather than of invariable sequences of nature. Neverthe-less the resemblance between the laws of nature and of man is not strengthened thereby. W'hatever the nature of scientific laws, they belong to a quite different category. However mistakenly, they attempt to describe nature as it is. Human laws attempt to prescribe, not to describe. The fact that they are against human nature does not render them invalid, although they may be difficult

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to enforce. They involve assumed values and hence are imperative in character. In other words, their purpose is to regulate, not to state uniformities. Of course, if human laws were never violated, the resemblance to scientific laws would seem far greater than it is. The literature of science, indeed, contains at least one ingenious attempt to press this resemblance to its ultimate limit. Huxley accomplishes this by assuming that the law fails in inducing uniformity of conduct only when the law-breaker escapes punishment. 26 The uniformity is thus not disturbed when the law is merely broken. To make his point, however, Huxley is compelled to disregard one of the most obvious differences between human and scientific laws: that is, that scientific laws are not the causes of natural phenomena, while human laws may be the causes of human action. It is only by assuming that a law-breaker is not influenced in his conduct by the legal prohibition that it can be stated that " a law of man tells what we may expect society will do under certain circumstances." But Huxley chooses the worst possible example when he states that "the law is not a cause of a fuan's paying his taxes." It is true that a man may refrain from murdering his best friend or even his worst enemy for other reasons than that murder is usually a capital offence. But nothing is more certain - it is even more certain than death - than that almost all men will not pay taxes unless the law imposes them. The fundamental difficulty in distinguishing human from scientific law is that the reign of law was originally conceived to be the same in nature and in man. The further we go back in the history of Homo sapiens, the more nearly do the rules of conduct which he follows appear to be" instinctive" and hence " natural." As long as man is hardly more than an animal, his behaviour seems governed by natural laws. Even when social institutions have begun to be developed, this illusion continues to be long maintained. The element of human inventiveness is small, and laws and social institutions seem " natural " growths rather than the results of conscious change. 27 The illusion of the identity of law in nature and in man is greatly strengthenecl, moreover, by the nature of religious beliefs. Since God is simply the supreme lawgiver, he gives " laws" to nature and to man. He commands the sun to move in the heavens, and man to till the earth. It appears, however, that the laws of nature are not absolute and unvarying. The laws of nature, like human laws, may be broken. God may command the sun to stand still, or

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a sea to dry up. A child may be born by immaculate conception. In other words, the miracle intrudes upon the uniformities of nature. Since the most prominent characteristic of human laws appears to be that they are made to be broken, the resemblance of inconstant laws of nature to the laws of man has been rather strong. It might be supposed that the progress of philosophy and science would finally divorce the laws of nature from the laws of man. But at least the progress of philosophy only made matters worse. The law grew in many civilizations, but was everywhere discovered to be less than completely satisfactory. 28 Hence there began a search for some form of" higher" law which might be employed as a standard for measuring the wisdom of existing law. The latter was regarded as mere " positive," law while the former was held to be" natural" law. Thus was launched the most explosive idea in the history of law. Now, while this natural law has been conceived variously as divine revelation and as reason, it has also sometimes meant the identification of the reign of law in nature and in man. This is only another way of saying that there arc discoverable laws of behaviour to which human actions do conform. Man gives laws to himself, but he is also part of the phenomena of nature and as such must be governed by nature's laws. If there is a natural law of human social behaviour, it is obviously a scientific law of human behaviour. It is true that few have ever been able to agree about the character of these natural laws of human behaviour, but the possibility of discovering them may at least be assumed. If they have not yet been formulated, the fault may lie with the social scientists who are seeking to construct the "science of society." But in any event such laws would be only natural laws, or, as they are called nowadays, "sociological" laws. 29 If the sociological millennium ever arrives, it would probably be unnecessary to have human laws, and the problem would be solved as usual by disappearing.

4. THE SOURCES OF LAW AND THE SOURCES OF CONFUSION ADDED TO the perplexities of the law's content are those of the law's multifarious forms. In the language of the books these are called the " sources " of law but they might be called more aptly the sources of confusion. To make this inherent confusion worse confounded is the fact that the term " source " is used in two senses. In a " formal " sense the sources of law are the fonns in which

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the authoritative legal materials are to be found in a particular legal system - constitutions, statutes, judicial decisions, or in terms of apparatus, codes, digests, law-books. But in a " material " sense the sources of law are the historical reservoirs from which the formal sources have been drawn - that is, the social ideas and institutions which have led to the creation of the rules of law. Thus when law is defined in a material sense, it is likely to be regarded as the same thing as morals or custom, and old acquaintances are met again. In other words, the problem of the nature of law is confused with the problem of its origin. Moreover, the theory of formal sources is not the same in all legal systems. Thus what is "law" in one system may be demonstrated not to be " law " in another system. When the question what is law is put as a legal question, it can be answered readily in terms of the formal sources of a particular legal system. But, paradoxical as it may sound, the question what is law, as it is usually discussed, is not a legal question at all. The purpose of asking it is to determine the real rather than the legal meaning of the term "law." This real meaning can be discovered only by logical analysis of the phenomena of all legal systems. Still another way of putting the point is to say that to define " a law" is not the same thing as defining " law." To say that law is merely an aggregate of laws is worse than tautology. It is to pass from the real to the legal meaning of the term "law." This becomes very clear in Contin~ntal languages which boast separate words to express the idea of" a law" and" law." Thus in French "a law" is loi, and law is droit. But for the very reason that there are two words the temptation becomes very strong to assume that there are two realities, and to define droit as" une collection au ensemble des Zais," as indeed was the habit of the early commentators on the French Code Napoleon, who did not always bother to add further specifications. 80 Yet even Jeremy Bentham is said to have defined law as nothing but " the sum total of a number of individual laws taken together." 81 The method of defining by addition, however, is not determined merely by linguistic considerations. It seems to present an easy solution when the whole law is in theory supposed to be embodied in a written code. Where there are a definite number of written texts which may be counted, the law seems to be simply the sum total. It appears thus in Continental countries because these have embodied their law in a series of codes. On the other hand, in England and the United States the whole law has never been reduced

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to legislative form. It is still in large part a tradition which is " declared " by the judges in their decisions in litigated cases. The definition of Bentham is an exception more apparent than real. He was opposed to the system of his own country, being a strong advocate of codification. The forms of law are commonly reflected even in the real definitions. Custom has been magnified as the exclusive source of law because in the earlier phases of legal history legislation was rather infrequent. When the legislative element is the most important factor in the legal system, as it is in modern times, law seems to possess its imperative character by reason of its being the will, command, or direction of the legislature. If the form of government is monarchical the imperative appears as the will of the sovereign. Moreover, where the law is legislative in form, there is a tendency to regard it as complete: the code has a solution for every conceivable type of controversy; the law has no gaps and the function of the judge is the seemingly easy one of interpretation; he has only to be faithful to the code. On the other hand, in the United States, where not only is the law to a considerable extent unwritten but the judges, by virtue of their exercise of certain constitutional functions, are so much more important than legislators, executives, or administrators that they are virtually the dictators of the state, the imperative attribute of law seems derived from the fact that it is enforced by the courts, and the law itself seems fluid and shifting, the result of the creative activity of the judges. Thus a hard-boiled school of American " realists " tends to regard the law as simply "what the courts will do in fact." 32 It is one of the few definitions in which the point of view of the lawyer advising the practical-minded client is taken into consideration. But no lawyer can tell a client what the courts will do in fact. He can only tell him what the courts are supposed to do. They may actually do nothing at all or do the "wrong" thing. If the defendant is judgment-proof the courts will find themselves powerless. If the police are unable to catch a murderer, the courts will be unable to punish him. But is this to say that there is no law which requires the payment of a debt, or that murder is legal? A leading realist defines law as simply "official action." 33 But if law is thus what legal officials will do, why not say with equal logic that the law is what laymen will do? There is much law which is followed by laymen although it has never been litigated in the courts. The reductio ad absurdum of the whole position is that a statute is not law until it has been interpreted by the courts. Yet it is

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a pos1t10n from which one of the founders of realism has not shrunk. 34 Thus the legislator vanishes completely. Moreover, the whole conception of legal error and a hierarchy of appellate tribunals becomes impossible. There can be no such thing as an error of law if there is no such thing as law. The courts may freely disregard law if the law is what they do in fact. The law is like the flux of Heraclitus: it never is, but is always becoming. The conceptions of the realists represent laudable efforts to include not only the law in the books but the law in action, but they end in the absurdity of disregarding the normative aspect of .law and regarding it simply as an actual "pattern of conduct." Human law has again been confused with scientific law, the prescriptive with the descriptive. Of course, a law may become completely a dead letter, but if it has sunk into such desuetude it is practically equivalent to a law that has been repealed.

5. LAW AND THE RULES OF LAW exaggerations of the realists point to one of the major difficulties of the conception of law: the problem of the necessity of rules as an integral part of the conception of law. With reference to most controversies there exist pretty definite rules of law and it is foolish to deny the reality of rules. Judges do create new rules to dispose of novel controversies although in this process they cannot always give free rein to their prejudices, being limited at least by the analogies of existing rules and notions of judicial decorum. But the fact that judges legislate in a large or a small way is hardly a discovery. Judges are frequently given express "discretion" to do certain things, and these often include the creation of new rules. At least one modern code, the Swiss Civil Code, expressly declares that if cases arise which are not/overed by its provisions the judge shall decide according to the p(inciples of natural justice -which is to say, as he pleases. But a"\} even better case in point is the Oriental despot or the fascist Fuhrer, whose judges decide not according to rules of law but according to his will. Familiar too is ex post facto legislation, which is so rightly abhorrent in any democratic age. At all this the uneasy citizen is likely to shake his head and observe that the despot's unfortunate subjects obviously do not know the blessings of the reign of law. But both history and common sense testify to the fact that law is really not incompatible with despotism. It is true that rules are not a unique characteristic of law: re-

YET THE

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ligion, morals, and custom consist of rules, too. But rules, while not indispensable, have come to be the specific expression of the idea of law and are highly important in any mature legal system. It has been insisted, to be sure, that the law cannot be defined as merely an aggregate of rules, since this leaves out the essential element of sanctions. Because of this the law is often regarded as a "system " or a " process." It is pointed out that the law involves not only rules but a traditional technique. 35 Nevertheless this traditional technique may ultimately be formulated in legal rules relating to precedent, and a "system " is after all no more than an interacting series of rules. Thus the availability of a jury trial has an obvious relation to the possibility of collecting a debt. Twelve good men and true may be more generous than a sophisticated or corruptible judge. Nevertheless both factors in the situation may be stated in terms of rules. Logically even the complete absence of rules may be stated in terms of a rule. If the law is normative, it must be capable of being formulated in rules. Only a rule can lay down what ought to be done. But then how are we to reconcile this with the undoubted fact that there are no rules for some controversies? The answer is implicit in the terms of the question. The reconciliation seems necessary only because of the conventional way of thinking of rules as pre-existing rules, and also of forgetting that a rule does not have to relate to the subject matter of a controversy. A rule may be only an organizational rule - that is, a rule that in certain cases somebody shall make or adopt a rule or even a system of rules. This process of delegation is common in all legal systems. Certainly a rule which has been formulated with reference to a specific controversy is no worse than one formulated ten centuries ago, although naturally the latter type will be preferred by some lawyers. But all rules, no matter how or when formulated, do not necessarily lead to action. They merely express oughts. Even a despot cannot cut a subject up into little pieces if the said subject has had the good sense to make himself scarce. It is usual for those who pen legal panegyrics to descant upon the superiority of legal rules to moral and customary rules. The former are regarded as definite and certain while the latter are considered vague and uncertain. But the exact reverse of this is generally true. In the very nature of things, moral and customary rules must be clearly established and well known. They are not sanctioned by public force, and hence will certainly not be obeyed if there is dispute as to what they require. But legal rules may

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always spring into being from the pate of a judicial Jove, since whether they previously existed or not there is a good chance that they will be enforced. Thus it may readily' be perceived that the sanction is far more important than the rule in the legal system. But the tendency is to minimize the sanction and to admire the rule. The layman always finds it hard to understand that there are not always pre-existing rules by which all controversies may be decided. Otherwise is it not a waste of good money to consult a lawyer? Hence it is necessary for the courts to invent " sources " of law more often than men have invented minor gods. But the yearning for definiteness and certainty of law has not always been universal. It is simply a reflex of modern democratic civilization, which aims at security of persons and property. Definiteness and certainty of transactions are indispensable in any complex economic and social system, and particularly in modern capitalism, and pre-existing rules are undoubtedly the best means of attaining these ends. But, alas, no system can be perfect, and absolute security does not appear to be the destined end of man.

6. LAW AND THE STATE IT 1s ONE of the conventions of jurisprudence that any remarks on the nature of law should include at least a few passing references to the relation of the state to law. Many tremendous but unedifying tom~s have been written around this subject, but the truth of the matter is that there is no problem here at all so far as the nature of law is conc~rned. There is a problem concerning the origin and nature of the idea of the state; but once there is an idea of the state, there is law, and once there is law there is necessarily implied the existence of the state. The description of law in terms of the state is a description of a process purely in terms of its culminating-point. It is preferable to speak of organized government rather than the state as the basis of law. Government is more readily perceived as a functioning human institution. The layman thinks of law as what the government commands. We may even say that it is what the community or society commands. But the choice of terminology is of no great importance. The state is undoubtedly a more abstract and metaphysical conception than government, but even a government claims "authority," and it is a collectivity in which it is itself fictitiously set apart from the governed. It is important merely to recognize the fact that in

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human societies there exists one institution which is conceded authority over all other institutions in that society. This speaks as the whole community or in the name of the whole community, and its commands are recognized as law. This unquestionable state of affairs must simply be accepted as an ultimate fact. There will be recalled the story of Walt Whitman's exclamation: " I accept the universe"; to which the dour Carlyle is said to have replied: "Egad, he'd better." The problem of the state is not directly concerned with the nature of law, but with the reason for its binding character. However, the binding force of law always rests upon some metajuristic fact, which must be assumed to be ultimate. The reason for the ultimate fact has been greatly debated. It is indeed remarkable that the law should be deemed paramount and exclusive. Considering the nature of many laws, it is no wonder that the question should be asked why the law should be obeyed. Men, it seems, have always demanded absolutes. They cannot understand why a group of mortals invested with the attributes of" government" should rule over all other groups of men. The world of law, too, is supported upon the shoulders of an Atlas, who is personified as the State. Men like their institutions to seem logical and ethically justifiable. Hence they have not been content to regard the state as one of their own ideas. Instead they have assumed the real personality of the state, just as they have invented an anthropomorphic God. 36 Indeed, the metaphysics of the state is the theology of jurisprudence. To the state has been attributed the mysterious attribute of " sovereignty," which it has been assumed must logically be unlimited. Once postulated, the sovereignty of the state becomes the fount of a host of futile and insoluble problems which drive jurists and political theorists to distraction. Does sovereignty "reside " in the king's mistress, the president or his brain trust, the people as a whole, or the salons who kiss babies? The "external " sovereignty of the state seems to belie the possibility of international law. The "internal" sovereignty of the state seems to make impossible the existence of constitutional limitations upon the prerogatives of the state, which, h9wever, in some modern states are known to exist - at least the constitutional rights are enumerated in declarations of the rights of man and in bills of rights. To explain the facts which contradict the sovereignty of the state all sorts of reconciling doctrines are invented, such as the doctrine of " auto-limitation " 87 - that is, that the sovereign state itself limits its own pawer, which is only another way of repeating the

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fact to be explained: that the supposedly sovereign state, however illogically, does not exercise unlimited power. But as long as agents of the state are subjected to sanctions for violating the rights of citizens, it is plain that they are subject to law. Constitutional limitations are only rules of political morality when no means exist for enforcing them. The state seems so real that jurists end by debating the question: Which comes first - law or the state? This is like asking: Which comes first - the hen or the egg? The existence of the one implies the existence of the other. The state, indeed, is simply the same thing as the law itself. The famous social "contract" could never have been made except as an agreement in fact because a contract which is not a mere agreement but a legal obligation already implies a state and a legal system. The only real question that can be asked is whether a particular law has had its " source " in the state. Many " rules " which have not been enacted by the state become rules of law when they are adopted and enforced by the state, such as the rules of merchants. Some rules of law recognized by the state may have existed before there ever was any governmental organization. The confusion here lies again in the double sense of the term " the sources of law." The state is always the source of law in a formal sense, but not always in a material sense. Stripped of its metaphysics, the problem of the relation of the state to law may be tested by asking a simple question. A great many other bodies than bodies politic have their rules and exercise sanctions which do not differ in kind from the rules and sanctions of the state. Shriners, Seventh-Day Adventists, Rotary Clubs, the United States Steel Corporation, bands of pirates, and gangster mobs are all organized bodies. Their rules are enforced not only by fines and demotions from office and economic and moral pressures, but in the case of the groups which are considered outcasts from society by corporal and capital punishment. As the philosopher Kant once declared, it is possible to have an orderly government among a Kingdom of Devils. 38 But are the rules of either the devils or the angels to be regarded as law, and are the penalties which they impose legal sanctions? To answer in the affirmative is certainly to do violence to the. accepted canons of speech. But it will be asked if law rests upon the state, and the state is merely a psychological reality, is not law merely a convention? In other words, has not another old friend popped up again whose name is Custom? Well, we have here reached the end of the tether but we have already confessed that the state must be accepted as

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23

an ultimate fact. The law may rest upon the acceptance of the custom or the convention that law emanates from one group of men only in any society. But this is at least an ultimate custom which in an old phrase may be described as" the custom of the constitution," a phrase which unfortunately has all but disappeared since the almost universal adoption of written constitutions in modern times. Where law reigns, one big custom has been established in the place of a lot of little customs. Law now emanates from a single source; but at least this source is a point of reference only. Ethical questions, both as to the primacy of the source and as to the commands which emanate from the source, become irrelevant. To argue that the authority of the state needs an ethical foundation is only another way of arguing in favour of some form of natural law, or of attempting to derive law from some theory about the ends of law. In other words, custom need have no ethical content. A revolution may be defined as the suspension of the custom of obedience. A new state is always established illegally.

7. THE CULTIVATION OF METHODICAL IGNORANCE THE SCHOOL of jurists who have practically identified law with custom has been termed the "historical" school. Its founder was a German jurist, Friedrich Carl von Savigny, a wealthy aristocrat. The immediate background of the founding of the school was a controversy over the wisdom of introducing legislative reforms, which were opposed by Savigny on the ground that the only true source of law was custom. 39 The school of jurists who seek to discover the ideals of law has been known as the "metaphysical " school. Its exponents have been many, but Immanuel Kant may perhaps be regarded as its founder. The school that has emphasized the ideas of force and sanctions has been called the " anal ytical" school. Its founder was the English jurist John Austin, who, although he held a commission in the army of one of the mightiest of all political states, resigned it in order to devote himself to jurisprudence. • The analytical view of law has not met with universal acclaim. It seems to dispense with the idea of justice despite the fact that Fiat justitia, ruat cmlum, is inscribed on the lintels of many of the places where the law is administered. Hence it is frequently denounced in no unmeasured terms. Only recently it has been called "an unpleasant brew . . . prepared from . . . characteristically Victorian ingredients," 40 as if indeed law was invented by the

24

Boox I. Law

earnest Victorians. Nevertheless the counts of the indictment may readily be admitted. The analytical view is neither inspiring nor flattering to human nature. But that much is obvious from the very nature of the conception. But the critics do not stop here. They go on to assert that the analytical view is not only ignoble but too narrow to be true. It does not provide anything but a distorted picture of the reality of law in society. Its basic assumptions are false and are contradicted every day in the world of practical affairs. The unity of society is a fiction. The application of force is the worst possible method of regulating human conduct. But here the argument has really shifted from the question of what the law is to the question of how it works. There is no assertion that the assumptions upon which the law rests are true, or that the law always works. Everybody knows that it does not. If the law declares what ought to be, it obviously does not state what is. Nobody asserts that automobilists always obey traffic regulations and never pass a red light. It is true, too, that too many jurists have kept their noses too close to the legal grindstone. Jeremy Bentham regarded jurisprudence as the art of being methodically ignorant of what everybody knows. But there is no law requiring jurists to cultivate such ignorance. The study of how the law works is the primary function of jurisprudence, and in the free and airy domain of jurisprudence there are no policemen and no signs warning against trespass. The jurist may roam where he will even if he is an analytical jurist. There is nothing in the inherent nature of analytical jurisprudence which forecloses interest in the heavy mortgage of legal history and philosophy. Even if the idea of law be regarded as simple, the operation of law is always highly complex. The jurist may study the beginnings of law as well as the maturity of legal systems. He will naturally want to know the substitutes for law before the real article became available. Customary law may be only Ersatzrecht, but that is no reason for slighting it. International law may claim his attention irrespective of whether it is, strictly speaking, law or not. Legal history must necessarily have a wide range. It would be a strange legal history that refused to take into account the influence of morals upon legislation. Although law and morals are supposed to have been separated for all time by Thomasius, Kant, and Fichte, the liaison is being constantly renewed and to this very day the parties are still living in sin. It would be an even stranger legal history that neglected the persistent quest for natural law, or the warning of the realists that the jurist should pay at-

The Elements of Law

25

tention to" what the courts do in fact." Indeed, the jurist may go to any length to satisfy his curiosity. Just as an architect may interest himself not only in the principles of .esthetics but in the business cycle of the capital-goods industries and strikes in the building trades, so the jurist, particularly the practising jurist, may seek to acquire similar knowledge. In modern jurisprudence there are, indeed, no limits to the curiosity of the jurists. There are still adherents of the older schools, although they wear their rue with a difference. Among the most celebrated of modern jurists were Rudolf Stammler, who was a neo-Kantian, and Josef Kohler, who was a neo-Hegelian. There has been even a modern school of natural law, particularly in France, which speaks, however, in social-philosophical rather than individualistic terms of a natural law with" a changing content." 41 In a school that champions a " pure science of law " there may be perceived another form of analytical jurisprudence, which has, however, been greatly refined. Its leader, the celebrated Austrian jurist Hans Kelsen, with a rigorous and fanatical purity, derived all legal norms by a process of " concretization " from an initial legal hypothesis of the constitution, thus abolishing the ancient and traditional dualism between the state and lawY But the dominant school in modern jurisprudence is unquestionably the sociological. Its spiritual progenitor was the brilliant German jurist Rudolph van Jhering, who turned the attention of jurists from logical analysis of abstract legal precepts to a consideration of their purpose. Law, he declared, was a means to an end, and the function of the jurist was to balance interests. Jhering thus inaugurated a veritable revolution in modern legal thinking. 48 Marxists began to ask whether the interests to be balanced were not class interests. A school of " free law " jurists arose who inaugurated a period of Sturm und Drang in the jurisprudence of the Continent. The more extreme apostles of free law wanted to release the judge entirely from the trammels of legal rules. 44 The school of American realists is only the latest phase of sociological jurisprudence. 45 All the modern schools in one fashion or another have an anti-normative bent. Although it is logically untenable, this anti-normative bent is all too justified by the chaos that is coming to reign in modern legal administration. 48 Various sources of law have had their champions in the past. Now that there is apparently a revolt against all sources of law. is law itself dissolving? Is the chief lesson of legal history the symptomatic character of all movements in jurisprudence? Is not jurisprudence only a succession of slogans?

BOOK II PRIMITIVE LAW

" AND IT is to law-breakers, paradox as it may sound, that the prog-

ress of law is due." -

EDWAIU> JENKS

CHAPTER II

CUSTOM IS KING to understand the growth of institutions it is true to say that an ounce of history is worth a pound of theory. It is more than high time to turn from the problem of the nature of law to the problem of its origins. But here a strange fatality besets the weary legal historian. In searching for the beginnings of law he runs full tilt into an ambush where lies in wait the gleeful ethnological jurist asking the eternal question: "·what is Law?,,. Only the question now assumes another form: "Is there law among primitive peoples? " Like the horse confronted by the primitive automobile, the immediate temptation as well as the instinctive reaction of the legal historian is to shy from the question. He is concerned primarily with the history of the law of the culture peoples, and, although he has come to realize that their legal institutions, which were already old at the dawn of history, can be reconstructed, if at all, only from what is known of primitive peoples, he has no great desire to lose himself in the wonderland of primitive law and social institutions. The jurist has come to look at these institutions with the uncomprehending law-laden eyes of his own culture. The whole of his own civilization has a legal cast. All transactions assume legal forms, and everything is subject to legal regulation, from the possession of dangerous weapons to the wearing of hat-pins. The state

I

N THE ATTEMPT

[ 27]

28

BooK II. Primitive Law

has come to full dominance, and it boasts a complex and integrated system of organs. A hierarchy of courts is available to every man who is foolish enough or desperate enough to become a litigant; the law boasts of middlemen of justice who constitute a veritable army- judges, lawyers, public prosecutors; a still mightier army - sheriffs, jailers, and constables - are available to execute the law's decrees; the law itself is embodied in thick volumes of codes or judicial' decisions upon which jurists are constantly working so that the law may appear a well-ordered and rational system taking its place among the astounding achievements of modern man. In primitive cultures, on the other hand, these legal luxuries seem strangely lacking. There are primitive peoples in various parts of the globe who have no organs of political government but live in a state which can be described only by that frightening word "anarchy." If there is a chief, he has no real powers, and certainly there are no courts, and nothing that even savours of an irregular administration of justice. In this presumably sad state live such primitive tribes as the Andamanese, inhabiting an island in the Bay of Bengal, the Papuans of New Guinea, the Veddahs of Ceylon, the Punans of Borneo, the Tasmanians of Australia, the Tierra del Fuegians of southernmost South America; the Yurok of California.1 These represent people of the lowest material culture, most of them living in distant and inaccessible parts of the world. The Australian tribes are particularly good examples of primitive political innocence. It is said that their language possesses no word for" chief." 2 But even peoples who have developed forms of chieftainship, such as the American Plains Indians, or who have advanced somewhat further in material culture, such as the Eskimo, or the Ifugao of the Philippines, manage to get along without judicial organs. 3 Unlike the lad in Grimm's well-known fable, the jurist has not had to learn to shudder at this state of affairs. The absence of courts at once betokens for modern man a reign of bloodshed and violence, and the prevalence of this condition seems to be more than substantiated by the widespread practice of the blood-feud in primitive society. Hence it had long been assumed that the savage lived in a state of unintermittent warfare. The view was popularized in Westem culture by Hobbes, who taught in The Leviathan: " it is manifest, that during the time men live without a common Power to keep them all in awe, they are in that condition" which is called Warre; and such a warre, as is of every man· against every man."• Naturally this background was pleasing to civilized man

Custom Is King

29

for by way of contrast it emphasized the untold blessings of law and order, which were seen developing against a sombre background of gory turmoil. As the law eventually triumphed it ended the bellum omnium contra omnes-to give the customary touch of Latinity to this theory of the state of primitive society. Obviously if the warfare of primitive man had long endured, humanity would never have achieved its present glorious state. The race would have committed suicide on the altar of its egoism and Homo sapiens would have become extinct, like the dinosaur and the pterodactyl. But since humanity somehow stubbornly survived, in time the theory of bloodthirstiness began to be abandoned, and attempts made to discover the sources of the cohesion which seemed to hold primitive society together. It was still denied the possession of the luxury of law, but a powerful surrogate was found in the sovereign reign of custom supported by the powerful forces of religion and magic, and the compulsive force of primitive public opinion. In other words, the tendency to regard the savage as lawless was succeeded by a contrary tendency to regard him as the automatic slave of custom and the ancestral mores. The savage was now not quite so savage. But still he could not be granted a degree of rationality comparable to that of civilized man. If he possessed customs, they necessarily had to be quaint, startling, and outlandish, the products of superstition and social ineptitude. The collection of these curious customs became the chief objective of the study of primitive man. The development of those expedients of adjustment which helped primitive peoples to keep the peace were presented in a manner that made no sense. There was the institution of the primitive blood-feud, which seemed horrible. But with curious inconsistency there was regarded as no less horrible the practice of composition, whereby cattle, sheep, and goats were accepted as satisfaction for the taking of human life. In modern society murder is the major crime against the individual, but primitive peoples treated it as a private, amendable wrong. Obviously they had no conception of "crime." Moreover they were mentally unable to distinguish law from morality or religion, which were all hopelessly jumbled in the primitive mind. No more were they able to make any nice discriminations on the score of liability, to distinguish between accident and design, the premeditated deed and the act of God. Even less had they any conception of rational proof by the testimony of witnesses, but relied on dreadful oaths and bizarre or cruel ordeals. Worst of all, primitive man had no idea of private property but lived in a dreadful

30

BooK II. Primitive Law

and unholy state of sheer communism, unable to recognize per. sonal and individual rights. The mind of modern man, which we flatteringly regard as rational, naturally recoiled from this farrago of nonsense, terror, and superstition. In due course the inevitable reaction set in. Far from being an automatic slave of custom, the savage actually was pictured as a" scofflaw "who could be guilty of adultery with civilized casualness and even commit breach of exogamy without too much moral compunction. The mind of primitive man was perceived to be not much different from that of modern man. i::_he behaviour of primitive man, in the context of his own culture, was found to be no less natural and comprehensible, and his institutions just as well adapted to his own stage of economic and social advance. All this was so much to the good. But finally even the most primitive peoples who lived in an almost complete state of political anarchy were declared to be possessed of law in the same sense as the culture peoples. Not only were religious and secular rules of conduct distinguished in primitive society, but the savage had "criminal" as well as " civil" law. Anthropological alchemy had transmuted primitive custom into law. The reaction had reached its logical limits. The early view of primitive man was based upon the work of the classical anthropologists, who were simple evolutionists. In the field of law the most celebrated work was Sir Henry Maine's Ancient Law. 5 Although Maine was not a crude evolutionist, his penchant for epigram often led him to overgeneralize. His theory that the patriarchal family was the basic unit of primitive social organization has been exploded. on· the other hand, his distinction between kinship or tribal organization and territorial or political organization is still fundamental to an understanding of primitive law. Scarcely less important is another of his generalizations: that in the development of law the sequence is from judgment, to custom, to legislation. Although so far as the generalization implies that there are no customs before judicial decisions, and that legislation is unknown among primitive peoples, it is not in accordance with the facts, 6 it does have the merit of emphasizing the decisive importance of the appearance of courts in the creation of law. The chief objection to Maine's theories is that he sacrificed primitive upon the altar of ancient law, in which he was primarily interested. Sharing with the early evolutionists the conviction that Western civilization was the pinnacle of human achievement, he believed in the belligerency of primitive man 7 and regarded his institu-

Custom Is King

31

tions as permeated by irrationality and superstition. He supposed religion to be the ancestor of law, and assumed a stage in which religious, moral, and customary rules were inextricably intertwined. The reigning anthropological school today is that of the " critical " anthropologists who believe hardly any generalizations at all, and practically tabu all speculations as to origins. The controversy about primitive man, about whom unfortunately so much more is known than in the days of the early evolutionists, still rages with such violence, however, that the outsider must regret the time when primitive institutions could be disposed of with a few apt quotations from Herodotus and Tacitus. Fortunately the legal historian is not called upon to cope with all of the problems of anthropology. Since social organization has already had a long history when law begins, he need not concern himself directly with such great anthropological enigmas as the primal horde, the origin of exogamy, primitive promiscuity, or the priority of father-right over mother-right. Among the culture peoples the patriarchal family is the fundamental unit of society. A great many problems may be disregarded when no attempt is made to trace the history of particular legal rules. With respect to fundamental legal mechanisms a high degree of uniformity exists, for the basic methods of litigating a dispute are limited. The best known of the critical anthropologists in the field of law is Bronislaw Malinowski, whose Crime and Custom in Savage Society has already become something of a classic although it is not much more than a decade old. While Malinowski has the merit of refusing to believe in the primitive belligerency of mankind and the domination of primitive life by religious and magical conceptions to such an extent that the savage is unable to distinguish religious from secular rules of conduct, his very rationality and functionalism led him to misapprehend the significance of custom in primitive life, and to substitute for its sway a system of reciprocity as the basis of social cohesion. Not only was the savage not an automatic slave of custom, but, like civilized man, he recognized an obligation as binding only when he had received a quid pro quo. A " concatenation of obligations," which inhered in the very economic life of the community, was the basis of the "civil " law of primitive society. 8 Malinowski was singularly fortunate in selecting the locale for his theory. He wrote about the Trobriand Islanders, whose economic system was based upon a dual division of labour. The coastal people caught fish, while the inland people raised vegeta-

$2

BooK II. Primitive Law

bles. Since the fish were regularly exchanged for the vegetables, the system of reciprocity worked with absolute precision. The whole trouble with the theory, of course, is that not all primitive peoples regularly exchange fish for vegetables. The material culture of some primitive societies is so rudimentary that no regular system of exchange is possible. Reciprocity is entirely absent, at least in an economic sense, in the giving of gifts. Moreover reciprocity can be involved only in "civil" obligations. In the case of " crimes " or " wrongs " it is difficult to perceive the element of reciprocity unless it is upon Hegel's theory that the criminal actually craves to be punished. Malinowski is thus driven to say rather mystically that the " criminal " law, like the "civil" law, is supported by the very processes that govern primitive society, and to complain, despite his emphasis upon the savage's capacity for following the bent of his pleasure, of the overemphasis of "criminal" law in primitive society. In his Ancient Law Maine called attention to the preponderance of criminal over civil law in primitive societies. He had hastened to explain, however, that he had employed the expression" criminal law" only as a matter of convenience, remarking that " the penal law of ancient communities is not the law of Crimes; it is the law of Wrongs, or, to use the English technical word, of Torts." 0 It is indeed highly important in writing of primitive law not to stretch it upon the Procrustean bed of modern legal concepts. The best policy to follow would seem to be to exlain the methods actually in vogue in primitive societies in dealing with disturbing situations. All that may be said is that in some primitive societies the community reacts at times against a danger which seems grave enough to threaten its very existence. Breach of exogamy and sorcery are the great primitive ·~crimes." Breach of exogamy imperils the very constitution of primitive society, which is based upon some form of the family. Sorcery, which exposes the community to dark and sinister forces, is deemed hardly less serious. Some primitive communities also do not tolerate the individual who is foolish enough to endanger the food supply. Thus among the Eskimo it was forbidden by breaking a tabu to frighten away seals,1° among the Plains Indians to startle buffalo prematurely in the tribal hunt, 11 among the natives of Ontong Java to steal coconuts from the common property.12 Although the whole community took action in such cases, there could hardly have been any conception of " public" crime. It was less criminal law than lynch law, although the stigma that attaches to the latter term needs

Custom Is King

33

qualification. As a matter of fact, it is not always easy to distinguish "criminal " from "civil " law even in maturer legal systems. The consciousness of the difference between them rests upon certain variations in procedure and sanctions appearing in such legal systems. In the primitive societies in which the "crimes~1 represent the only occasions of community intervention, it is bet· ter to speak of a distinction between "law" and" no law." Certainly the modern mind will find it difficult to concede the exist· ence of a "criminal" law when murder and theft are not regarded as the concern of the whole community. The great reality of primitive society is not "civil" law, or "criminal" law, but custom. The savage can distinguish religious from secular rules of conduct because he has a sense of the supernatural and even seeks to activate the unseen powers by magic and sorcery. The sanctions for purely religious rules are automatic. It is only when he punishes black magic as sorcery that a secular sanction has been added to the religious rule. But the savage does not go beyond this and regard some of his customs as binding when they are based on reciprocity, and others as indifferent when they are not. All of his customs are equally obligatory. There has been a time when the savage was regarded as "lawless," but there never has been a time when he was really depicted as the helpless slave of custom. The pages of anthropological treatises and journals are full of examples.of his revolt, but sometimes the examples have been accompanied by unguarded remarks whose meaning can be twisted. While the savage is not the automatic slave of custom, the fact remains that custom alone has sufficed to hold primitive societies together. While there is no automatic submission to custom, there is an automatic sway of custom. Somehow, marvellous to relate, the savage recognizes the binding character of his customs although they are not backed by specific judicial sanctions of a repressive character, as in civilized society. In primitive society custom has a force of its own. It is obeyed merely because it is the custom, and some customs may have a tyrannical hold despite the fact that they are far from beneficial and serve no real function. Custom must be understood as an institutional mechanism, and to become engrossed in individual customs, to differentiate between customs, is to slight the function of custom itself. The purpose of custom is to promote uniformity of conduct, to establish a basis of social agreement. Custom must be conceded to be sovereign if it is to discharge its social function. The central problem of primitive law may be said to be whether

34

BooK

II. Primitive Law

in the absence of political organization and specific juridical institutions certain modes of conduct may be segregated from the amorphous body of custom as at least incipiently legal. The qualifying adjective "primitive" in the term" primitive law" should at least suggest that it is not quite law. The test of law in the strict sense is the same for both primitive and civilized communities: namely, the existence of courts. The court of the bush is none the less a court because it does not sit every day, because it may not always employ compulsory process, because it is not housed in a permanent structure upon whose lintel is insc-ribed Fiat justitia ruat cmlum. Doubtless there will be borderline cases of the existence of machinery for intervention closely approximating a court. But neither is literacy a perfect criterion of primitive society, for there are some primitive peoples who employ such rudimentary forms of writing as the knot, the belt of wampum, the picture on the cave wall. The test of literacy is indeed most unfortunate in its application to legal institutions. There is no direct correlation between literary and legal culture, and1vriting is often known for very long periods of time before it becomes common in legal transactions. A legal transaction may be performed by ceremonial means before a required number of witnesses, and a change in custom may be brought ~bout by oral proclamation. To speak of the law of some African peoples as "primitive" although they have courts and have invented many complex forms of legal transaction which compare not unfavourably with those of the ancient Babylonians is to abuse the natural meaning of the term, and to make it impossible to make any valid generalizations concerning primitive law. In seeking the embryonic forms and mechanisms of adjustment that have developed into juridical institutions, in attempting to determine when a secular custom may be regarded as at least incipiently legal, the temptation is strong to seek in primitive society those manifestations which in the modern world have come to be the subject matter of legal obligation, to select the customs relating to marriage, inheritance, and property and pronounce them to be primitive law. This process, which is perhaps inevitable, may be described as the pathetic fallacy of primitive jurisprudence. The legal emotions of civilized culture are thus transferred to primitive society. A far safer guide to the unfolding of law is available in primitive ceremonialism. Publicity deserves far more attention than reciprocity. Ceremonialism is indeed the crucial test of vitality of in-

Custom Is King

35

terest and the differentiation of custom. It is only when transactions have come to be consummated according to special forms that they may be said to be on their way to legal recognition. A mark may be made upon a fruit tree to indicate that it is claimed as private property; a bough may be affixed to a nest so that no one may disturb the find.15 Primitive man is already familiar with many varieties of religious ceremonial. He need only adapt them to secular purposes. In one sense some ceremonialism may perhaps be described as a preventive process. It is employed not only to found an obligation but to lessen the likelihood of subsequent dispute. Even where no compulsory process is available, organized ceremonial already bespeaks participation of the community. In primitive society there may be process although there is no court. A go-between may handle a dispute according to recognized forms. An exchange of public expostulation may follow the infliction of a wrong. The individual who has been caught in the commission of a breach of exogamy may perform a ceremonial suicide. It is in the organized forms for conducting and disposing of the dispute itself that primitive law comes to definite expression. It is in the process of retaliation that custom is shaped into law. Breach is the mother of law as necessity is the mother of invention. Even if we do not overemphasize the existence of "criminal" law in primitive society, the fact remains that the law deals with the abnormal rather than the normal. It has its origin in the pathology of social relations, and flourishes only when there are frequent disturbances of the social equilibrium. The dispute whether primitive societies have" law" or" custom" is not merely a dispute over words. Only confusion can result from treating law and custom as interchangeable phenomena. If custom is in the truest sense of the terms spontaneous and automatic, law is the product of organized force. Reciprocity is in force in civilized communities, too, but at least nobody confuses social with formal legal relationships. Forms are functional, too.

36

BooK II. Primitive Law "Law is self-domestication." -

RICHARD THURNWALD

CHAPTER III

UP FROM THE BLOOD-FEUD

I

said that the matrix of alf law is the blood-feud. The interventions of the primitive community when it felt its very existence threatened were too occasional to nurture law. But murder and theft, although regarded less seriously, occurred more often. Ever since Proudhon observed that " property is theft," it has often been assumed that law arose in the need for its protection through repressive sanctions. But long before it was necessary to ensure the safety of property there arose the necessity to ensure the safety of life. Homicide is the major crime of our own secularized civilization, which, no longer believing in a world to come, seeks at least to guarantee life in this. But there can be no doubt that it was no less the first wrong recognized in primitive society: it was the greatest of all the disturbances of the peace, although it was not a "crime." The feud arose from retaliation, which, since the first law of life is self-preservation, became the first law of man. Yet the blood-feud was the matrix of law only in the sense that it was the objective act which gave rise to the need for adjustment. Otherwise it might as well be said that the matrix of all society is rape. The unmitigated feud was the negation of law. Only the regulated feud was a social institution. Simple and direct retaliation Homo sapiens shares with his humbler cousins. The popula! conception of the primitive blood-feud is one of an endless series of homicides: The killing of a member of one clan leads to the killing of a member of the murderer's clan, and this process continues ad infinitum until both clans have been exterminated. There are undoubtedly instances of such indiscriminate slaughter. The sensibilities of civilized men are shocked particularly by two factors in the blood-feud: first, that retaliation should not be confined to the actual killer, and, second, that more than one life should be taken for another. Indeed, these principles may be applied in very extreme forms. Among anthropological curiosities is the blood-vengeance chain in the Gazelle Peninsula of T IS OFTEN

Up from the Blood-Feud

37

New Britain whereby, when a man of low degree has been killed by a person of high degree, his relatives will kill a member of a kin of slightly higher degree than themselves in the knowledge that the process will continue until the original offender is reached. But not even this behaviour is without rationality: it represents a method of mobilizing public opinion against a powerful malefactor.1 But many primitive peoples are more conservative. The Punans of Borneo avenge themselves only on the actual murderer. 2 When the blood-feud has become a well-organized institution, one act of retaliation suffices. The Bergdamma avoid taking more than one life in retaliation for a killing,8 and this is generally the rule in West Africa.' In the Trobriand Islands the vendetta was not waged when "the deceased had met his fate for a fault clearly his own." Apparently at times even a primitive people might cry "Good riddance." Moreover there are many examples of primitive peoples who avert feuds by killing a member of their own kin whose repeated breaches of the pcaf'.e are likely to endanger their existence. Thus among the Central Eskimo a man who has made himself a general nuisance in this manner may be put out of the way by common consent.~ The Chukchee also behave in this exemplary manner, 6 while the Akamba, a Bantu agricultural people in East Africa, may thrash and despoil such a culprit. 7 In this treatment of repeated breaches of the peace is to be perceived another example of primitive" crime," and it is a crime in a more contemporary sense perhaps than any others. There are indeed many variations in the institution of the bloodfeud. Although the feud is normally between families or clans, an individual relative may occasionally become the object of vengeance. The Australian Dieri slay the offender's elder brother rather than the offender himself. 8 Moreover the group concerned may not consist solely of kindred: it may involve one of the fraternal organizations which are such a characteristic feature of many primitive societies. The feud may also begin because of other reasons than homicide - for example because of poaching on hunting preserves or pastures, because of adultery, or even because of wilful refusal to pay a debt when there is ability to pay, as among the lfugao. 0 In the case of some wrongs the victim may sometimes retaliate by his own suicide. The theory is presumably that the ghost will then be able to avenge himself. This post-mortem retaliation is stressed by Malinowski, 10 and it is common not only in the Trobriand Islands but in West Africa; 11 but as in the case of

38

BOOK

II. Primitive Law

sorcery it is difficult to determine whether such an act is not voluntary and individual. The blood-feud is extremely widespread in primitive society. It is true that there is a complete absence of the blood-feud in Ashanti, where in the case of the killing of a member of another kindred group the responsibility of the offender's own group is recognized by his expulsion. 12 But the Ashanti have complex legal institutions, and, generally speaking, the blood-feud has been controlled to a far greater extent in Africa than elsewhere among primitive peoples. It cannot too often be emphasized that the law of most African races is not very primitive. Variations in the bloodfeud exhibit it at various levels of development. The generalization may be hazarded that the more primitive the people, the more likely it is to practise moderation in the waging of the feud. The obligation of blood-vengeance becomes a matter of social distinction only among the more advanced tribes of shepherds and husbandmen. The popular belief in the ferocity of primitive peoples produces the impression that the blood-feud must have been a frequent occurrence in the early history of mankind. But the available anthropological evidence is against the conception of the bellum omnium contra omnes. 13 The myth of a golden age deserves no credence in the sense that men once lived at their ease, free from the drudgery of unending labour, for most primitive peoples, Hollywood and the South Sea Islands notwithstanding, do not live in a paradise of plenty; but there may have been a golden age of comparative peace and physical security among men. The vast majority of the primitive peoples of today are peaceful. Violence is almost entirely absent among food-gatherers, who habitually treat their women and children with gentleness and consideration and are friendly in their relations with other communities. Murdoch witnessed not a single quarrel among the Point Barrow Eskimo in two years' residence. 14 Even where external warfare is waged, internal violence may be rare. Grinnell reports only five or six murders in forty years among the warlike Cheyenne lndians.15 Even cannibal and head-hunting tribes do not engage in continuous or indiscriminate slaughter. While man is innately peaceful, he will resort to violence in response to social needs or as the result of the development of social institutions. The social origin of warfare is shown by the mere fact that it is organized and accompanied by ceremonial. The exceptions among the food-gatherers only prove the general rule of peaceableness. Their acquisition of the

Up from the Blood-Feud

39

habit of bloodshed may be the result of some peculiar features of their social organization, or of contact with more advanced peoples. Thus the Ibau of Borneo were taught violence by the piratical Malays, who had learned the lesson only too well from the Arabs. 16 Moreover, the blood-feud must be compared with the realities of civilized society. It has been remarked by Hobhouse that" The fight with the purse is not the ideal substitute for the fight with the person." 17 It must be remembered, too, that in our own society the blood-feud has hardly disappeared. It is still supposed to survive among comparatively civilized peoples in the Kentucky mountains and remote corners of the Balkans, and on a gigantic scale in the relations of nations. Normally the blood-feud is still waged by the state in the less excusable form of capital punishment. Any country which has about twelve thousand murders a year should readily be able to understand its appeal to primitive men. Indeed, in primitive society it had an inexorable logic. It hardly needed justification. Undoubtedly it cast a shadow across primitive society, but its terrors have been grossly exaggerated. Some very primitive societies of very low material culture early discovered methods of mitigating the blood-feud. One of the most interesting of these is the "expiatory encounter" which is particularly characteristic of the Australian tribes. 18 When there is a homicide, the guilty person has to submit himself to a shower of spears directed at him by the kin of the slain. This continues until his blood flows, which normally puts an end to the vendetta. In case of lesser offences the offender is permitted to defend himself with the help of his kinsmen, who may throw missiles at the opposing kin. This, however, is no longer an expiatory encounter but a regulated fight or duel, a more common form of settling disputes among primitive peoples. Thus among the Tlinket Indians quarrels were once settled by champions armed with daggers and protected by skin armour and wooden helmets. 10 The "\Vestern Eskimo settle differences by means of a boxing match. 20 Another form of the regulated fight is an encounter with staves or cudgels. The encounter is permitted not only in the case of homicide but in lesser serious offences such as insult, adultery, and poaching on land or hunting preserves. In this type of instance the Mohave Indians combined a tug of war with the cudgel encounter, the affair thus taking place in two stages. 21 Often the encounters are accompanied by ceremonial songs or dances. Both the expiatory encounter and the regulated fight have sometimes been confused

40

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with the ordeal. In the former the guilt is always assumed. While an ordeal may consist of an encounter, it is employed as a test of guilt and as a basis of judgment, and, moreover, it is dominated by sacral conceptions. Presumably if satisfaction in the form of the encounter were refused for any reason, the vendetta would ensue. Occasiona11y also the regulated encounter might turn into a duel to the death. Sometimes an existing feud might be terminated by a more limited form of violence in the shape of a plundering expedition, as in New Caledonia. There may be perceived in the expiatory encounter an effort to humiliate the wrongdoer. The fear of ridicule plays a particularly great role in primitive societies, and various forms of organized humiliation developed primarily for dealing with lesser injuries. Such is the " exchange of public expostulation " in the Trobriand Islands, in which the parties assisted by friends and relatives meet and harangue each other. 22 It is reported that the Tasmanians practise a form of public humiliation which resembles the Puritan's stocks: the offender is put on the lower limbs of a tree and mocked. 28 Among the Blackfoot Indians a man who has made himself a general nuisance is upon a signal from a headman, when a11 have retired for the night, mocked amidst shrieks of laughter from tent to tent, with the result that he is usua11y driven into temporary exile. 24 The "critical singing encounter" of the Eskimo is perhaps the best-known of these organized forms of public ridicule. The injured man confronts the culprit in the presence of the spectators and mocks him in a satirical chant. The accused listens in silence, but at the close of the charge replies. Such contests have been known to continue for years. It is said that sometimes even in the case of homicide an Eskimo will content himself wfrh reviling the slayer in a ceremonial dance, sometimes thus forcing him to leave the community. The critical singing encounter in this case may be regarded as a bloodless form of the duel. 25 In the absence of judicial institutions in primitive society the general tendency is to take advantage of natural reactions and organize them into recognized sanctions. Where breach is very occasional, however, or the offence is regarded as of a minor character, it is often difficult to tell whether a particular adjustment is individual or has its basis in a genera11y recognized custom. Nothing better testifies to the importance of serious breaches of custom in the formation of law than the extreme informality and flexibility of the methods for dealing with minor peccadillos in primitive societies. Among these are often included such lapses even as adul-

Up from the Blood-Feud

41

tery and theft, which are as a rule, except under aggravating circumstances, treated rather lightly in the more simple of primitive societies. The thief or the adulterer (who, after all, is only engaged in another form of theft) is very frequently simply subjected to some form of public humiliation or blows. Minor personal injuries may be atoned for by gifts or even the giving of a feast, but the practice here is very irregular. Its basis is often voluntary agreement. In these adjustments is to be perceived in embryo the institution which may be regarded as the most flourishing of primitive and later archaic law. This is the institution of composition, or pecuniary payment for wrong. The giving of a feast or the proffering of a gift was obviously a rudimentary form of composition, but in a sense so, too, were the expiatory encounter, the suffered blow. Composition, also, was a form of humiliation for the offender and his kin. It is sometimes said that composition developed from blood-revenge, and while it undoubtedly came to be the chief means of preventing a feud, its origins are to be sought rather in the lesser offences. Its spread was facilitated perhaps by such acts as the acceptance of the bride price for the abduction of women. Indeed, the value of an individual's life was often fixed in terms of his mother's bride price. The best indication that composition did not develop from blood-revenge lies in the probability that it was not originally permitted in the case of homicide, and that in some primitive societies it remained dishonourable to accept "bloodmoney." Composition was originally probably accepted only in cases of accidental homicide. Moreover, the psychological angle is quite different in the case of composition: it proceeds from the fears of the perpetrator of the deed and his relatives rather than from the feelings of the victim's relatives. The first compositions were doubtless voluntary aRd the amounts were fixed by agreement. Sometimes the composition was accepted before any act of retaliation, and sometimes only as the quid pro quo of the treaty of peace which followed retaliation. But the attractions of the institution were such that in many primitive societies there came a time when no retaliation was permissible, and the amounts of composition were fixed in traditional tariffs. In this process the existence of an organized judicial institution would have been of great assistance, not only in the fixing of the amounts but in ensuring collection, but it was by no means indispensable, for composition was sufficiently enforced by the fear of retaliation. One of the most remarkable aspects of composition is that it may flourish in very highly developed forms even in the

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absence of courts, as among the Yurok and the Ifugao, among whom an exact composition was fixed for every injury to person and property; in the Ifugao scale there was considered not only the seriousness of the offence but the rank of the parties. 28 It is generally true that in the most highly developed forms of composition there were taken into account not only the status of the parties but considerations of age, sex, and rank. There was also a specified amount payable for every conceivable injury from complete loss of life to the loss of a tooth, thumb, toe, or even toe-nail. But while differences of circumstance thus played a part in fixing the amount of the composition, there was no attempt to award " damages " as in developed legal systems. In damages the idea of compensation for the actual loss suffered is dominant, but in composition the motive is rather the awarding of an amount which shall be sufficiently large to i:nduce the relatives to keep the peace. In a few tribes composition was payable in primitive forms of currency, but the more usual mediums were various forms of movable goods. In the more serious offences composition was payable in the highly valued domestic animals: cattle, sheep, goats, pigs, horses, camels. Composition was-made possible by the accumulation of certain amounts of surplus wealth in primitive societies. There is no primitive legal institution that may be more directly correlated with economic factors. Pecuniary composition is all but precluded in societies of a very low material culture, and hence there are only a few instances in the lowest economic stage, represented by the simple food-gatherers. The practice spreads among the higher hunters, but it is only among the more highly developed agricultural and pastoral peoples that it becomes a dominant institution. The very fact that the tariffs of composition run so frequently in terms of domestic animals heralds it as the typical institution of pastoral peoples. Moreover, it is significant that the very factor which made possible the development of composition also ultimately caused its decline in effectiveness as a social institution. The relative scarcity of wealth had made it attractive as a mode of appeasement. The proliferation of wealth, particularly its concentration in the hands of a limited class, led to intolerable abuses. Injury became too cheap for some, and hence composition could no longer act as a deterrent. The same result followed from the depreciation of currency or property values. It remained for the political state to grapple anew with the problem of ensuring the safety of persons and property.

The Peace of the Kindred

43

" The history of political ideas begins, in fact, with the assumption that kinship in blood is the sole possible ground of community in political functions; nor is there any of those subversions of feeling, which we term emphatically revolutions, so startling and so complete as the change which is accomplished when some other principle - such as that, for instance, of local contiguity - establishes itself for the first time as the basis of common political action." -

SIR HENRY MAINE

CHAPTER IV

THE PEACE OF THE KINDRED law has its great dominating principle in the dogma of the unity of the kindred group, which derives from Maine's brilliant perception of the distinction between kinship and political society, and a true appreciation of its implications is absolutely essential to an understanding of primitive "legal " organization. In primitive societies which have not yet developed judicial institutions it is true to say that every man is his brother's keeper. An individual almost always has rights only as he is the member of a kinship group. In fact it would be almost true to say that in legal contemplation there are no individu;il persons. The legal system rests upon collective responsibility. The central reality of primitive law is the solidarity of the kinship group. Since law has always been bound up with some form of state organization, the beginning of law has always been taken to be the peace of the king. But peace of the kindred antedates the peace of the king or chief. In primitive society the peace of the kindred is almost the only peace. The solidarity of the kinship group has already been seen in operation in the affairs of retaliation and composition. This collective responsibility seems only another instance of primitive savagery, but in fact it is a highly rational institution, and almost a logical necessity in the absence of political institutions, for under such conditions the individual could rely for protection only upon some form of group organization. Responsibility if individualized could be escaped too easily where political anarchy prevailed. The

P

RIMITIVE

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blood-feud almost necessarily has to be indiscriminate if it is to constitute a sufficient restraint. Composition could be accepted only if guaranteed in this earliest form of mutual insurance. A " trial " to determine guilt would have been meaningless in this system of responsibility. It was enough for the kindred that they had suffered an injury. It is highly important to recognize that collective responsibility has as much a tendency to mitigate conflict as to spread its effects. Only the kin involved need have any fear. The rest of the community may go about their tasks with absolute unconcern. An extreme instance of the application of the kinship principle may be observed among the Angami Nagas on the northeastern frontier of India. Although they live in villages in common with several clans with whom they intermarry, they abstain absolutely from interfering when a hostile tribe descends upon the village and begins to slaughter the members of one of the clans. 1 The system of collective responsibility has a feature which seems even stranger: there is normally no retaliation when on~ member of the group wrongs another, and this is true even in the case of homicide. The solidarity of the group must be maintained at all costs. To kill a member of the group must be only a last resort, and it is ind~ed extremely rare, for normally the group is too small to afford to weaken itself against its enemies. The usual reaction is the expulsion of the offender from the group which in the prevailing system of collective responsibilities and rights is itself a very severe fate. But the terrors of primitive " outlawry " have been exaggerated. Sometimes the outlaw would merely go to live with a distant relative until the trouble had blown over. 2 However, homicide within the kindred group is a relatively insignificant problem in primitive society. It has long been debated whether blood-revenge was ever permitted within the kindred group. Its rarity among contemporary primitive peoples justifies doubt, although it is of course impossible to be certain. A word of caution is also necessary against a deduction that is frequently made from the inner solidarity of the kinship group. The "in." group is always supposed to assume an attitude of hostility towards every "out" group. Unfortunately this theory, which is frequently contradicted by the facts of primitive life, is only another phase of the belief in the belligerency of primitive mankind. There is probably no other phase of primitive social organization that has led to so much wilful confusion as the proper evaluation of the kinship principle. The dogma of the "unity of the

The Peace of the Kindred

45

clan" is held to imply that there are no individual rights and duties among savages. But is is only in its external relations that the clan is a unity. In relations within the clan some individual rights and duties have always been recognized. It is only that these rights depend for their realization upon membership in the group. It might just as well be said that the modern dogma of the unity of the state implies an absence of individual rights and duties because in its international relations the state acts as a single entity. It is even less fair to assume that there are no stresses and strains upon the basic foundation of primitive society. There may be conflict within the kindred group, and compromises may become necessary. There are always forces tending to break down the traditional solidarity. There is a mingling of kin as well as a kin separatism, and to the extent that this takes place the institutions of primitive law may be profoundly affected. The expiatary encounter has been plausibly correlated with close blood-relationship of the tribes among whom it obtains. The same factor plays a part in mitigating the blood-feud, and perhaps in facilitating the acceptance of composition. It is by no means a contradiction but an affirmation of the kinship principle lvhen related kin refuse to apply it in all its rigours. The Plains Indians who intervene to prevent a threatening feud by inducing the parties to smoke the pipe of peace recognize the ultimate right of the kindred, and rely upon persuasion merely, not upon coercive authority. Malinowski attempts to demonstate the effects of cross-loyalties in the Trobriand Islands. 8 He assumes that the natives are in a state of transition from mother-right to father-right. In evasion of the claims of property and inheritance as well as the obligation of the blood-feud the father desires to align himself with his son rather than his nephew, who is his successor according to the principle of mother-right. But this source of conflict would not exist in a clan in which the principle of mother-right was as yet unchallenged, or in which the principle of father-right had become firmly established. Some critics of Malinowski have contended that there is really no conflict involved here but only a formal variation in family organization which is in this instance of a mixed type. Waiving this objection, however, it is probable that the emphasis upon the influence of this conflict in promoting the acceptance of composition has been overstressed. The desire to avoid the blood-feud may be readily understood even in the absence of such conflict. Composition has its own attractions as a means of appeasement.

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It is apparent, too, that in emergencies, the kinship bonds may even be transcended. The kin have already been observed to act together sometimes in dealing with incest and sorcery as well as other special dangers. The kin act by a common consent in the common interest, waiving, it may be presumed, their superior rights. Such action is no more a contradiction of kinship hegemony than the union of the kin in time of war. In a sense they conduct, indeed, an internal war against such an occasional malefactor. It might just as well be said that in civilized society the political state is no longer the hub of the social system because a lynching party has been organized. In any event the recognition of public "crimes" is a comparatively late development. The absolute control of the kinship group may be assumed to be the primeval form. It cannot too often be emphasized that the kinship principle is not an absolute but only a dominating principle in primitive society. It is simply the principle that overshadows all other forms of relations. To put the idea in another way, the kinship organization is the legal organization. But the legal always has in it a considerable element of fiction, and a legal principle is not to be regarded as nugatory because it is sometimes contradicted in practice. It may even be conceded that a savage may not always know exactly who all his kindred are. But neither does an American always know who his congressman is, or an Englishman who represents him in the House of Commons. Anthropologists particularly take legal dogmas too seriously. Discovering that the legal fiction does not entirely correspond with the social reality, they s:.1ffer such shock that they lose all respect for the legal fiction. The factor of mere local contiguity has also been stressed in primitive society as a basis of social cohesion. 4 Obviously some ties of local contiguity have always existed. This is only to say that from the very beginning of life there has been a spatial factor in human existence - what William Graham Sumner has called the factor of "emplacement." 5 But the question is whether this was the legal principle of social organization. Doubtless the factor of local contiguity is a germ of territorial organization, but the origin of a form is not the same as the developed institution, nor is there necessarily continuity in its development. The Ifugao have been singled out to show the undeniable influence of local contiguity in a people which is strictly organized on a kindred basis. The institutions of this interesting people, which

The Peace of the Kindred

47

inhabit the hills of Luzon in the Philippines, where they cultivate remarkable rice terraces, illustrate particularly well the basic characteristics of primitive law. Indeed, Ifugao law may be taken as a typical system of primitive law. It exhibits at perhaps its highest level the primitive system of maintaining order without benefit of courts. Its basic principle is said to be that " family unity must at all hazards be preserved." It recognizes not a single public "crime." Incest between a father and a daughter may be resented only by the girl's mother's family. Even the betrayal of a co-villager into the hands of the enemy, which is really treason, is a matter of concern only for the families involved. Yet in this system of kinship solidarity is considerable room for refinement, not only in the discrimination of intention but in the consideration of the proximity of relationship. Iletween the kinship groups mediate " go-betweens," without ·whom no transaction is consummated or dispute settled, and yet who have no official position or authority, depending for the success of their efforts upon their skill in bringing the parties together. The only flaws in the Ifugao kinship organization are that to a slight extent the fact that a miscreant is a fellow villager may be taken into consideration, as in the treatment of a thief who is a neighbour. While a total alien will be slain, merely a fine will be exacted from the co-villager. Certainly the influence of local feeling is here manifest to some extent, but the rules in these cases are not rigid. As a matter of fact, the relatives of a thief from a foreign district may choose to wage the bloodfeud if he is slain. On the other hand, a person who slays another in a drunken brawl may be killed by the relatives of the victim even of a co-villager. Co-villagers are often related, and it is certainly no very serious compromise of kinship solidarity to " presume" relationship in other cases, especially since the degree of relationship is always an important factor. Incleed, it is often true that a fiction of relationship underlies primitive groupings. The group may include artificial kindred by adoption, or only putative kindred. The size of the group may vary from that of a simple or enlarged family to a clan or even a whole tribe. The solidarity of the kindred is often popularly conceived to be synonymous with clan solidarity. But this notion, de-rived from Morgan's Ancient Society, which assumed the clan to be the universal antecedent of the family, is without foundation. Some form of the family may be assumed to be primeval. Even most of the critical anthropologists assume the family to be an

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aboriginal and universal institution. Thus when kinship solidarity is in question, only some form of kindred organization need be assumed. Where the kinship principle needs qualification is less in the direction of local than group solidarity. The attempt has been made by many anthropologists to show that the kinship tie is not the only tie in primitive society. It is also cut across by age and sex alignments. Numerous age classes are particularly characteristic of many primitive societies. But while age and sex play a great social role in primitive society, they are not the basis of the legal system, although they are factors with which the legal system deals. There is infancy and coverture in civilized society, too, but no one would argue that they " contradict " the political tie. This type of critical anthropological argument has been carried to such absurd lengths that primitive puberty and nubility rites have themselves been virtually regarded as forms of social organization. The only form of group alignment which actually transcends the kinship tie is the primitive fraternal organization or secret society. Primitives apparently are often even greater joiners than contemporary Babbitts, and they form associations of almost every conceivable variety from anti-feminist to dance and war organizations. But "secret" societies in the strict sense of the term are centred in only three regions - in Asia, Melanesia, New Guinea, and eastern Indonesia; in Africa on the west coast; and in North America especially in the Southwest. Moreover, comparatively few of the secret societies have developed recognizable " legal " functions, as, for instance, the Duk-Duk society in New Britain, the members of which assume judicial roles. In the Bank Islands, where wealth is very highly regarded, private property may be protected by joining a particular secret society. The secret societies which assume legal functions have flourished most, however, in West Africa, which is significantly also the region of highest primitive political development. There the secret societies especiallf engage in the systematic terrorization of outsiders, attempting by this method· to collect debts and punish thieves, and sometimes have been so powerful as to dominate the political chieftainship. But may these types of organizations be said really to contradict the legality of the kinship tie? They seem pretty obviously subversive organizations operating in defiance of the traditional communal forms. They are no more inconsistent with the formal validity of the kinship tie than the existence of the Ku Klux Klan, the Black Legion, or the Black Hand belies the juridical claim to allegiance of the mod8

The Peace of the Kindred

49 em state. Finally, it must be remembered that the primitive associations are quite often based upon kinship affiliation which is required either for ordinary membership or for tenure of the ceremonial offices. This would suggest that the societies are primarily an outgrowth of kinship ties. 7 It is widely held that primitive peoples are unable to distinguish between accident and design. " The whole distinction between accident and design," the sociologist Hobhouse has observed, " is by no means so clear to primitive man as it is to us . . . the nascent reflection of the savage is strangled at birth by the prevailing theory of witchcraft and possession." 8 But it is unnecessary to invoke a theory of demoniac possession. There is involved here not a peculiarity of the primitive mind but a mistaken corollary of the kinship principle. Savages very low in the scale of culture are perfectly capable of recognizing an absence of intention in the commission of a deed. It is recorded that among the Australian Dieri a youth escaped death for incest because it was recognized that he was an imbecile. 9 The Ifugao exact only half the ordinary composition when a child is accidentally killed by a spear in target practice.10 Intention is rarely evaluated in determining primitive legal liability, because it does not fit well into the prevailing system of collective responsibility. The emotions of kinship solidarity inhibit the operation of any fine sense of discrimination. Even in modern law liability is sometimes imposed for various social reasons although there has been no fault. Enough comparisons have been drawn between primitive and civilized forms of social organization to show that they do not always involve mutually exclusive principles. The kinship organization may long survive the creation of states and complex cultures. In rare instances, as in ancient Peru and among the Aztecs, the achievement of brilliant civilizations has been possible upon a fundamental basis of kinship organization. But even where political organization has definitely begun and the state has assumed the administration of justice, it must continue to deal with kindred and other groups, and some form of group solidarity survives in archaic legal institutions. In the Code of Hammurabi a city is made corporately responsible for failure to apprehend a brigand. By the English system of Frankpledge, which obtained there from the twelfth to the fourteenth centuries, the tithings were made responsible for the conduct of their members. The solidarity of the clan is popularly treated as a peculiar survival in modern China. But even in the West kindred solidarity is far from dead. Indeed,

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the state has been at its worst in the realm of family law. Compared with the law of property, the law of domestic relations is confused and undeveloped. The state blunders when it intervenes in family affairs. It may decree that husband and wife shall be one, but it has no effective methods for promoting this remarkable unity. A modern civil code may decree that a husband shall love his wife, but he may love his wife's sister. It is then for the kindred to restore the peace_- if it can.

"Property and law are born together, and die together." - JEREMY BENTHAM

CHAPTER V

THE ORIGINS OF PROPERTY

T

HE GROUP solidarity characteristic of primitive law works chiefly in relation to wrongs, but it extends also to property relations. Group solidarity in property .relations, however, obviously smacks of " communism." Indeed, the battle over primitive communism was the great battle of the late nineteenth century, and even today it is still a subject of controversy among anthropologists and sociologists. It is considered a matter of the utmost urgency to repel the insinuation that humanity was originally sunk in such barbarism as to practise communism. For if the existence of primitive .communism can be disproved once and for all time, then the" sense" of private property can be said to be part of eternal human nature, which is the foundation of all legal as well as social institutions. Yet the interminable dispute has been largely pointless. If humanity ever reaches a point in its history in which. communism becomes the prevailing economic system, the fact that it had no precedents will be entirely immaterial. A good deal of the blood and ink that have been spilled might have been saved if there had been agreement upon a definition of terms. Obviously the existence of a primitive communism as a matter of theoretical speculation can be neither proved nor disproved. The practices of contemporary primitives have probative but not absolute value. Even if the presence of any conscious theory of " communism " among primitive peoples must be rejected,

The Origins of Property

51

it is fair to assume an aboriginal state of non-property since the institution of property in common with other social institutions had to be elaborated from gradual experience. But what is " communism "? The answer to this question is far from simple. A degree of " communism " in the sense in which the term is not infrequently employed exists in every society and even in moderri capitalism. In no legal system have rights of property been absolute. There are always the rights of escheat and eminent domain, and numerous restrictions on the use of property. Even in the modern family it is frequently difficult to say who " owns " the sofa, the radio, or the dishes; it is only when the disruption of the family threatens that the question is raised by wife, husband, or children, and a court of law will find itself almost helpless to adjudicate the momentous controversy. Many anthropologists have triumphantly proceeded to disprove the existence of primitive communism by showing that practically all primitive peoples recognize private property in personal chattels. Indeed, it is true to say that the savage has a more jealous regard for objects of personal use than a civilized child has for its toys. The relation between person and thing is.deemed so intimate that the chattel is in a very real sense hardly more than an extension of the person. Objects of personal use are the subject of so many tabus that it is often considered perilous to drink from another's utensil. Especially under circumstances in which the claim to personal property may come into doubt, property marks are in wide use. Even children are considered to have rights to their own personal possessions. But is this attitude towards personal objects a recognition of " ownership " ? Even in the law of the culture peoples such an abstract conception as owne:-ship is a relatively late development. If modern legal notions are to be applied to primit,ive institutions it would be better to consider the control over chattels as a phase of the law of persons rather than of property inasmuch as the chattel is considered only an extension of the person. The" property" sense is apparently so little developed that there is among primitive peoples a widespread practice of destroying personal objects on the death of the owner, and these usually include even his hut. The concept of " possession" rather than ownership is far more suitable in describing the primitive institution. The concept of ownership develops only from long continued and undisturbed possession, and even then only when possession begins to be frequently surrendered in the development of such legal transactions

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as pledges of personal property. Until the creation of legal obligations becomes habitual there is no need for any claim of ownership. In combating primitive communism, the attempt has even been made to prove that primitive property conceptions are so sophisticated that primitive peoples even recognize rights in incorporeal property such as "patents" and "copyrights." Widespread examples have been collated from among the Central and Greenland Eskimo, the Plains Indians, the Nootka of British Columbia, the Andaman Islanders, the Kai of Papua, the Koryak of Siberia, and the natives of Eastern Torres Straits Islands. 1 But these rights turn out to be only rights to the use of magical hunting-formulas, charms, or names, the singing of certain songs, or the recounting of certain legends. Is a recognition of a distinction between " corporeal " and "incorporeal " rights psychologically demonstrable in these cases? Despite the fact that the rights are transferred for a consideration, the transactions do not have a commercial flavour. It is not so much necessary to transfer the rights because they are recognized as property buf because, being magical, a ceremonial payment is required to make the magic effective. Apart from those cases where the right is purely hereditary, the" owner" of a charm cannot give it away even to a son or daughter: a sale is regarded as necessary to ensure its continued effectiveness. Moreover it is probable that a spiritual rapport must exist between transferor and transferee. These immaterial property rights are not illustrations of primitive sophistication but of the primitive simplicity that emphasizes the personal element even in property relations. It is wrong to criticize modern legal historians for regarding the distinction between corporeal and incorporeal rights as a characteristic of mature law. Even assuming that primitive charms or songs are the subjects of immaterial property rights in the fullest sense, they certainly would not survive the development of judicial machinery for their enforcement. All of the examples of primitive incorporeal rights come from societies in which political and judicial differentiation exists only in embryo if at all. They are thus only very imperfect customary rights, and it remains true to say that early law is hostile to incorporeal rights. Early courts have trouble enough in establishing their authority without seeking to examine titles to charms. But the crux of the dispute as to primitive communism does not lie in the problem of personal property, material or immaterial. Not even Morgan, perhaps the crassest of the evolutionists,

The Origins of Property

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and the one who because of his influence on Engels may be regarded as the most important figure in the controversy, contended that primitives did not recognize individual rights in personal property. 2 Communism does not imply that no exclusive possession of objects of personal use can be recognized, nor that there are no individual rights and obligations in a communist society. In the nature of things there can be little or no communal interest in a loin-cloth. A man's spear is no more than an extension of his hand and he ·would no more think of partin3" with one than with the other. But it may be quite otherwise with respect to such objects as play an important role in the securing of maintenance and which, because of the considerable labour required for their production, may be scarce. Thus communal ownership of a fishing canoe is not uncommon. Among the Yukaghir boats, houses, and nets are considei:ed the joint property of the entire family. 3 According to a Chukchi custom, a man who has a spare boat allows his neighbours to use it. 4 In the Trobriand Islands the" owner" of a canoe cannot refuse its use, which makes him a strange owner indeed! Most anthropologists have attacked primitive communism by garnering evidence from individualist peoples. But sometimes it is done even with evidence from a communistic people.• The distinguishing characteristic of a communist society is the communal ownership of the means of production. In the simplest of primitive societies these are, however, so personal and so freely available to everyone, consisting of such means as the digging-stick, the club, the spear, that there is no attempt to monopolize them. The chief and universal means cf production is the bnd, and the true test of communism i3 the manner of its utilization. It is precisely here that the plainest evidences of an aboriginal communism are to be discovered. Among hunters and food-gatherers, as well as nomadic herdsmen, who are the simplest of primitive peoples, private property in land is almost entirely unknown. There would, indeed, be no particular reason for the appropriation of the land until dwellings and crops had become permanent. As long as game shifts and the land becomes exhausted, no piece of land can have a rental value above another. The simplest primitive peoples are more interested in the yield of the land - its game, trees, fruits, grains - rather than in the land itself. The land is desired only because of the valuable products it yields. To the hunter, as Sumner aptly remarks, land laws are really game laws. 8 It is only among settled agricultural peoples who practise

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II. Primitive Law

rotation of crops that individual appropriation of the land itself begins. This is particularly trµe where intensive methods prevail, as in the cultivation of vines, trees, or gardens, or where irrigation has to be employed. Since the connection between agriculture and private property in land is generally conceded, the attempt has beeri made to show that individual ownership exists also among hunters-,and foodgatherers. But the most diligent investigation has been unable to uncover more than a few exceptional instances among such peoples as the Northeastern Algonkian Indians, or the Veddahs of Ceylon. 7 On the other hand a communal system of land tenure would seem to have existed among such a highly developed agricultural people as the Aztecs of Mexico. As a matter of fact, however, among neither the Algonkians nor the Vedda is there an undiluted system of private property in land, and the same statement will hold with respect to primitive agricultural peoples generapy. In the first place, ownership is almost always in some kindred group rather than individuals, although the size of the group may range from a closely related body of blood-kindred to a whole clan. Indeed, when such terms as " family" or " clan " are employed, it is often difficult to determine the exact nature of the group, and sometimes when reference is made to "individual" ownership it is really family ownership that is meant. Thus even where tribal communism does not prevail, there is at least some form of collective ownership. A great deal has been made of the fact that a particular tribe, or clan, will jealously guard its hunting-grounds as against others, but surely collectivism need not be universal! Certainly also it is a specious form of argument to emphasize that the group in which collectivism prevails is less than "the larger political group " when there is no p.olitical organization. It is a particular characteristic of a developed system of private property that as far as the right of transfer is concerned, ownership is almost absolute. Even mother earth is a commodity which may be bought and sold in the market like all other commodities. But free alienation is almost unknown among primitive peoples. Land is not a mobile value. The land is held within the group and descends to its members although there may be certain preferential rights. The few exceptions are cases in which land has recently been reclaimed and brought under cultivation, as in the Banks Islands and the Fijian state of Rewa. 8 The widespread recognition of a right of redemption in the family may be regarded as a survival of the rule of inalienability. On the other hand the aristocratic

The Origins of Property

55

attitude which refuses to regard the land as a commodity and elevates the landlord above other classes is a perversion of primitive ideas. Even more emphasis is to be placed upon the fact that absentee ownership is unknown in most primitive societies. The owner is also the occupant. Possession is the whole law. Title depends upon effective utilization although among some more advanced peoples the original owner may regain a measure of his rights if he subsequently returns. Sometimes the occupant is entitled to hold the land he has himself brought under cultivation. Among the African Ewe anyone may occupy land belonging to a family of declining numbers subject to certain conditions as to the working of the land. 9 Among the Ifugao if land is abandoned, it is forfeited to the occupant for a period equal to the period of abandonment.10 Some systems of landholding may perhaps be described as "mixed." There may be individual holding of fields at the same time that woodland or pastures, besides wells, are held in common. The Asiatic Kirghiz may be cited as an example of a pastoral people which practice a form of seasonal communism. 11 Since good pastures are scarce only in the winter-time, claims to particular pastures are recognized only during this season of the year. The arrangement, however, seems to be of fairly recent origin and hence is not really an exception to the rule that while among pastoral peoples stock is owned by individual families, pastures are held in common. There may also be a type of shifting communism, which may be said to prevail when land is frequently reallotted. The Yakuts, indeed, had officers for reallotting land. 12 Trees, particularly in Oceania, may be individually owned, apart from the soil, which may belong to others, and the same is sometimes true of houses.13 All such practices have been regarded as additional evidence of the extreme sophistication of primitive peoples in elaborating property rights. But they are in truth the best possible evidence that the growth of property conceptions is very slow. Individual effort was rewarded by the allowance of individual claims when social needs would be served best thereby, but the common need was always paramount. General claims of " property" were a late generalization from the experiences of many generations of common living. Nor is it a proper deduction from the admixture of individualistic and communistic practices that "primitive communism " is a meaningless catchword. It proves rather that the conception of communism frequently entertained by anthropolo-

56

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gists is absurd. In any event, if communism is a meaningless catchword, so is individualism. The communal disposition of means of consumption gives perhaps a better insight into the spirit of primitive institutions than even the utilization of the means of production. The leader of a hunt or expedition very frequently shares the takings with his companions. Game and food may be shared even where a particular family has the exclusive right to work a given district. Such practices as these suggest the idea that even where the claim to hunt in a particular place is recognized, there is really involved no more than a division of labour. If a cultivator shares with other members of the community, he may be said to hold the land for the benefit of all. The important question is not who occupies the soil but what is done with the fruits of the soil. The champions of primitive individualism have indulged in extreme refinements in attempting to minimize the importance of food-sharing. It is pointed out that the taker of the game may have a prior right to a particularly succulent or desirable portion. The claims of other members of the community are declared to be "ethical" rather than "legal." It is averred that no one would help himself to food without permission, or resort to force. All such arguments only further serve to emphasize the strange notions of a communist society that prevail not only among the vulgar but among the learned. They are obviously derived from the antiradical dreadfuls, which see in communism the complete ·~bsence of all individual effort and reward and the prevalence of bad manners. The ingenious suggestion has even been made that foodsharing is to be interpreted in the same light as the system of ration cards in some of the belligerent countries during the World War. 14 But this system was put into effect to take care of an emergency, while food-sharing in primitive societies is normal. Perhaps, however, it should be described as a state of" permanent emergency" in keeping with the theory. It is this very state of permanent emergency, however, that may be cited as the strongest possible proof that "communism" preceded private property. Otherwise humanity might never have survived. The communistic cast of primitive societies is reflected in their political systems. It is for this reason that most primitive societies are organized upon a democratic basis. Government exists in only rudimentary forms. If there are chiefs they exercise virtually no power. There may be councils of elders, for whom the term " gerontocrats " has been happily coined, but they act only by

The Origins of Property

57

common consent. The absence of courts is primarily the result of virtual equality in property and status. Courts would be a needless luxury. Primitive law can be understood in terms not of the primitive mind but of primitive economics. There is the closest correlation between the material culture of the simplest peoples and their social institutions. These are not uncaused although, primitive economics being simple, it acts as a less absolute determinant. Indeed, the similarity of institutions among people of the same economic grade is remarkable. The peoples who are not blessed with courts are the hunters and food-gatherers and the more rudimentary pastoral peoples who have no trade or handicrafts. A statistical survey of the relation between the material culture and the social institutions of a vast number of the simpler peoples has shown the most marked connection between them. 15 Self-redress was found to predominate among 98 per cent of the lower hunters, and 84 per cent of the higher hunters, and among 70 per cent of the lower pastoral peoples. Moreover, these correlations would perhaps be higher if such factors as diffusion and population density had been taken into account more adequately and the statistical unit were made more definite. " Civil law" is necessarily scant in primitive societies. The reason for this has been a long standing mystery but it is easily capable of being unravelled. The preponderance of " criminal " over "civil " law has been attributed sometimes to the supposed turbulence of barbarian life, but it is plain enough that it is due rather to the fact that there is relatively little room for the development of civil obligations in primitive economic life. There are some property relations and rules of inheritance even in the most primitive societies, but normally individuals may not dispose of property as they please. This is the result of the prevailing group solidarity. There are some economic transactions, but they are hardly legal transactions. While contrary to a frequent assumption barter does occur in very primitive societies; it takes place usually upon a basis of ready exchange. Although credit barter may sometimes be undertaken, the transaction is not really regarded as bilateral. A transfer of property has been made on one side while a debt is now owed on the other. But since these types of loans are rare, the prevailing system of retaliation suffices. The legal vinculum, the chain of obligation, the bilateral and multilateral bonds which unite individuals in legal transactions, with all their endless opportunities for disputes, are still lacking.

BOOK III ARCHAIC LAW

"THE STATES began, so far as we can ;udge, with the beating down

of the clans into a vast dead level ·at slavery." -

GEORGE BRYAN LOGAN,

JR,

CHAPTER VI

LAW IN THE MAKING

T

HERE is a famous passage in Homer describing a trial scene depicted on the shield of Achilles. The elders are sitting on smooth stones in some place of sanctuary holding heralds' staves in their hands. Before them lie two talents of gold, and in the presence of a throng, encouraging two men who are the litigants, they are trying a case resulting from the commission of a homicide. One of the litigants is offering to pay, while the other is refusing to accept anything. The phrasing of the passage is enigmatic. 1 Are we to assume from the refusal to accept what is obviously a proffered composition that the blood-feud was still permissible in the Homeric period, or is the issue before the elders simply whether the required composition has been paid in full? Is this the first interference of established authority with the blood-feud? Are the two talents of gold, the amount of the composition, a procedural stake to be forfeited to the winner, or a court fee betokening a long established jurisdiction? The true interpretation of the Homeric trial scene has long been a subject of endless dispute among historians, 2 who, if they are interested in ancient law, are often unhappily driven to literature rather than legal texts for their sources. It is easy enough to understand the fascination of the Homeric passage. The transition from blood-feud to composition thus made manifest in the

[ 69]

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life of the Greek people, who produced one of the great cultures of antiquity, establishes a link between primitive and archaic law. The Greeks, even like primitive peoples, lived through the tribulations of the feud. The law of the culture peoples presupposes a background, however dark and obscure, of primitive institutions. Archaic law is law in the making. We are permitted to catch a glimpse of the process in the Homeric trial scene, the possibility of understanding which may be said to be almost a test of the value of studying primitive law. The most important revelation of the Homeric trial scene is the obvious fact that there is already a court available to litigants. If the elders are not mere arbitrators, as would appear from the two talents of gold, but constitute a court with compulsory jurisdiction, then the chances are that the blood-feud is forbidden. Yet this question is trivial compared to the mystery of the origin of the court itself, and, alas, the trial scene supplies only the hint that the elders are the judges. Moreover, despite our great knowledge of the social institutions of primitive peoples, there has been no universal agreement concerning the origin of the court, and even less agreement about the origin of the idea of the state, which is supposed to be responsible for the establishment of courts. When we can begin to observe archaic law, the miracle of the state court has long since been wrought. While really primitive peoples have no courts and no conception of the state, archaic people have both when they emerge into the light of history. Many have regarded arbitration as the origin of courts. The theory is that disputants first voluntarily submitted their quarrels to arbitration, and when this procedure had become sufficiently regular, were compel\ed to do so. At this point the court, which thus has " developed " out of " arbitration," has come into existence. But this theory, representing the altogether too simple type of evolutionism that always derives one institution from another by positing a process of gradual transformation, for all its plausibility probably has no foundation in fact. Certainly it cannot be said with confidence that this process of transformation can be traced in the institutions of any archaic people, despite the existence of remains establishing a practice of arbitration in a remote past. We have seen that some organized procedures for dealing with disputes exist even among simple societies that have no conception of the idea of a court. Illustrative of these may be arbitration by a chief, a go-between, the elders, relatives, friends, or even by-

Law in the Making

61

standers, but this process of mediation is no more the origin of the judicial function than the singing encounter of the Eskimo, or the expiatory encounter of the Australian aborigines. The appearance of courts represents an independent evolution even though the method of investigation employed by judges may be much the same as that employed by arbitrators. Indeed, it is this resemblance that is the basis of the theory that derives courts from arbitral agencies. Both may exist at the same time and side by side without affecting one another. Among the Greeks in many civil suits the dispute was first required to be submitted to arbitration, but this was only preliminary to the assumption of jurisdiction by the courts. The Hebrew judge is enjoined to "attempt to compromise before proceeding to judgment," and so was the Babylonian judge before him. Even modern judges before opening a trial may attempt to bring the litigants together, and modern chambers of commerce practise arbitration at the same time that courts decide disputes. Probably two thousand years from today, after another Dark Age, historians will argue that our courts developed from this arbitration - a theory, of course, that would be fantastically untrue. As a matter of fact, in their early days, when they are struggling to establish and extend their jurisdiction, courts show themselves to be hostile to arbitral agencies, and it is only after their power is unquestioned that courts actually begin to encourage resort to arbitration. Arbitration and adjudication are two processes that are different in their very natures. The one is voluntary and mediatory while the other is compulsory and binding. The court undertakes to do what no arbitrator ever did: it presumes to "declare the law." The aim of the arbitral agency was appeasement, while that of the court was to secure obedience. It may be that in early unstratified societies the court relied largely on the influence of public opinion to secure this obedience, but its judgment nevertheless had to be obeyed. The sovereign remedy of the court, however, is the sanction of force, which it either exercises through its own officials, or licenses the successful litigant to exert. We shall see later that the procedures of early courts often have a voluntaristic cast, but that this only disguises the direct application of unlimited force. The court is connected with the growth of executive authority, which always relies upon force to settle all conflicts, and thus makes force the central reality. The mystery of the court is not so much how men came to accept this force, but how force was endowed with the quality of " lawfulness " that is bound up with the conception

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of the state. It is only when the origin of the state is understood that the falseness of the arbitral theory of the court becomes manifest. Endless controversy has raged concerning the origin of the state, but when the theories have been carefully examined, it will be discovered that fundamentally they have much in common. Greek philosophers, church fathers, idealists and realists, Marxists and non-Marxists agree about the origin of the state although they do disagree greatly when they come to discuss its purpose. 3 It is assumed that the state arose when the family patriarch made himself into a chieftain; when priests or magicians endowed themselves with the attributes of divine rulership; when the old men established a ruling council, or gerontocracy; when marauding herdsmen descended upon peaceful peasants and conquered them; when some gifted individuals acquired ascendancy over other members of their tribe and secured recognition as superiors. 4 It is apparent that all these theories assume that the origin of the state was bound up with some form of social stratification, which if it did not result from force was the outcome of fraud, which is, after all, only another form of outrage. The chief point of dispute is really whether social stratification resulted from external causes such as conquest, which would subject one group to the domination of another, or from internal causes, which would produce opposing groups in the same community as the result of the division of labour, the accumulation of agricultural surpluses, or the exploitation of superior ability as well as superstition. In all these circumstances there would be produced an inequality which could be maintained only by force. The existence of a settled agriculture has generally been assumed to be almost a condition precedent to the appearance of the state. It is often said that the state now arose because men having become attached to the soil, and population having increased as the result of agricultural surpluses, some form of government became necessary. But as long as free land remained available, no such social conflict could have arisen as would make regular government necessary. There can be little doubt that if conquest was not the exclusive it was at least the primary factor in launching the state. The view is supported by an abundance of anthropological evidence, showing that raids by warlike herdsmen or other marauders upon helpless peasants have been common. The story of the goose that laid the golden egg is exemplified again: the conquerors allowed the tillers of the soil to live so that they

Law in the Making

63

might continue to produce for their benefit. The critics of the conquest theory ask how the marauders could have created the state unless the idea had already become familiar to them as the result of internal development. The fallacy of this attack is that it assumes that the state was a single act of creation, whereas any theory of the state seeks merely a point of origin for the unfolding of a long and gradual process. It was in the course of conquest itself that the idea of the state first suggested itself. The strength of the conquest theory is that it explains the growth of law so much more persuasively than any factor of internal development. The mixture of races resulting from conquest must have led to sharper conflict than any internal process of class differentiation. The latter could not, like the former, destroy so readily the kinship bond. But a conqueror's peace could be imposed where the peace of the kindred had until then prevailed. Stern "government" became necessary when violence disrupted normal relations. The conquered would struggle to preserve their own customs while the conquerors would seek to impose theirs, or at least to reserve them as their own privileges. Custom would thus become transmuted into "law." It would now have to be " enforced " as well as " declared." It still remains to explain, however, how there arose, despite the violence of conquest, the sentiment of the " rightfulness " of authority that is the very core of the state. That this sentiment came into being is all the more remarkable when it is considered that etatism was a substitute of a very artificial kind based upon mere propinquity and local contiguity rather than upon the natural bond of blood. 5 It is easy enough to say that the conquered or oppressed have no choice and may have even made the best of a bad bargain by deluding themselves into believing that they "consented" to their own degradation, for only thus could they magnify their own importance and " participate in the state." But it is also natural to suppose that the conquerors or the rulers helped the delusion along. Conquerors have never been eager to increase their difficulties by disturbing the conquered more than is necessary to preserve their own privileges and thus have. been content to allow the conquered to live by their own customs as long as these did not interfere with the purposes of their conquest. The best way to sanctify violence is for the conquerors to appear in the role of mediators between individuals, races, and classes. \Vhile serving their own paramount interest, they can attempt to reconcile the social contradictions they have created by interven-

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Boox III. Archaic Law

ing in the conflicts of their victims. Having deprived the latter of their rights, the conquerors now proceed to restore at least some of them. The victims, strangly enough, regard this as a tremendous victory, and their gratitude and rejoicing know no bounds. Conquerors particularly are in an advantageous position to deal with the disputes of other groups than their own. The bonds of kindred solidarity inhibit the clan in dealing adequately with the offences of its own members, and, as we have seen, it is doubtful even that the penalty for homicide was more severe than expulsion. The conquerors would not be so finical in suppressing the feud. By undermining the kinship bond, they made it easier to deal with individuals, and the isolation of the individual is a basic condition of the growth of law. It is one of the great advantages of the state that it is an artificial rather than a natural bond. Yet conquest could not be said to be sanctified until violence was suppressed not only among the conquered but among all the constituent groups of the society that had been created by conquest. It has been plausibly supposed in a charming fable that supplies the moral to be drawn from the course of evolution that the state was really founded when the ruling group executed one of its own members for perpetrating an act of unpermitted violence against a member of the conquered group. 8 There could have been no greater sacrifice - no clearer act of "justice." Thus was created the civil sacrament that expiated the original sin of the "state." Thus was the " objectivity " of the state established beyond cavil. The tale can be easily varied by substituting an indigenous ruling class for the alien conquerors. It was a mighty court that could do justice even against one of the priests, elders, or nobles. It must be apparent now why the first courts did not evolve from arbitrators, but destroyed them. There has long been speculation whether there ever were " popular " courts. If there were, they must have been courts of elders under the presidency of a chief and have existed only in societies in which social stratification had been brought about by a process of internal differentiation. It is even less likely that the first courts were set up to judge disputes between clans after consolidation of several by peaceful means. Moreover, if popular courts ever came into existence they could not have survived very long, for such courts could have appeared only in relatively prosperous primitive feudalisms that would become the natural objectives of marauding peoples. Not popular courts but chieftains' courts have been of importance in history. Among some of the ancient

Law in the Making

65

culture peoples a council of elders is seen assisting the magistrate, but they act in only an advisory capacity, presumably as the knowers of the ancient customs. Hence it cannot be assumed that the council of elders in itself proves the earlier existence of a " popular "court. Popular courts functioned in ancient Greece, but these are historically known to have been a later development - the result of a popular uprising against the aristocracy. It was the court really that launched the " state," for it was in the court that the sentiment of etatism, with all its devotions and loyalties, was first nurtured. The court was responsible for the etatistic myth because it was only through its officials that the common man was brought into contact with authority. The only "social service" (as we should say) performed by the governing class was the administration of justice - that is, the holding of a court. The waging of war and the collection of taxes, the only other functions of early government, were more difficult to disguise as civil sacraments. The early court betrays its origin in numerous ways. The prerogative of exercising the judicial function is confined to the chief or king and his council of nobles. If elders are not advisers they may be priests, but they do not, like the aristocracy, dominate the court. The participation of the priests only signifies that religion has come to be enlisted in reinforcing the civil sacrament. Again, the first "judges" were not professional judges, who performed no other function than administering justice, but were the same high and mighty persons who tlischarged all the business of the state. The modern way of describing the situation is to say that the "administrative " was not distinguished from the "judicial " function. Judging was only a phase of the business of government, however important in itself, and was an intimate part of the state policy that was determined by the chief or king and his council. There still was no talk of an " independent " judiciary- again to speak in modern terms. There was no differentiation of judicial from administrative functions in ancient Egypt, Babylonia, Assyria, Judea, or Greece. It occurred for the first time in the late Roman Empire, and the process was repeated in late media:val Europe. From the beginning the court has also had something of a crisis character, and every new crisis has a tendency to produce another court. Indeed, a multiplicity of courts usually marks the transition from archaic to mature law. Finally, the court is intimately connected with the process of political centralization, and the most important court is never the local but the royal central

66

BooK III. Archaic Law

court. Centralization is another reason why the " popular " court, if it ever existed, could not have long survived. In all archaic societies courts were held under the open sky at the town gate, or at a temple or other holy place. Thus was it held in the scene depicted on the shield of Achilles, and among the Babylonia'ns, Hebrews, and primitive Germans. The courts were not held at temples, however, because of any ritualistic conceptions. It was rather because the temple was the only public building large enough, and the priests sometimes participated as advisers, so that their convenience had to be served. The holding of the court at the town gate certainly suggests that the motive was to be able to accommodate large crowds. But the significance of all this may be not merely that in archaic societies the court supplied the populace with some diversion. It may have thronged to the court because it felt that only thus could it partake of the sacrament of the state. Sir Henry Maine has been responsible for the propagation of the idea that early law was first adapted to changing needs by the use of " fictions." He defined a fiction as " any assumption which conceals, or affects to conceal, the fact that a rule of law has undergone alteration its letter remaining unchanged, its operation being modified." 7 In order, for instance, to permit a foreigner to sue, the Roman magistrate pretended that the plaintiff was a Roman citizen. Again, in order to avoid a loss of civil rights resulting from slavery, the Romans made believe that a Roman citizen sold into slavery by the enemy had in fact died in battle. The common law of England is particularly full of such fictions. Thus, to enable the plaintiff to bring a certain type of action for the recovery of personal property he was permitted to allege that the defendant had found the property although in fact the defendant had deprived the plaintiff thereof by force. Such particular fictions are almost numberless. But Maine was wrong in assuming fictions to have been an important agency of change in early law. The common use of fictions presupposes a greater degree of legal sophistication than archaic peoples possess. It is only in advanced legal systems that fictions become a luxuriant growth. Nevertheless, the tendency of jurists to search for fictions in " early" law reveals an instinctive appreciation of a significant truth regarding archaic law. While early law reveals few if any particular fictions, the very birth of law was based upon the greatest of all fictions: the idea that ultimately created the state. Jurists, who are, above all, fascinated by the basic concepts of all legal

Law in the Making

67

systems, tend to seek them in archaic law, where, however, they have only their beginnings. Failing to distinguish between particular and conceptual fictions, they have come to speak in general of the importance of fiction in early law. The growth of law led to an increasing degree of intellectual abstraction in which the real qualities of men and things were subordinated to the objectives of the political means. ·when this process had been completed, purpose was banished from the law. The greate6t of all fictions was the concept of the state as an external power, standing above all society and creating law for society. A whole series of fictions was involved in the sanctification of force. Litigants were compelled to submit to judgment, but still they distrusted unfettered judgment. Thus, although judgment in its very nature involves discretion, it was necessary to invent the fiction that there was always a pre-existing rule that bound discretion. The law itself was partial. All the more reasons therefore for the existence of the fiction that the judge was impartial, and that he never created the dooms he spoke. In its final maturity the law was to produce the most famous of all fictions, that all men are equal before the law - a fiction only less gross than the proposition that all men were created equal. At the very heart of jurisprudt;nce lies the problem·of the" political" question. Jurists now distinguish between " legal" and "political " questions. A political question is now conceived to be one with which a court should not meddle because it involves the political organs of the state and such matt,ers of high policy that a court would be rash to attempt to make, let alone enforce, a decision. But every legal question was originally a political question because of the support of the individual by his kindred group. It was made a purely legal question by pretending that the only interest before the court was that of the litigants -in other words, by pretending that the supporters of the litigants - their clans, families, friends - were not involved. Every legal question is still a political question in the sense that a legal decision is not merely the result of adapting means to ends but involves also a factor of political policy. The greatest of all fictions is that society does not have a direct stake in every" private" legal controversy . .Archaic courts, which still dealt with men who produced primarily for use and not for the market, and with forms of tangible property, like fat lands, cattle, and slaves, merely distinguished between various kinds of persons and property. But since they generally permitted slavery, they at least took the first step in the

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BooK

III. Archaic Law

process of abstraction by assuming men to be the subjects of prop· erty. Eventually all men were to become merely Juristic Persons, the abstract integers who had a capacity for legal rights, and property was to become merely an abstract right of dominion. The very economic systems upon which archaic law rests reflect its origin in force and violence. These systems were either primitive feudalisms or slavocracies. The economic system of feu· dalism is based almost exclusively on agriculture, but in the slavocracies there was an increasing degree of trade and commerce, particularly in the ancient city states like Babylon, Athens, and Rome. War and conquest extended their power. The great empire-builders have always been the great lawgivers. Roman law became dominant in the ancient world because Rome conquered practically all of it. The vocation of the Roman was war; his avocation, law. 8 The character of archaic law, which becomes particularly harsh in the last phases of its development, also betrays its background. Not only does it treat persons as property but it commonly allows even debtors to be sold into slavery. Debt slavery is, indeed, an inevitable incident of the economic system of slavery. Archaic law also emphasizes the institutions of pledge and suretyship, which, because kinship solidarity was disintegrating and mutual suspicion and distrust were rife, required debtors either to post forfeits or to find guarantors to ensure the discharge of legal obligations. Yet archaic law has not entirely succeeded in isolating the individual, for the pater familias, the family head, tends to remain at least something of a petty despot. The great concern of archaic law, like that of primitive law, is still with injury, which is to say that it is primarily a law of wrongs. Its general tendency is to assume an ever increasing degree of control over the system of composition and to eliminate self-help. While its interference is at first intermittent, for " private" wrongs do not seem to threaten the safety of the " state," which has more engrossing interests, the suppression of the feud becomes ever more determined with the consolidation of political power. The greater the degree of social stratification, the greater is the necessity for interfering in the social struggle, for the privileges of the rulers only tend to demoralize the ruled. Even in late archaic societies, in which there has been a considerable growth of trade and the division of labour has begun, the law of wrongs remains of primary importance. Although legal forms have become available for the more simple economic transactions, the breach of obligations still tends to be

Law in the Making

69

treated upon the premises of the system of composition - that is, a breach is regarded as an injury for which compensation must be made so that retaliation may be avoided. It is particularly significant that late archaic law resorted to a method of curbing violence that is unknown to primitive law, the lex talionis, the law of an eye for an eye, a tooth for a tooth, that is laid down in the Holy Scriptures, but played an even greater role in Babylonian law. The refined cruelty of the talionic law expresses the very genius of the early state. It should be easier now to understand Maine's paradox that in the development of law the sequence is from judgment to custom to legislation. In the material sense, customs existed before the constitution of courts, particularly customs governing marriage and descent and retaliation for wrongs. But the custom had to be declared to be law by a judgment in order to receive the necessary etatistic stamp. Since there were likely to be competing customs, the stamp of approval was all the more necessary. It is in this sense that there is no law until there are courts. Even legislation - that is, new law decreed by the king and his council seems to emanate from the court, because it, too, is held by the royal council. To this day the English legislature is sometimes called the " High Court of Parliament." In the last analysis the existence of the court has proved more important than the law it has declared. The rules for settling controversies have constantly changed, but the court, the fundamental method of settling them, is still the same. Indeed, courts might never have promulgated rules if it had not been necessary to delude the governed. "Tribunals can act entirely without law," one jurist has written; 9 and another has observed: "Law is secondary and unessential. . . . The administration of justice is perfectly possible without law at all." 10 The court was the first - and perhaps the last - great legal invention.

70

BooK III. Archaic Law "THE KING has a peace which devours all others." -

F, W. MAITLAND

CHAPTER VII

THE KING'S PEACE

T

HE AMERICAN reader who has perused stories of crime in the newspapers or served on a criminal jury may have noticed that indictments, after reciting the charges against the accused, conclude that his acts were "against the peace and dignity of the state." In England, too, indictments charge that the criminal acts have been committed" against the peace of our Lord, the King, his Crown and Dignity." Thus does current English and American practice still preserve one of the most potent conceptions of archaic legal systems which has long been discussed in terms of a special "king's peace." '' The familiar conception of modern times is that the administration of justice is the primary function of the state. When kings have been the heads of states, they have simply been conceived as the guardians of the justice of the state. But since archaic law is law in the making, there exists as yet no such all-embracing conception. The individual has rights which are recognized, but an attack upon them is considered as directed primarily against his group rather than against such abstractions as the community, the public, or the state. Since the interference of government in the quarrels of individuals is at first hesitant and intermittent, it is confined to the regulation and implementation of the system of composition, and every act of intervention has in a sense a very special character, seeming to require special justification. Under such conditions there can prevail no conception of regularity in the administration of justice. Archaic law may be described therefore in terms of the gradual extension of a series of special protections in connection with special occasions. The most potent of these usually proved to be the king's peace. The king slowly proceeded to extent his powers over the administration of justice. It is long before the primitive king becomes something like a despot, and even the great marauding conquerors of historical times who assumed the royal purple had

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no urgent desire to disturb at once existing systems of composition administered in the courts of the conquered. The king's peace was the decisive factor in the establishment of legal orders. There were societies, of course, that developed methods of controlling the feud and of suppressing offences considered dangerous to the whole community, although they crowned no king or enstooled no chief. But fundamentally the folk law of such societies would still be predicated upon the sway of the peace of the kindred, and this was not destined to endure. The connection between the development of law and conquest tended to make the king's peace a potent force in the growth of legal institutions. The very special character which the king's peace assumed at first, however, was due, apart from the king's preoccupation with his own more immediate interests, to such causes as the survivals of the solidarity of the kindred group or the equally troublesome influence of feudalism. The primitive king or paramount chief has possessed by virtue of his greater political power superior privileges as compared to his subjects or lesser chiefs and elders. At the very least he has a higher value in the scale of composition for offences. While the kin still play an important role in suppressing ordinary murder and theft, it is only natural for the ruler in the name of the community to take over the punishment of those acts which had always been put down by the community as a whole, such as sorcery and treason, now regarded as personal affronts to the king. 1 Indeed, among the Kaffirs "killing a man an·grily" is an offence against the king because it is held that the persons of all individuals belong to him. 2 For the same reason suicide is an offence against the king in both Dahomey and Ashanti. 3 A special king's peace is clearly recognized among the Baganda, whose king may punish misdemeanours and the breaking of tabus in his own enclosure.• Similarly in Dahomey theft and other minor offences committed in the king's houses are punished with special severity. 5 In West Africa generally adultery with the wife of a chief is a capital offence. In the same region the preservation of the peace must have been considered dependent upon the king's life, for when the drums announced his death it was the custom for the people in order to avoid violence to flee from the markets and public places and go into hiding. 6 The personal aspects of the king's peace are important because its territorial aspects are inhibited no less under the system of clan

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or tribal hegemony than under feudalism proper. But the spatial basis of the king's peace grows in importance as the existence of his court side by side with the courts of clan or fief inevitably begets the notion of appeal. This is only a phase of a general tendency to substitute the " law " of the chief or king for that of his subjects, especially when he is a conqueror. However, what might be called the procedural aspect of the king's peace is of relatively small importance in early archaic law, in which procedure, as we shall see, apart from the taking of oaths and ordeals, is not stereotyped. The appeal from the court of fief or clan may involve only trial by the king's own ordeal rather than by that of the local court, as is the case in Dahomey. 7 A common method by which the paramount chief on the Gold Coast secures jurisdiction of a cause is for the litigant to swear his oath. Since the paramount chief in primitive feudalisms usually has jurisdiction over false swearing, and the taking of the false oath might cause special injury to him, he must necessarily intervene in the controversy. 8 The peace concept has been expressly applied to the exposition of the law of archaic as well as primitive civilizations. 0 There are indications of the special importance of the king in the administration of justice in both the Babylonian and the Hittite codes. But obviously there can be found neither in the codes nor in the lore of primitive peoples elaborate rationalizations of particular rules which bespeak the existence of a special king's peace. The peace concept is obviously not a juristic concept of primitive and archaic law because juristic toncepts are a luxury of mature legal systems. Nevertheless, although no texts can be cited to prove that the overwhelming concern of primitive law is to prevent breaches of the peace, that this proposition is true is readily inferable from such facts as the great concern of primitive law with personal injuries, and the nice adjustment of the amount of the composition, which is not regarded as damages by way of reparation, to the degree of probability that the peace will be disturbed. 10 This is manifest from the way composition is baited with such inducements as multiple restitution and takes into consideration the rank, wealth, and power of the offender. Indeed, a composition, which depended at first entirely upon the voluntary agreement of the parties, can be best described in terms of the making of a treaty of peace, and the process which is involved here is comprehensible only in terms of the making of peace. Moreover, among a considerable number of primitive peoples there is recognized a special peace protecting the place where a market is held. 11

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The workings of the king's peace and the king's law are documented best in the history of the law of medi.:eval Europe, but it must not be forgotten that the early Germanic laws were only tribal laws. Apart from the king's own personal peace, there are many instances of the special protections he can extend to his more favoured subjects and retainers. Thus by Frankish law a fine was payable to the king for ravishing a maid in his service; by Lombard law a heavy fine was imposed for attacking a subject on a journey to the king, and a threefold penalty was payable for quarrelling in the royal palace; by Scandinavian law it was even a breach of the king's peace to wound a man when the king was present in the same district. It is important to emphasize, however, that not all of the extensions of the king's power over conduct can be rationalized in terms of a special king's peace. The assertion of such a peace was, after all, only an excuse for his intervention, and sometimes no good excuse could really be found. It is sometimes better to talk of the king's law rather than the king's peace. In some cases even in primitive feudalisms the intervention of the king is purely arbitrary, and in the final stages of archaic legal systems a concept of the king's violence better expresses the true state of affairs. It is really the king's interest rather than his peace that is involved, although his ascendancy created a tendency to rationalize the one in terms of the other. It is the fact that the king has been curbed in modern states that leads us to prefer to think of his works in the past as extensions of peace, and the same tendency derives from the great preoccupation of primitive and archaic societies with the preservation of the peace. Originally the king in extending his peace was far from disinterested. As Stubbs said of the Norman kings, "it was mainly for the sake of the profits that justice was administered at all." 12 If the king enforced acceptance of a composition, he made certain that he would get a generous share for his trouble. The taking of this share, which has somewhat euphemistically been called "peace" money, is evidenced not only among surviving primitive tribes but in ancient codes. And then there were all sorts of forfeitures and fines as well as exactions of forced labour which tempted the king as he waxed mighty. If the king's peace could be had only at a price, that price was far greater than the peace money. The price eventually paid was the disruption of the peace of the kindred, and it was long before a general peace could be restored. The king'.;, law was really new law even where no violent and external conquest occurred, and

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the new expedients could not always be reconciled with the old. At best they were supplements to the existing ways. The conception of a public peace did not grow out of the control of bloodfeud and composition which were its direct antitheses. This control produced only what is now known as the civil law of wrongs - the law of tort or delict. The suppression of blood-feud and composition for murder and theft was doubtless resisted as a serious usurpation of ancient privileges, and for this reason could not further notions of general peace. It is only in the sense that the potential state of war bred the idea of the special peace that there is a connection between the justice of the clan and that of the king. A bridge existed possibly in the king's assumption of jurisdiction over those unamendable offences which had been suppressed by the community, but it does not necessarily follow that these were always his first concern. It was only when ordinary murder and theft became matters for the king's cognizance that it could no longer be perceived that the acquired jurisdiction was an outgrowth of the system of composition. The medi~val sources are full of references in one form or another to the social importance of the preservation of peace.19 In the time of Charlemagne orders of the king's court especially enjoin the keeping of peace after the making of a composition. One of the gravest of problems discussed in medi~val councils and synods was the problem of keeping the peace. But above ·an, the early Germanic laws are full of indications of special relations of peace in connection with particular persons, places, times, and even things. A freeman's home, the court or moot, the fair, the place of worship, may each be under the protection of a special peace. The recognition of a special peace did not involve, however, the recognition of a new wrong. It merely created a special protection against admitted and recognized wrongs by increasing the ordinary composition or by permitting the intervention of the king. The greatest development of king's law in the early medi.eval period was achieved under the Merovingian and Carolingian kings in the Empire of the Franks, which reached its apogee under Charlemagne.14 Something like a common law resulted from the frequency with which cases were taken from the local courts to the king's court. In the reign of Charlemagne the power of the king was strengthened by appointing royal missi, who were itinerant circuit judges perambulating the various local judicial districts and holding courts, as well as supervising the administration of

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the count, who was the king's officer. Moreover, in the Frank Empire there was a considerable amount of legislation by the king. These royal acts of legislation have been called " capitularies." The activities of the Frankish kings may be taken as an illustration of the methods by which royal justice made headway against tribal justice, but the methods themselves were not unique. 15 The Frankish kings gradually extended their control over the traditional composition procedure not only by enjoining the keeping of peace after composition but by outlawing for contumacy litigants who ignored summonses to appear. This procedural outlawry was far superior to the process of the folk laws by which a litigant seized goods of his adversary to assure his appearance. But the composition procedure was based upon far different premises from those of royal justice, which made strides by ·dealing with situations with which it was powerless to cope. The king proceeded primarily agains·t the professional thief and malefactor whom the Franks called criminosus, who could not be dealt with under the system of kindred responsibility because he was as a rule without family ties and by flight could easily evade the justice of the clan. Indeed the criminosus as early as the end of the sixth century received short shrift as the result of the application to him of an infamy procedure which permitted him to be executed upon the mere oath of five or seven men of good repute in the neighbourhood. It might be said that the king by allowing the neighbours to take the place of the accusing kin was only extending the composition procedure, but this was such a departure from the basic tenets of that system that it was really revolutionary. The king's justice grew by monopolizing the economic sanctions of the system of composition and by extending control over the execution of sentence. The king probably ga:ned this control by taking over the punishment of the bootless offences, which had always been considered wrongs against the community, as well as by controlling the exercise of the right of redemption under the system of composition. The most famous of all Frankish procedures was the inquisitio, or inquest, whose origin and history are obscure. It may have derived from Roman sources, but may just as well have been a development from taking the oaths of witnesses in certain accusations. The inquest, which disappeared on the Continent with the later decay of royal power, is supposed to have travelled via Normandy to England and taken firm root there, becoming eventually that "palladium of liberty," the English jury. But even this his-

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tory is not certain, for the inquest was in its origin an engine of royal domination rather than popular control, and in England came to be applied to civil as well as criminal cases. The Frankish official by means of the inquest was enabled to summon the most prominent men in a neighbourhood and compel them to reveal upon oath not only what ordinary crimes had been committed there but also whether there had been any misfeasance or malfeasance by royal officials. The English development was to convert this system of neighbourhood accusation into a system of trial of facts by men of the neighbourhood. 18 Since as a method of proof the jury was preferred to less rational modes of trial obtaining in archaic law, it has always constituted one of the chief examples of how royal justice was able to supersede clan and feudal justice by offering litigants a superior procedure. The procedural theory of the development of the king's law, however, while it contains certain elements of truth, overemphasizes the rationality of the process of its growth and tends to obscure other changes, which represented simply the widening by analogy of existing concepts of wrongs or which were accomplished by more or less arbitrary fiat. Moreover, in so far as the procedural explanation is justified, it puts the cart before the horse and attributes new departures to procedural accretions rather than to felt social wants. The royal Frankish law, which was not directly dependent upon the composition procedure and hence is more truly characteristic, sterns from what is called the king's ban power. The ban was a royal command which the king could give because of his prerogative of issuing orders, and having a mulct of sixty shillings for disobedience. The basic character of the ban in the system of royal justice is attested by the fact that the wrongs which the king could punish came to be denominated ban cases. There were eight classic ban cases in Frankish law. The ban was important in the growth of new substantive law as well as new procedures. In the Frankish sources we read of no special king's peace which safeguards the person of the king and his environs, but the type of special protections involved existed; they were merely secured by the extension of the king's ban. Under the king's peace ban fell such persons as-royal officials, widows, orphans, clergy, penitents, Jews, and merchants, and such places as consecrated land, homes, forests, and planted fields. The Frankish ban was probably only a weaker revival of the Roman imperium, and the absence of a special peace protecting the person of the king and his servants may be

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77 further explained by the hypothesis that the Roman idea of lceste maiestatis had been received. But that it was received in an attenuated form only is apparent from the fact that the king made attempts to bolster his jurisdiction by exacting special oaths of fidelity. From the fact that those who were subjected to procedural outlawry by the king were said to be put extrasermonem regis (out of the protection of the king) it has sometimes been assumed that the existence of a general king's peace was recognized. But in itself the extra sermonem regis did not imply that the king owed protection to every man, but merely that there had been a contempt of royal process. If the king was regarded as guardian of the peace, his general protection was apparently not regarded as valuable enough, for not infrequently the king issued precepts to favoured individuals putting them under his special protection. Such persons were then spoken of as in verbum Tegis, and a breach of the documented protection became an offence against the king. The collapse of the Frankish Empire inaugurated medixval European feudalism. By granting of immunities to the great lords the king surrendered gradually his prerogatives of judicial administration, and the courts of the fief all but superseded the court of the king. By a strange perversion the peace of the king survived largely as the guaranty of the feudal immunity: those who entered upon a fief to interfere with the privileges of an immunity violated the peace of the king. Although the bloodshed of the times has been somewhat exaggerated and the old customs did to an extent maintain themselves in the courts of the fief, there is no doubt that the feud revived and was conducted with greater ferocity than it had ever been in any primitive or archaic society. It was the church that, towards the encl of the tenth century, took the first steps to end the prevailing anarchy, by proclaiming in various countries the treuga Dei, or Truce of God, which was only the archaic idea of the special peace, adapted to the purposes of the church. As the institution of the Truce of God made progress, a perpetual peace was established for churches, church property, and holy places, holy men, and holy occasions, and even for merchants and peasants and domestic animals; the plough itself was made a sanctuary, and all men who fled to it were declared to be in peace. A characteristic feature of the Truce of God was the prohibition of fighting during a long week-end from sundown Wednesday to sunrise the following Monday. As the Frankish king relied on special oaths of fidelity, so the church adopted the devices of assembling princes and nobles and having them swear to obsen,e the

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peace at a placitum Dei. Thus the basic sanction of the peace of God was the oath, but the punishment for violation was not the royal ban but excommunication. After penance the peace which the offender had forfeited by his act was restored to him. It was only towards the end of the eleventh century that secular penalties began to be imposed for violation of the Truce of God, but this development was impeded by the mutual suspicion between the great lay feudatories and the bishops. The movement for the Truce of God began in southern France, but spread rapidly on the Continent. The peace of God was proclaimed for the whole German Empire by Henry IV in 1085, and it was eventually proclaimed for the whole of Christendom by the Council of Clermont, which met in 1095. The Truce of God appears to have been inspired as much by the economic as the spiritual interest of the church in peace. As the result of recurrent crop failures, the fatter church properties were in special danger from the violence of the starving, and the great bishops, who were themselves among the greatest of the feudal immunists, invoked the Truce of God because the secular means of law-enforcement were so inadequate. The late Middle Ages also witnessed a revival of secular peace legislation in the so-called Landfrieden which were proclaimed in the Holy Roman Empire. The first "peace of the land" was proclaimed in the Empire of Henry IV in 1103 for a period of four years, but Frederick Barbarossa proclaimed a general land peace in place of the temporary local enactments of former rulers in 1158. Peaces were also established, however, by the princes for the provinces. The primary purpose of the land peaces was to regulate the waging of feuds and to distinguish between crimes and permissible feuds as well as to give immunity from feuds to certain persons such as the clergy, merchants, and peasants and to bar them in certain places such as churches, highways, and villages. The Landfrieden were a pledged peace, buttressed by oaths, but the taking of the oath might be compelled. Although there were also enacted royal ordinances dealing with specified crimes, the Landfrieden established the basic conception of crime as a breach of the peace. There has long been a controversy as to whether the Landfrieden evolved from the Truce of God.17 While there was no doubt a mutual influence, there would seem to be no good reason for assuming that the special peace of the ruler depended directly upon the peace of t_he church and grew only because the church needed to reinforce its spiritual penalties with secular means of enforcement. Both the treuga Dei and the Landfrieden were manifestations of

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the older and more basic idea of the special peace. There is no more reason for assuming that the Landfrieden evolved from the treuga Dei than there would be for assuming that the latter evolved from the Germanic house or moot peace. Indeed, one land peace, the Weissenburger Landfriede of Frederick I for Rheinfranken of 1179, was expressly proclaimed as a renewal of an old peace of Charlemagne. As far as their terms are concerned, those of the Landfrieden do not correspond always to those of the treuga Dei. The first Landfrieden were limited in duration and had as their objective the unconditional pacification of ce;rtain places and subjects, while the treuga Dei were continuous and at least first aimed at the suppression of violence during certain days and seasons. The necessity for the treuga Dei does not argue that the king's, or princes', or duke's peace were non-existent when the former were promulgated; it only argues at most that they were not very effective. Moreover, the church, which was jealous of the temporal rulers, would not have sought their aid unless they had means of enforcing peace which were worth having. Since there were special temporal peaces, however limited, there would seem to be no need to attribute one of them to the implementation of another special peace, the peace of God. In view of the Norman Conquest of England, and the importance of the peace concept in English law, the question of the existence of a duke's peace in Normandy and its dependence upon the duke's enforcement of the treuga Dei has received special attention, and the significant factor in the establishment of the duke's peace has been taken to be the duke's assumption at the Council . of Lillebon held in 1080 of the talk of punishing truce-breakers. But there is no more reason to suppose that the duke's justice became a reality in this way in Normandy than in the Holy Roman Empire. As a matter of fact, at the Council of Lillebon enforcement of the truce was vested first in the offender's own lord; it was only when the latter refused to surrender him that the bishop might betake himself to the duke's Yiscount; not until Henry I's ordinance of 1 135 was the duel in homicide cases to be held in the duke's court. But that the duke's peace was already a good deal of a reality at the time of \Villiam the Conqueror is sho1'·n by an inquest which, although taken in 1091, records the incidents of the duke's justice in his reign. It is apparent from the inquest that the feud was already severely limited, and that the duke was asserting many rights of high justice as against his vassals.18 The Norman duke, indeed, persistently asserted authority

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over the barons, and his control of the ecclesiastical establishment was far greater than elsewhere. When William the Conqueror, on arriving in England, put his followers" in pace mea," he doubtless took the precautions of any conqueror, but he was already asserting a peace which he possessed. When at the same time he promulgated an ordinance, the Lad, regulating proof in causes between English and French, the step did not represent a beginning of cognizance over crime but only another effort to protect his followers by assuring them of the vital privilege of trial by battle. The last thoughts of a conqueror are usually with the enforcement of ordinary criminal law. Under the conditions of war he rules by the laws of war, which are no laws worth mentioning. In any event, the extent to which Norrnari law replaced Anglo-Saxon law after th~ Conquest is obscure. As far as concerns the relation of the Truce of God to law-enforcement in England, it cannot even be shown that treuga Dei were ever proclaimed in England. Thus it is precisely in the one country where the Truce of God was unknown that the king's peace became the basis of the crown's jurisdiction. Indeed, in England not only did a centralized royal justice develop which still obtains today, but the breach of the king's peace became its fundamental test. 19 In other words a peace-breach formula becomes definitely established in the common law which was to become the law of a great part of the modern world. In this the common law, which has never ceased to retain something of the colour of archaic forms, has simply achieved the logical development of a basic tendency of archaic law. But a peace-breach formula evolved also in the later Germanic law of the Continent, and the only peculiarity of the English development is its strength and continuity. Feudalism was never established with the same degree of thoroughness in England as on the Continent and was destroyed much earlier than elsewhere. Thus the king's law and the king's peace were enabled to flourish more luxuriantly than in other states. But the same feudalism facilitated the adoption of the concept of the bre,!ch of the peace as a characteristic of the king's law. In encroaching upon the jurisdiction of the popular and local courts the plea that the king's peace was endangered became the regular test of the jurisdiction of the king's courts. Originally only one of the" pleas of the crown," the breach of the king's personal peace, became the foundation not only of all "the pleas of the crown," which are the basis of modern criminal jurisdiction, but also of the civil action of trespass, in which it had to be alleged

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that the defendant's act was done with violence and against the king's peace, and the action of trespass became by a series of fictions the most fruitful source of the civil jurisdiction of the king's courts. The personal peace of the king in England in Anglo-Saxon times was quite extensive and more fully developed than in Frankish law: there were regarded as offences against the king acts of violence committed on premises where the king was present or against persons in his service or involving theft of his property. The king's peace also extended to acts of violence on the king's highway- a conception that proved particularly fruitful in its development in England. In certain districts in which he was specially interested, or at certain seasons, the king also had certain pleas, which later came to be denominated " pleas of the crown," which did not belong to him over the whole country. In later Anglo-Saxon times there was the grith, a special peace given under the king's hand and seal to particular persons, which corresponds to the Frankish verbum regis and subjected the offender to punishments of extraordinary severity. There is also some evidence of the exaction by the king ·of special oaths of fidelity. A great emphasis upon the problem of peace and the keeping of the peace may indeed be explicitly traced in the history of the Anglo-Saxon period. At the time of the Norman Conquest the" pleas of the crown" in England were rather limited. Apart from infractions of the king's personal peace, reteipt of outlaws, and neglect of military duty, they included only forsteal (ambush) , hamsocn or hamfare (attack on a man's house) , and robbery on the king's highway, offences manifestly based upon notions of special peace. The Norman duke's peace wedded to the peace of the native kings, produced in the course of the twelfth century an immense expansion of this catalogue of offences, so that it included all the serious offences against the person other than open homicide. Yet the king's peace was still deemed so personal that it was conceived to die with him and had to be proclaimed anew by his successor. When in 1272, upon the death of Henry III, the King's Council proclaimed the peace of Edward I, although the new King was away on a crusade, the step was regarded as revolutionary. Thereafter the king's peace remained permanent and unaffected by his death or absence from the Kingdom. To describe the precise means by which the king's peace was made effective would be to write a large part of ~he history of English law. But in general it may be said that they were not fundamentally different from those which had been employed in the

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Frankish Empire and were a combination of Anglo-Saxon custom and Norman usage. As immemorially, the king's justice was given its start by the levying of forfeitures and the imposition of outlawries, and entrenched itself by undermining the local popular jurisdictions of hundred, shire, and moot. The competing royal courts began as undifferentiated branches of the royal council. Itinerant justices went on circuit in a manner reminiscent of the Carolingian missi. The role of the English jury in facilitating the claims of the royal courts has already been mentioned. The Frankish ban also had its English counterpart in the writ, an order under the king's seal, which became the fulcrum of royal justice. The historians of Germanic law have approached the peace theory with a neat conceptual apparatus. 20 The existence 'of a peacebreach formula in later Germanic and English law has led them to assume that every primitive German had a peace and that when he committed a wrong he lost his peace and was subjected to outlawry, so that he became " free as a wolf " and might be slain by any man until he had made his peace. Peacelessness thus becomes the counterpart of peace, which is the equivalent of law itself, and the primitive Germanic community emerges in the possession of a general folk peace, which in the course of time is transformed into the king's peace and the public peace. The peaces of house, church, moot, and the like are conceived of not as special peaces but simply as manifestations of higher peace - that is, as an accentuation of the peace which every primitive German already possessed. The later development of forfeitures and afflictive penalties less than capital are conceived of only as ameliorations of the aboriginal penalty of outlawry. If all these tenets are accepted, the primitive German appears as an incredibly law-abiding individual whose whole existence is dedicated to the preservation of the peace. But in fact of course feud was common, and was waged against the wrongdoer without formal steps to take his peace away or to declare him an outlaw. Outlawry was undoubtedly imposed on occasion as a punishment for the very serious offences that were unamenable or bootless, but there is nothing to show that the later afflictive punishments were merely mitigations of outlawry. There existed a" folk peace " possibly in the rather rudimentary sense that there were a few offences that would be punished by the community. That there was no general peace of the community, however, is evident from the fact that special peaces had to be invoked. The exaggerations of the Germanic historians have produced so

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great a reaction that the latest historian of the peace concept wishes to discard it altogether. 21 The extension of royal jurisdiction is explained by him in terms of minute procedural accretions, and the recognition of the special peaces surrounding moot, market, and church in terms of religious superstition. The reality of the peace concept is admitted only when the existence of a procedurally implemented peace-breach formula can be shown to exist. References in the sources to peace or the importance of the preservation of peace are dismissed as mere social facts. 22 Thus has the pendulum swung too far in the opposite direction. Peace may not have been the equivalent of law in the formal sense of the Germanic historians, but the preservation of peace has nevertheless been the primary concern of archaic societies. The primacy of the law of wrongs implies an emphasis upon the maintenance of peace. Unless a common denominator is found for the multifarious special peaces of archaic law, it is difficult to explain how a general peace-breach formula did appear in later Germanic and English law. To admit the reality of the peace idea only when there can be pleaded a peace-breach formula is to write legal history in purely technical terms. Even if the king's peace may not technically have been the point of departure for all of the king's law, it undoubtedly justified all of its manifestations. Since the forms of the king's protection came to be related, they must have rested upon some conception common to all of them, which could have been only the peace concept itself. The special peaces add up to the general peace. The general peace is indeed implicit in the special peaces. When the special place protected by the king's presence has been conceived as the whole realm, the king's peace has become the basis of public justice.

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" I w AS never ruined but twice - once when I won a law suit, and once when I lost one." -VOLTAIBE

CHAPTER VIII

THE STRUGGLE FOR THE JUDICIAL DUEL acquaintance with archaic law soon brings the realization that it presents a series of historical problems rather than established facts. Much that passes as the history of archaic law is hardly more than a conglomeration of misunderstandings, libels, and myths. One of the chief misunderstandings is implicit in ,the exaggeration of procedure as an explanation of the extension of the king's peace. It is commonly believed that procedure is of overshadowing importance in archaic law, that this procedure, moreover, is of a highly formalistic and hence of a functionless and irrational character. This view antedates even the writings of Sir Henry Maine, but it was he who with his usual felicity put it into its happiest form when he said that " ancient law has retained as its fundamental characteristic a love of technicalities and formalism. In the mind of early man a rule of procedure predominates in importance over a rule of substance; so that substantive law has at first the look of being gradually secreted in the interstices of procedure." 1 Maine employed the rather equivocal expression " ancient law " but legal historians since his day have applied the reigning dogma not only to archaic but even to primitive law. The truth, however, is almost precisely the opposite. The basic materials of archaic law were in existence even before the appearance of courts, and in the nature of things no procedure can grow until at least many substantive rights are recognized. 2 These are not gradually secreted in the interstices of procedure, although it is true that rights may be compromised or even destroyed by modifying or abolishing the available legal remedies. However, this manipulation of procedure occurs only in an advanced phase of legal development, for it implies a degree of sophistication that is not to be found in archaic societies. 3 These, as we shall see, have not yet produced professional jurists and lawyers, the chief architects of the most imposing systems of procedure in the history of jurisprudence. Indeed, the " love of technicalities and formalism " Y

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is directly proportionate to the degree of maturity of a particular legal system. It is only at long last in modern law that some relief has been obtained from the almost incredible artfulness that marked the procedures of past centuries. Thus it is true to say that in this sense modern law is returning to more primitive conceptions. Archaic procedure has its formalisms, but they are as nothing compared to those of the first phases of the maturity of law. It is easy enough to understand why legal historians have allowed themselves to be deceived so readily about the true nature of early procedure. In all societies procedure is of great importance, since a right without a remedy is valueless, and in seeking to enforce a right litigants have to pay more attention to procedure than to abstract right. At least subconsciously, legal historians defame early law in order to escape the odium that attaches to the procedural complexities of their own law. Partly, too, their readiness to see " formalism " in archaic law only reflects their lack of understanding and their inability to penetrate the procedural postulates of archaic law. It is almost inevitable to believe that methods of procedure that are profoundly different from any of those which obtain in the modern world are hopelessly bizarre and entirely senseless. But however wrong the attitude of legal historians towards early procedure, the preoccupation of legal historians with the procedural problem is nevertheless highly significant, for it is bound up with an instinctive recognition of the basic postulate of every legal system. This is a litigious equation of two contending juristic persons before a court. It is a judicial duel, fought with words rather than weapons, and it is a substitute for the blood-feud as well as a transmutation of it. In the competition of life there has occurred a breach, which, after bargaining between those concerned, cannot be adjusted. It is now taken to the judicial arena, called a court, which affords the parties the opportunity of continuing the bargaining under its own auspices, and by a method with which they have been familiar in arranging compositions that is, an argument in words. But as competition becomes increasingly organized in the market, the court itself, which in its origin was intimately connected with the exploitation of the economic means, becomes only another phase of the market. Just as it takes two to make a bargain, in the judicial market called a court it takes two to make a lawsuit, and bilaterality of hearing is the first and universal principle of legal procedure. Society has added only one element to the bargaining process, which would other-

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wise have run its course to the point of mutual consent - that is, an umpire, called a judge. Since he is an umpire in what is only an unfortunately interrupted process of bargaining, it is for the parties themselves to present and prove their cases. This is a particularly natural attitude, moreover, when the court is still something of a novelty. Thus party presentation and party prosecution have appeared as the second great twin principles of civil procedure. Orality and publicity of hearing represent a third set of principles, for the judicial duel, which is a combat of words, proceeds best when directly conducted by the parties themselves in the presence of the court and the community. 4 The petty details and forms of procedure are almost infinite in their variety, but the basic tendencies are everywhere uniform in analogous phases of development. All developed systems of procedure are concerned first with the problem of summoning the defendant before the court, second with preliminaries designed to prepare the case for trial, third with the trial itself, at which the allegations of the parties will have to be submitted to proof, and finally with the execution of the judgment of the court if the plaintiff is successful. The maturing of procedure is evidenced by a growing formalism in all these steps, invented first by the court officials, or by the priests, who are great masters of ceremonial, and then by professional lawyers, whose most baneful tendencies were to multiply the rules of the judicial duel. They proceeded to invent different rules for pleading various types of claims and defences, in set sequences; to segment causes so that there would be rigid stages at each of which various procedural steps had to be taken on pain of preclusion; to increase constantly the formalities of proof; but above all to substitute the written document for the spoken word so that the original orality ,of proceeding was submerged if not entirely eliminated. Thus assailed, the litigants became less and less important in the presentation of their cases and gladly yielded to an increasing degree of control and supervision of procedural steps by the courts themselves and paid champions, the professional lawyers. By these means the litigious equation, while never completely obliterated, has been seriously undermined, and the history of procedure has become the history oE a struggle to rediscover and re-establish the judicial duel in its pristine simplicity and purity. It is true that the judicial duel was " formal '' in one sense from the very beginning, in that the court did not investigate of its own motion but proceeded on the basis of the parties' revelations, and thus a judgment never affirmed objec-

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tive truth. But in this sense the judicial duel is still fundamentally formal in modern law. The procedure of a really primitive tribe is hardly more than a powwow, or talk fest. The trial is usually before the chief and his councillors or the elders, who, like all primitive judges, sit in the open. The defendant, who has been summoned by the court, takes his place on one side of the elders, together with his witnesses and friends, while the plaintiff and his supporters stand on the other side of them. Each party is heard and his witnesses cross-examined freely. The parties and their witnesses are not sworn before they testify as they are in modern courts, which have inherited this procedural invention from the priests. Among some more advanced tribes, such as the Africans on the Gold Coast, the witness may be questioned by a special official called a " linguist," who, however, may be also simply one of the councillors. Obviously the purpose of this procedure is to ensure proper order and decorum and can hardly be regarded as a taint of technicality. Since there is no elaborate and rigid procedure, the defendant is not in a position to delay or defeat the suit by taking advantage of procedural mis-steps. Indeed, primitive peoples seem to assume that no one would go through the tribulation of a public trial before his fellow villagers, kinsmen, and friends unless he had very strong reason to suppose that he had been injured. Hence, unlike in modern law, the defendant is presumed very sensibly to be guilty until he has been proved innocent. This presumption prevails generally also among archaic peoples, and accounts in part for the harshness towards defendants that is so characteristic of archaic law, which as a rule imposes even the burden of proof upon the hapless defendant. The primitive feeling that the plaintiff is more likely to be right is strengthened all the more when in more highly developed archaic communities technicalities of procedure begin to appear and popular distrust of the court grows. Surely now a plaintiff who embarks upon the perils of litigation must have some very good reason indeed. Among primitive peoples judgment is rendered at the close of the trial, which usually does not last long. A court fee is payable after judgment has been given and execution is then levied on the property of the debtor; but among more advanced tribes the debtor may also be imprisoned. However, such is the force of public opinion in primitive communities that execution is rarely necessary against a defendant who is able to satisfy a judgment. It is only among the larger communities, as the force of public opinion weak-

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ens, that the practice arises for the court to demand security before taking jurisdiction. Quite early there becomes manifest also a reluctance on the part of the court to give judgment by default - that is, on the rare occasions when the defendant fails to appear in answer to the summons. It may be surmised that this reluctance was based upon the fundamental premise of the judicial duel, which requires at least two contending parties. In the absence of the defendant a true judicial duel is impossible. However, practical considerations contributed to the force of this ideological preconception. The refusal to give judgment by default is regarded as one of the "irrational" weaknesses of early law, but every modern lawyer knows that a judgment by default is rarely any good, for when the defendant fails to appear it usually means that he has no property or has made himself judgment-proof. As a matter of fact, archaic law was all the more effective because it refused to give judgment .by default. It must not be supposed that the recalcitrant defendant escaped, for enormous pressure was put upon him to compel him to appear: he was subjected to either outlawry or the confiscation of his property or both. The conception of a lawsuit as a judicial duel was also no doubt partly responsible for another of the blessings of archaic law that seem to us a procedural defect. Since it is really absurd for a judicial duel to be fought over again by the same contestants, no appeals from a judgment were permitted, and a judgment once rendered was final, except that in the later phases of archaic law there developed methods of challenging or impeaching a judgment before the same court that had rendered it; but this impeachment was limited to formal grounds and was never on the merits. These features of procedure persisted in most instances for so long that they certainly cannot be regarded as exclusively or typically archaic. The demand for a forfeit before accepting jurisdiction is found in early Roman and Germanic law, but the idea was rapidly undermined. On the other hand, the classical Roman law, which was very mature, persisted in refusing to give judgment by default; in Germany a defendant could be coerced to appear down to 1654, and in England a defendant who failed to appear was stripped of his substance down to the eighteenth century. In Athens true appeals were not possible until the time of Solon, and in Rome not until the period of the Empire. The allowance of appeals in the Germanic states of the later Middle Ages was probably due to the influence of the late Roman law and the extraordinary hierarchical organization of medi~val feudalism.

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One of the chief reasons for regarding archaic procedure as absurdly formalistic is the belief that primitive men did not have the intellectual resources to permit the judge to evaluate evidence, 5 but employed irrational modes of proof, which are said to be the oath and the ordeal. These modes of proof did undoubtedly undermine the very foundations of the judicial duel, since they seriously compromised the litigious equation, but their prevalence among archaic peoples, as well as their irrationality, has been grossly exaggerated. Among advanced primitive tribes, as well as among the ancient peoples, not only were witnesses unsworn, but ordinarily issues of fact were decided simply on the basis of their testimony. In the nature of things, however, there were bound to be cases in which no satisfactory proof was obtainable. In modern law the poor judge, in the role of supreme solver of factual enigmas, is left to guess as best he may, or the riddle is submitted to a jury. Archaic law, on the other hand, proceeded to routinize this type of case by simply allowing the defendant to take an exculpatory or decisory oath - that is, to swear himself clear of the claim. The most common type of case in which such an oath was allowed in the archaic codes arose in connection with the theft of bailed animals or goods. When a herdsman who had been entrusted with a sheep by its owner said that it had been carried off by a wild beast, there was no evidence but his own. Instead of merely accepting his word, the archaic court made him take an oath of purgation. 6 Certainly reliance upon an oath in such circumstances is not irrational, especially in societies in which, because of the ascendancy of religion, the perils of a false oath seem real. Various decisory oalhs were known in Athenian procedure, and the Roman law even in its classical period allowed the plaintiff at his option in certain cases to challenge the defendant to take an exculpatory oath.7 Despite the sanctity attaching to an oath in archaic societies, however, it must have often been felt that the mere taking of an oath was too easy a way out for the defendant. In the case of the taking of a false oath, the anger of the deity might not manifest itself immediately. A more immediate and more dramatic test was apparently deemed desirable in certain grievous cases. Thus appeared the ordeal in all its protean forms - by fire, by water, by the magic potion. Undoubtedly another advantage of the ordeal was that it could be not only a form of proof but an automatic means of punishment, for the guilty person might not survive the test. The ordeal, however, like the oath, was not a normal form of

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proof in archaic sooeues. It was employed originally in cases where there was no available proof, and hence was most common in cases of witchcraft and adultery, the one an imaginary and the other a secret type of offence. Moreover, the ordeal was never uni·· versal; it was entirely unknown in ancient America; and its classic habitat is Africa, the continent of the most advanced primitive tribes. 8 There are no historical traces of the ordeal in either China or Japart, Greece or Rome. But in Greek law there are some survivals of another form of proof, by oath-helpers,9 which is found among only a few primitive tribes, probably as a result of white influence, as among the Berbers and Bedouins of Africa, but which became extremely widespread among the Germanic races of medi~val Europe. This form of proof is known generally as "compurgation," although in England it has been called "wager of law." Compurgation was simply a later development of the oath of purgation, ·by which the defendant was allowed to swear off a charge if he could secure a sufficient number of co-swearers, usually called "oath-helpers" or "compurgators." They did not swear, as is often wrongly supposed, that they believed the defendant to be innocent but rather that his oath was " clean." The number of oath-helpers who had to be found by the defendant was usually twelve in the Middle Ages, although in a case of murder as many as seventy-two were sometimes required. It must be apparent from the mere number of oath-helpers required that compurgation was not so absurd as it may seem, for only a man of good repute and standing in the community could find them, even though at first they appear to have been only relatives. Moreover, compurgation was generally in use primarily in criminal cases; its use in civil cases was rapidly restricted in both Germany and England.10 Far from showing an undue confidence in the oath, compurgation was actually based upon a mistrust of the single and unsupported oath. The use of oath-helpers thus actually represented a step towards more rational proof. They gradually faded into either jurors or witnesses who spoke of their own knowledge. As is well known, another common mode of proof in medi~val Europe was trial by battle, a form of the ordeal in which God was called upon to manifest the truth by aiding the righteous plaintiff to overcome the guilty defendant or his champion in a juridically supervised contest of arms. But, far from being a typically archaic mode of trial, this was a phenomenon entirely confined to medi.cval Europe. It is unknown as a form of proof among primitive

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peoples, and as far as historians have been able to discover, it did not obtain among any of the peoples of the Orient or in Greece and Rome. In medi~val Europe it represented a recrudescence of the blood-feud thinly disguised as a formal mode of proof. As such it constituted the very antithesis of the judicial duel, whose whole purpose as a human institution was to suppress the appeal to arms in any form as a method of determining disputes, and to substitute for it a clash of words. The prevalence of trial by battle in medi~val Europe reflected no "love of formalism," but the political chaos of feudalism. 12 The weakness of executive authority encouraged a method of proof ideally suited to the protection of the dominant martial class. Trained to arms, the rebellious knights could rape, rob, and slaughter with impunity, secure in the knowledge that they had to face nothing worse than a challenge to their skill. Indeed, like compurgation, and like the ordeal but in a greater degree, the institution of trial by battle, when properly understood, reveals its fundamental rationality in the scheme of medi::r:val society. "\Vhat a welcome relief it afforded to courts who were impotent to bring to bear against great magnates either the force of public opinion or effective political power! Contrary to common opinion, the decisive factor in the disappearance of the " archaic " modes of trial was not so much the competition of more rational means of proof as the growth in power of the modern state. Ordeals were doomed when the Fourth Lateran Council in 12 15 forbade the clergy to participate in them. Com purgation and trial by battle lingered longer. Indeed, in England they were not formally abolished by act of Parliament until 1833 and 1819 respectively, although both of course had been obsolete for many centuries.13 Indeed, political as· well as economic factors are generally the paramount influence in shaping procedure - even civil procedure, which the state could more readily afford to leave in large measure to the parties. Rules of procedure that seem fantastic may invariably be discovered to have some functional justification in political or economic considerations. They are rarely cultivated for their own sake. Sometimes procedural excrescences reflect the result of the diplomacy of the state, sometimes a reaction against the excessive assertion of its authority. Procedure moves, indeed, between the poles of state weakness and strength. The extensions of state power sometimes have to take a tortuous course. The judicial duel can be waged along simple and natural lines only in the primitive feudalisms in which kindred bonds have 11

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not been dissolved entirely. Elaborate and formalistic judicial procedure, like courts themselves, appear only in complex and populous communities as the result of either the establishment of relations of economic dependence, or the growth of an economy founded on trade or commerce. Thus are established the powerful states in which the population is suspicious of the state, the state is suspicious of its officials, and the inhabitants suspicious of one another. 15 Procedure is always rather the dubious gift of the town and city. Procedure comes to be the pride of the chieftain's rather than the popular court. Men put the accent on procedure when they go to law against strangers or become caught in the toils of chief or king. The rules of the judicial duel become ever more rigid and formal as their combative character is recognized. " Form," the German jurist Jhering has said, "is the sworn enemy of unlimited discretion and the twin sister of freedom." 16 We know precious little of the procedural formalities of truly archaic peoples such as the early Babylonians, Hebrews, Greeks, and Romans. While we do know something of the procedure of the early Romans and the Germanic tribes in the period of the decay of the Roman Empire, this law is already beginning to lose its archaic character. Certainly the Germanic law is open to suspicion of the influence of late Roman law. Yet, while we begin to encounter formalisms here, there are still survivals of an earlier procedural simplicity. The early Roman and Germanic law has the illusory appearance of a consent procedure and seems to depend entirely upon voluntary actions and co-operative steps taken by the parties themselves. In both there is no official summons, but it is the plaintiff himself who simply in the presence of witnesses orally summons the defendant. When the parties have appeared before the court, they themselves engage in the formalities of the procedure, which seems to simulate symbolically by word and gesture in one way or another a violent quarrel by force of arms in which the court intervenes to prevail upon the parties to settle their dispute by peaceful means. Both procedures seem to have a voluntaristic cast. Not only do they not allow for judgment by default, but in the Roman law the joinder of issue, called litis contestatio, was in form contractual, and in the Germanic law the parties before the taking of testimony actually had to make a contract to fulfil the judgment. Moreover, if the plaintiff was successful, it was left to him to execute the court's judgment by his own efforts. Legal historians have pretended to see in these procedures sur14

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vivals of the practices of arbitration and self-help that are universally supposed to have preceded organized justice. But while forms of arbitration are known among primitive peoples and selfhelp played a part in the days of the blood-feud, there is no more reason to suppose that these procedures had any direct connection with the later development than to suppose that official courts developed out of private arbitration. The ceremonials of pleading, which were a mimicry of an interrupted blood-feud, could have been invented by priests, officials, or lawyers to express simply what they thought to be the origin of justice. 17 The seeming domination of the proceedings by the plaintiff is more apparent than real, for if he made a mis-step in following the prescribed procedure he would lose his suit. The voluntary co-operation of the defendant is equally deceptive, for if he refused to participate in necessary procedural steps he subjected himself to harsh penalties or the unrestrained force of the plaintiff. Early procedure was really as harsh as early substantive law, and it was only another phase of its duplicities. The illusion of consent was after all a small concession which the state could well afford to make to litigants in the interest of rendering its justice more palatable. The growth of procedural formalism has always been particularly marked in the field of pleading- in the realm of the litigants' allegations and counter-allegations - and in the rules governing the succession of steps that must be taken by them before they come to actual grips in the trial itself. The judicial duel is postponed to a more and more distant time by a progressive segmentation of the proceedings almost as if to discourage the folly of resort to courts, and more and more complex rules govern the manner in which the judicial duel must be waged. The tortuous course of early procedure is reflected particularly in the invention of special forms of action, which come eventually to.be written down in books of formulas by either the priests or the lawyers. General principles of legal liability are too dangerous; the unlimited discretion of the judge is even worse; an action can be brought only if it can be fitted into some mould hallowed by judicial tradition. These forms of action in the earliest Roman procedure were called legis actiones because each action was said to be based upon a statute, or lex, but there must have been legis actiones based also upon custom, which were assimilated to one of the statutory forms. Of five kinds of legis actiones mentioned by the Roman jurist Caius, manus iniectio (seizure of person) and pignoris capio (seizure of pledge) were really state-supervised methods of execu-

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tion available in certain cases probably as survivals of former rights of self-help. Thus the term legis actio must have signified something roughly equivalent to " procedure." For a long time the knowledge of procedural forms remained a jealously guarded secret of the Roman pontiffs, who thus were enabled to maintain something like a monopoly over the administration of justice. The most general of the Roman forms of action was the legis actio sacramenti, which bas been romanticized by Maine as the "undoubted parent of all the Roman actions, and consequently of most of the civil remedies now in use in the world." 18 The guess bas been ventured that this sacramentum or action by oath had the same origin as the action by oath of the paramount chief on the Gold Coast, and that it had its origin in the court of the chief of the Roman confederacy whose jurisdiction was thus invoked. 19 At first the parties must have taken an oath to the justice of their claims, but in the known Roman practice the sacramentum was a sum deposited in court as a forfeit if the suit should be lost. When we get to know the sacramentum, it has developed a ceremonial customarily described as highly formalistic, but in a legal procedure that was oral it was not unnatural that the statement of a claim should come to be symbolically expressed. If the plaintiff were seeking to recover possession of a slave, for instance, he placed a hand on him, alleged that he was his property, and at the same time touched him with a wand. After the defendant made the same claim in the same form the pr;:etor intervened to settle the dispute, whereupon the wager on the outcome of the suit was made. If the suit was brought to enforce an obligation, however, the procedure was far less dramatic in form. The formalism lies here less in the forms themselves than in the fact that they have become fixed so that any departure from their requirements may result in the loss of the suit. The apostles of primitive formalism never tire of repeating the quaint story of the Roman litigant who lost his case because in seeking to recover damages for injury to his vines he did not call them "trees" as required when bringing the legis actio de arboribus--succisis. But it must be apparent from the mere fact that the original action for cutting trees had been extended by a fiction to vines that the technicality was a later development. 20 The historically known Roman civil procedure, at least down to the close of classical times, was always divided into two rigidly delimited stages denominated in iure and apud iudicem. The statement of the formal claim was made before the pr;=etor, who

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as magistrate determined whether the action lay. This phase of the proceeding in iure was closed by the joinder of issue by the parties, or litis contestatio, and an agreement for the appointment of a iudex, a Roman citizen who acted as a lay jury of one to hear the e,·idence and decide the case. The iudex was selected by the parties from a list on which appeared only men of wealth and position. The litis contestatio was conceived of as " consuming" the original cause of action. Thus any defect in the procedure in one stage could not be cured in the second. Some kind of preliminary hearing appears, however, in almost every form of developed procedure; Roman bifurcation of procedure was simply more rigid. In the last two centuries of the Republic the legis actio procedure was superseded by a "formulary" procedure. The chief difference between the two procedures was that, while in the former actions had to be fitted to unalterable forms, in the latter a flexible formula adapted to the needs of the particular case could be allowed by the pr.rtor, who thus ceased to be an automaton and assumed directive powers over the litigation. The formula was a written instruction governing the proceedings before the iudex, who, except for this change, functioned as before. There was, however, a check upon the pr.:etor in the requirement that he publish in his annual edict the formulas he would allow. Thus the forms of action were liberalized, but they did not disappear: the prcetor's edict became a sort of book of formulas. The verbal symbolisms and gestures of the older procedure, however, ceased to be a source of procedural peril. The similarities between the early Roman and Germanic procedures have already been mentioned. The ancient German, too, grasped the thing claimed and had to speak in prescribed terms. If the ancient Roman had to call vines "trees," the ancient German had to refer to a bull as " the leader of the herd." The defendant had to answer him word for word. The feature of the Germanic procedure that has attracted the most attention is its "proof-judgment." The function of a judgment in the modern conception is to decide the controversy, but the Germanic proofjudgment merely set forth who would have to make proof and by what means. But this " curious formalism " was dictated by the necessity o( selecting the mode of proof - whether by community witnesses, oath, or ordeal. When the proof was made, judgment followed inevitably, and thus the proof-judgment was really a conditional judgment. The Germanic procedure was marked by three stages rather than two, and the proof-judgment served to

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separate its two most important stages. It is significant that its formalism became more marked in its later media::val period. Whil~ it is impossible to go into all the subtleties of the mature procedures, the most rapid survey must make it apparent that they show merely another kind of formalism. The art of pleading and the cultivation of rules of evidence become all-engrossing passions, for mature systems of procedure are dominated by professional lawyers who have a direct interest in making a mystery of their craft. The formalisms of archaic procedure, which is entirely managed by laymen (unless priests have interfered) are simple and nai've in comparison with those that are the progeny of the lawyer's brain. While priests rather than lawyers may have been first responsible for the use of written pleadings and written evidence, the lawyers early perceived the profit that would accrue to them from the suppression of orality in favour of documentation, and the substitution of the lawyer.as the paid champion to take the necessary procedural steps in writing. The use of writing in procedure has been the last great threat against the essentials of the judicial duel. Writing has encouraged not only excessive pleadings but endless peremptory and dilatory pleas. The tendency has also been to undermine not only orality but publicity of proceeding and to give an increasing amount of directive power to courts even in civil litigation. Only too often cases were lost on questions of pleading, and the parties thus never even came face to face with each other in the judicial duel. The Athenian procedure of the age of Solon is certainly no longer archaic. It exhibits a greater degree of maturity than one would expect, but perhaps its precocity in this respect was at least partly due to its popular character. The litigious Athenians, the sycophants, the speech-writers, the trials before the huge dicasteries, or juries of citizens, that contrast so strangely with the single Roman iudex, are all familiar to those who have still had the benefit of a classical education. Like the Roman procedure the Athenian exhibits a division of functie>n between a magistrate and the populace, 21 and a preliminary hearing before the magistrate called anakrisis. The Athenian procedure requires a written complaint and answer, and permits special pleas and objections in point of law called paragraphe and diamarturia; evidence is reduced to writing, and a written record is assembled; there are many rules of evidence, although the decisory oath is still in use; judgment is even given by default, but the plaintiff must still take steps to execute a judgment.

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The Roman fonnulary procedure remained the procedure of the classical Roman law, but in the Imperial period it was gradually displaced by an extraordinary procedure, the cognitio extraordinaria, in which the old bifurcation of the procedure disappeared and the judge, now conceived to be a delegate of an absolute emperor with plenary administrative powers, had full control of the procedure from beginning to end. Summons now had to be authorized by the court, and judgment could be had by default. In the time of Justinian the plaintiff served a libellus upon the defendant which was equivalent to both a statement of claim and a writ, and the defendant might reply by a libellus which did not need to contain more than an admission or denial of the claim. The libellus gave its name to the procedure, which has been called the "libellary procedure." But the very flexibility of this procedure brought attendant evils. Dilatory exceptions had to be pleaded before joinder of issue, but peremptory exceptions could be pleaded at any_ time. The existence of preclusive stages in procedure has at least the merit of eliminating certain pleas if not taken in time. Moreover, the judge was now made less free in the evaluation of evidence, being bound by many rules of presumption, credibility, and weight; perhaps borrowed from the Scriptures, the rule was established, for instance, that the testimony of a singie witness could be allowed no weight at all. Finally the Imperial Roman procedure for the first time in the history of Roman law permitted taking of appeals. The system that has had the greatest influence on the legal procedures of the modern world is called the "Romano-canonical," which was itself a further development of the Roman libellary procedure in the courts of the church and the cities of medi~val Italy. There probably never has been a system of procedure that depended so much upon writing and discouraged to such an extent orality of proceeding; evidence was not taken in open court, but by means of written depositions obtained by secret examination. Marvellously articulated indeed was this Romano-canonical procedure, and stately in its progression. The two stages of the classical Roman procedure were as nothing compared to the dozen or more termini of the Romano-canonical procedure. ·while it began with a written libel, and permitted affirmative defences and dilatory exceptions in the greatest number, its most striking feature was its method of proceeding after pleading by" positions," a series of propositions set forth by the plaintiff breaking down the elements of fact constituting his cause of action. And there

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were no less than twenty-three objections in point of law that could be taken to a "position," which, ironically, was intended to do away largely with the necessity for proof. Moreover, this system of proof carried to such extremes of scholastic absurdity the Scriptural and late Roman rule against accepting the testimony of a single witness 22 that it has well been called a system of " mathematical" proof. The judge like an accountant had to add up the testimony of various witnesses who counted only as " halfproof " in order to make " full proof." The chief European states copied, with certain variations introduced for the sake of greater simplicity, the basic Romanocanonical principles. In the French procedure there is manifest a struggle to graft the principle of orality upon the Romanocanonical stock. The result has been called " a written procedure superimposed upon an oral procedure, the one serving to fix and reproduce the other." The procedure of the Imperial Chamber of Justice, established in Germany in 1495, has been called the" camera!" procedure, and it, too, was basically Romano-canonical. The camera! procedure was in turn the foundation of the gemeiner Prozess, or so-called "common law " procedure of the German states. One of its outstanding peculiarities was a consequence of its attempt to graft the idea at the basis of the Germanic proofjudgment upon Romano-canonical principles. The procedure of the English common law was in its early days oral and flexible, but by the sixteenth century it had become a highly formal and complex written system of pleading. 23 While it developed along more independent lines than procedure on the Continent, it superimposed some of the Romano-canonical principles upon a legal system that was still based upon special forms of action, like the Roman system in the period of the formulary procedure. The royal writs in England served somewhat the same purpose as the pra:tor's formulas except that they soon came to be less flexible. The whole striving of the common-law system of pleading was to produce a singleness of issue, whether of law or fact. This basic tenet of the system has been ascribed to the circumstance that in the common law issues of fact came to be tried before a popular jury of twelve neighbours, but it may have had even earlier roots in the Germanic oath-formula resulting from the responsive allegations of the parties. In any event, the common-law system of" issue pleading," as it has been aptly called, was bound to become very difficult in a system that allowed special pleas but had not yet rid itself of the diverse technicalities of forms

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of action. A responsive allegation had to be either by way of " traverse " - that is, denial - or by way of confession and avoidance, but both had to be single: the traverse had to be a denial of a single allegation of fact, and the plea in confession and avoidance could oppose but one answer to the adversary's allegation. But the trouble was that in certain forms of action the defendant was permitted to interpose a compendious form of denial known as " the general issue." The great riddle of common-law pleading was to determine when it would suffice to plead the general issue rather than an affirmative defence, and a defendant who had several equally valid defences was greatly embarrassed by the requirement of singleness of issue. Objections to the sufficiency of a pleading could be taken by a "demurrer," the common-law form of a written objection in point of law, and defendants frequently lost on demurrer for pleading specially, or lost at the trial when they attempted to prove an affirmative defence under the general issue. The written pleadings themselves might be very numerous. The plaintiff's "declaration " was, of course, followed by the defendant's "plea," but the plea might be followed by a "replication," the replication by a "rejoinder," the rejoinder by a "rebutter," and the rebutter by a " surrebutter." So sober an authority as the Encyclof;cedia Britannica referred to commonlaw pleading as a " mischievous mess which exists in defiance and mockery of reason." 24 In the United States, which with certain variations followed the system of common-law pleading, a reformed system of pleading introduced in the revolutionary year 1848 has been adopted in most American jurisdictions. It was inten·l:. may be supplemented by his Congress, the Constitution and the Supreme Court (new ed., 1935). Good foils to Warren are Louis B. Boudin: Government by Judiciary, 2 vols. (1932), and C. G. Haines: The American Doctrine of Judicial Supremacy (new ed., 1932). Appendix II of this work has extensive references to constitutionalism in partibus infidelibus. A good book on a basic concept in American constitutional law is R. L. Mott: Due Process of Law. Essential to an understanding of the functioning of the Supreme Court is Felix Frankfurter: The Business of the Supreme Court (1927). Most of the outstanding articles in the law reviews have fortunately been collected in a huge single volume: Selected Essays on Constitutional Law, published under the auspices of the Association of American Law Schools (1938). In any small constitutional library should be included the three volumes collecting the opinions of Justices Holmes and Brandeis: The Dissenting Opinions of Mr. justice Holmes (1929), Representative Opinions of Mr. Justice Holmes (1931), and the Social and Economic Views of Mr. Jmtice Brandeis (1930), all edited by Alfred Lief, and Ambrose Doskow's collection: Historic Opinions of the United States Supreme Court (1935). The New Deal constitutional crisis produced a considerable number of books, which are cited here since they arc not referred to in the older standard works: Henry A. Wallace: Whose Constitution? (1936); Irving Brant: Storm over the Conslitution (1936); Morris L. Ernst: The Ultimate Power (1937); Dean Alfange: The Supreme Coui·t and the National Will (1937). In this category belong also the three scholarly books by E. S. Corwin: The Twilight of the Supreme Court (1934); The Commerce Power versus States Rights (1936) ; and Court over Constitution (1938). The two most useful technical treatises on constitutional law are W. W. Willoughby: The Constitutional Law of the United States, 3 vols. (1929), and H. Rottschacfer: Handbook of American Constitutional Law ( 1939).

CHAPTER XX The pioneering American works are F. J. Goodnow: Comparative Administrative Law, 2 vols. (1893); Principles of Administrative Law (1905). The Growth of American Administrative Law by various authors (1923) marked the growing interest in administrative law in America. The most important works since then have been John Dickinson: Administrative Justice and the Supremacy of Law in the United States (1927); Ernst Freund: Administrative Powers over Persons and Property (1928); W. W. Willoughby: Principles of Public Administration (1927); J. M. Landis: The Administrative Process (1938); Fred Blachly and M. E. Oatman: Administrative Legislation and Adjudication (1934) and Federal Regulatory Action and Control (1940). On various Federal administrative agencies, there are G. C. Henderson: The Federal Trade Commission (1924) ; I. L. Sharfman: The Interstate Commerce Commission, 4 vols. in 5 (1931-7); T. C. Blaisdell: The Federal Trade Commission (1932); Joseph Rosenfarb: The National Labor Policy and How It Works (1940), and forty-four mimeographed volumes published by the U.S. Attorney General's Committee on Administrative Procedure (193g) . Three standard English works are \V. A. Robson: Justice and Administrative Law (1928); C. T. Can: Delegated Legislation (1933); F. J. Port: Administrative

Bibliographies

438

Law (1929). See also H. Finer: The Theory and Practice of Modern Government (rev. ed., 1934), Part VI, Ch. vii. The controversial English literature is Lord Hewart of Bury: The New Despotism (1929), and C. K. Allen: Bureaucracy Triumphant (1931). The classic treatises on French droit administratif are E. Laferriere: Traite de la jurisdiction administratif et des recours contentieux (2nd ed., 1896); M. Hauriou: Precis de droit administratif (11th ed., 1927); G. Jeze: Les Principes generaux du droits administratif franrais (3rd ed., 1925) , which is also available in a German edition; and H. Berthelemy: Traite elementaire de droit administratif (10th ed., 1930); Leon Duguit: Traite de droit constitutionnel, 5 vols. (2nd ed., 1925) should also be consulted. The most important works on the German system of administrative law before the advent of National Socialism are Otto Mayer: Deutsches Verwaltungsrecht, 2 vols. (3rd ed., 1924); Walter Jellinek: Verwaltungsrecht (2nd ed., 1928); Fritz Fleiner: Institutionen des deutschen Verwaltungsrecht (8th ed., 1928). On the German system, see also F. F. Blachly and M. E. Oatman: The Government and Administration of Germany (1928).

CHAPTER XXI On the "international law" of primiti.ve peoples, see M. R. Davie: The Evolution of War (1929), Ch. xiv, and bibliography there cited; also E. S. Hartland: Primitive Law (1924), Ch. v. Of the literature on the international practices of the ancient world, see S. V. Viswanatha: International Law in Ancient India (1925); Siu Tchoan-Pao: Le Droit des gens et la Chine antique (1926); Coleman Phillipson: The International Law and Custom of Ancient Greece and Rome, 2 vols. (1911). Of the general histories of international law, the old works of R. P. Ward (1795) and Henry Wheaton (1845) are still useful. The more modern works are those of F. Laurent: Histoire du droit des gens et des relations internationales, 18 vols. (1861-70); T. A. Walker: History of the Law of Nations (1899); R. Redslob: Histoire des grands principes du droit des gens (1923); 0. Nippold: Le Developpemenl historique du d,oit international depuis le Congres de Vienne ( 1925). Specially recommended is Geoffrey Butler and Simon Maccoby: The Development of International Law (1928). Of the general textbooks on international law in English the standard works are J. L. Brierly: Law of Nations (imd ed., 1936); C. G. Fenwick: International Law (2nd ed., 1934); W. E. Hall: Treatise on International Law (8th ed., 1924); A. S. Hershey: The Essentials of International Public Law and Organization (rev. ed., 1935), which is particularly good for its extensive bibliographies; C. C. Hyde: International Law Chiefl.y as Interpreted by the United States, 2 vols. (1922); T. J. Lawrence: Principles of International Law (7th ed., 1923); L. Oppenheim: International Law (5th ed., by H. Lauterpacht, 2 vols. 1935-7); E. S. Stowell: International Law (1931); J. Westlake: International Law (2nd ed., 2 vols. 1910--1913); Henry Wheaton: Elements of International Law, edited in Classics of International Law, by J. B. Scott ( 1936); G. G. Wilson: Handbook of International Law (3rd ed., 1939). Of the Continental treatises the monumental work of Paul Fauchille: Traite de droit international public, 4 vols. (1921-6), deserves special mention. Two recent collections of documents and cases, the second of which also contains references to earlier works of a similar nature, are by H. W. Briggs (1938) and L

Bibliographies

439

Pfankuchen (1940). The treatises on international law in themselves, however, are inadequate for an understanding of its growth. They must be supplemented by books on international relations. The most useful histories of international relations since the first World \Var are G. M. Gathorne-Hardy: A Short History of International Affairs, r920-r938 (1938); W. C. Langsam: The World since r9r4 (4th ed., 1940); F_ L. Schuman: Europe on the Eve (1939); R. Palme Dutt: World Politics, r9r8-36 (1936); J. H. Jackson: The Post War World (1935) - Of the general introductions to international relations see R. L. Buell: International Relations (2nd ed., 1929); F. L. Schuman: International Politics (2nd ed., 1937); W.R. Sharp and G. Kirk: Contemporary International Politics (1940).

INDEX Abduction, 41, 385 Absentee ownership, 55 Absolute liability, 29, 380 Absolute reign of law, 300-1 Absolutism, 16g-70, 225 Abuse of rights, 196, 294 Accursius, 167 Accusatory procedure, 236--7, 239, 244 Act of God, 29, 120 Act of Settlement, 218 Adams, Brooks, 408 Administrative law, 326-48; development of, 326-7; nature of, 327, 32g30; functions of administrative agencies, 327-g; history of, in France, England, and United States, 330-6; significance as a phenomenon, 336-41; and the supremacy of law, 341-8; and American Bar Association, 422 Administrative tribunals: English, 326-7; American, 326--7, 345; French, 331-3 Adoption, 47 Adultery, 8, 30, 37, 39, 40-1, 71, go, 229 .£quitas, 185 A::thelbehrt, laws of, 123, 124, 387 Agriculture, and growth of law, 53-4, 62, 68 Akamba, 37 Alaric II, King of Visigoths, 165 Alciati, Andrea, 170 Alcidamas, 199 Alexander Severus, 186 Alexander the Gr!,!at, 200 Alexander II, of Russia, 145 Alfonso X, King of Uon and Castile, 169 Alfred, laws of, 124, 126 Algonkian Indians, 54 Alienation of affections, g-10 Alienation of land, 54

Allen, Carleton Kemp, 342, 344, 376, 406, 420, 421 Allgemeine Landrecht, Das, see Prussian Civil Code American Civil War, 267 American Indians, go. See also Plains Indians American law, 17, 179-80, 194-5, 249 Amira, Karl von, 390 Amos, Sheldon, 4 Amphictyonic League, 367 Anakrisis, 96 Analytical school of law, 23-4, 25 Anatolius, 164 Ancestor-worship, 128, 3go Andamanese, 28, 52 Andrew II, of Hungary, 224 Angami Nagas, 44 Anglo-Saxon laws, 123, 124 Anthropologists: classical, 30; critical, 31, 428 Antiphon, 134 Anti-Trust acts, 195, 320 Antony, Mark, 137 Appeals, 18, 72, 88, 97, 100, 223, 235, 244,245,306,335,342,345 Aquinas, 201, 202 Arabs, 39 Arbitration, 60-1, 64, 93 Archaic law, xiv-xv, 66-g, 70-1, 84, 87-8, 2),2, 265, 270, 337-8 Areopagus, 234 Aristides, 105 Aristotle, 112-13, 182, 200, 370 Arnold, Matthew, 6 Arnold, Thurman, 375, 383-4 Arson, 234 Articles of Confederation, 302-3 Ashanti, 38, 71, 388 Assimilation of Western law, 177-80 Assize, 171 Assize of Clarendon, 171, 395 Assize of novel di.sseisin, 173, 177

[ i]

ii Assumpsit, 263-4 Assyrian laws, xii, 104, 109, 114, 120, 259,386 Attempt, 241, 248 Augustine, St., 202, 381 Augustus, 138, 139, 223 Austin, John, 23, 420 ·Australian tribes, 28, 37, 39, 61, 350, 35 2 Austrian Civil Code, 290 Authority, 20-1 Auto-limitation, doctrine of, 21-2 Ayala, Baltasar, 424 A:zo, 167 Aztecs, 49, 54 Babylonian law, xiii, 61, 69, 72, 102, 259,260 Bacon, Sir Francis, 214, 295 Baganda, 71 Bagchot, Walter, 382 Bail, 218 Bailment, 89, 183 Balance of power, 351,363 Ban, 76, 82, 172 Banks Islands, 48, 54 Bartolists, 167-8, 170 Bartolus of Sassoferato, 167--8 Baudouin, Frarn;:ois, 286 Beard, Charles A., 308,415 Beaumanoir, 168 Beccaria, 240 Beck, Christian August, 205 Bedouins, go Bentham, Jeremy, 16-17, 24, 50, 177, 196, 278, 280, 295,349,411 Berbers, go Bergdamma, 37 Bigot de Preameneu, F. J. J., 284 Bills of attainder, 221, 231, 241 Bills of pains and penalties, 221, 231, 2 35 Bills of Rights, 21, 218, 221, 302 Blackfoot Indians, 40 Blackstone, Sir William, 4, 176-7, 286, 295, 376, 387, 397, 400 Blood-feud, 28-g, 36-g, 43-4, 45, 47, 57, 5g,-6o, 64, 68-g, 7 1, 74, 77, 9 1, !08, 120, 133,171,233 Bluhme, Friedrich, 164

Index Bluntschli, J. K., 5 Boas, Franz, 384 Bodin, Jean, 359 Bolland, W. C., 397 Bonham's Case, 216, 305 Bonner, R. J., and Smith, G., 387 Bonorum possessio, 186, 193 Borchard, E. M., 386 Boudin, Louis, 404 Boutmy, Emile, 403 Bracton, Henry de, 168, 210,223,403 Branches of law, x-xi, 370 Brandeis, Justice L. D., 319,324, 418-19 Breviary of Alaric, 165 Bride price, 41 Brigandage, 49 Britton, 173 Brunner, Heinrich, 390, 393 Bryan Peace Treaties, 361 Bryce, James, 398, 4. 13,414,415 Buckingham, George Villiers, Duke of, 214 Buck.land, W.W., and McNair, A. D., 396, 4!0 Buckley, Justice Sir Henry Burton, 193 Bugnet, Jean Joseph, 286 Bulla Aurea, 224 Burgerliche Gesetzbuch, Das, see German Civil Code Burgess, John W., 414 Burghley, William Cecil, Lord, 213 Burke, Edmund, 377 Bynkershoek, Cornelius van, 366 Calamandrei, Pietro, 392 Caligula, 387 Callicles, 199 Cambaceres, J. J. R. de, 283-5 Canon law, xiv, 97, 129, 160, 166, 263 Capital punishment, 127-8, 238, 239, 39° Capitalism, 131, 139, 146--7, 148, 149, 155, 156, 180, 184, 204, 207, 253, 264,277,295,3 13 Capitularies, 75 Caracalla, 163 Cardozo, Justice Benjamin N., 391, 392,418

Index Carlyle, Thomas, 6, 21 Carpzov, Benedikt, 240 Cartels, 272, 293 Carter, J. C., 387 Case method, 159 Cassiodorus, 389 Causa, 262-4, 294 Caveat emptor, 183 Centralization, xiv, 65--6, 122, 166, 175--6, I 79, 278 Ceremonials, 34-5, 158--g, 258--g, 265, 270 Certainty, and law, 9, 18, 20, 226--7, 280, 371-2 Chamber of Accounts, 224 Chambres des Requets, 400 Chancellor, 186, 188 Charlemagne, 74 Charmont, Joseph, 377 Charondas, 105, 108, 109-10, 113 Chase, Judge Samuel, 416 Chattels, see Personal property Cherry, R. R., 406, 407 Cheyenne Indians, 38 Chief's peace, 43, 71, 382 Chieftainship, 28, 56, 62, 64 Chinese law, 90, 103, 256 Chukchi, 37, 53 Churchill, John, First Duke of Marlborough, 219 Cicero, 4, 103, 137 City law, xiv Civil law, xiv, 30-2, 57, 154, 159, 234, 236, 278 Civil liberties, 209, 2 18, 2 19-20, 226, 227, 250, 320 Classification of crimes, 242 Clay tablets, 25g-60 Cleisthenes, 235 Clovis, 105 Cocceji, Samuel von, 282 Code Civil, see French Civil Code Code d'Tnstruction Criminelle, 241 Code Napoleon, see French Civil Code Code of Hammurabi, 49, 72, 104, 106, 107, 108, 109, 110, 111-12, 114, 222, 258, 388 Code Penal, 241, 248 Code pleading, 99, 296

iii Codes, archaic, 102-17, ug-25, 280; unsystematic character, 103, 110; myths concerning, 105-6; and invention of writing, 106--8; incompleteness of, 109, 111; in nova ting character of, 107, 111-12; as collections of prior laws, 107; and preexisting custom, 107-10; as expressions oE social revolutions, 113; forgeries in, 115, 119, 124; language and form of, 108, 110-u; extent of diffusion, 115; influence of middle class, 112-13 Codes, as characteristic of civil-law system, 16--17, 159 Codes of civil procedure, 280, 291, 296 Codes of criminal procedure, 280, 285, 291, 296, 408 Codex Maximilianeus Bavaricus civilis, 281 Codex Theresianus, 290 Codification, 277--98; rationale of, 277-80; completeness as chief characteristic of modern codification, 280; early efforts, 280-3; movement for codification in Continental countries, 283--95; partial codification in England and United States, 295-7; significance,297-8 Cohen, Felix S., 375 Cohen, Herman, 391 Cohen, Morris R., 376, 378, 393, 398 Coke, Sir Edward, 173, 189, 210, 21317, 305 Colbert, J. B., 281 Collective responsibility, 36--8, 43-4 Collectivism, and law, xiv College of fetiales, 352 Commentaries, 16, 152, 157, 165, 171, 173,278,280,286,288,290,294,298 Commercial law, 172, 285, 291, 296, 297 Commodity, 266 Common law: as a term, 153-4; as a system, 171-7, 1_,6--8; and codifica. tion, 295-7; and perfection of reason, 209, 211, 215-16; and American constitutionalism, 304-5 Common Law Procedure Acts, 386

iv Communis opinio, 167 Communism, primitive, 2g-30, 5o--'7 Community-property system, 271 Comparative Jaw, xiii-xiv Complicity, 241 Composition, 29, 41-2, 44, 45, 49, 59, 68-9, 70-1, 108, 119, 120, 127, 171, 233, 244, 254-5 Compurgation, 90-1, 133, 166, 174, 384, 385 Conflict, and law, xv Conflict of laws, 161, 353 Congress of Paris, 360, 363 Congress of Vienna, 360, 361 Conkling, Roscoe, 416 Conquest, 62-4, 135, 388 Conrad II, of Holy Roman Empire, 224 Consensual contracts, 261 Consideration, 263-4 Consolidation Acts, 295-6 Constitution of the United States, 299, 302, 304, 306-7, 308, 310, 313; commerce clause, 311-12, !116, 31920; obligations-of-contracts clause, 311-12, 316; due-process clause, 313-14, 315-16; equal-protection clause, 313-14 Constitutional Convention, 307-8 Constitutionality, 314-17; of taxation of stock dividends, 315; of legaltender acts, 315; of restriction of hours of labour, 3 15, 316; of rent ~ laws, 315; of NRA, 315, 319-20; of minimum wage, 316, 323; of childlabour legislation, 316; of postal censorship, 316; of Federal crime control, 316; of Alien and Sedition Acts and Fugitive Slave Act, 318; of New Deal legislation, 319; of NLRB, 320; trend of decisions, 314-17 Constitutions, 21, 23, 225, 301, 302, 3o4, 3 13 Consuls, 353 Contempt of court, 181,317 Continental common law, 278, 281 Contract, xiv, 102, 129, 147, 152, 154, 162, 163, 175, 186, 191, 207, 287, 288, 293-4; as mechanism of legal

Index development, 252-3, 267; and growth of the market, 253, 257; movement from status to contract, 254; origins in composition, 2545, in marriage, 255, in promissory oath, 255, in economic exchange, 255-6, in pledge and suretyship, 257-8; requirements for enforcement, 258-9; in form of cuneiform tablets, 25g-60; influence of debt as a form, 260; absence of general theory of, 260, 262; media:val forms of, 262-3; causa and consideration, 263-5; as foundation of capitalism, 265-72; socialization of, 272-7; standardization of, 274-6; protection under U.S. Constitution, 31112, 316 Contributory negligence, 33g-40 Conveyance, 256,270 Cook, Walter Wheeler, 400 Cooley, Thomas McIntyre, 416 Coquille, Guy, 286 Corporations, 267-70, 272, 273, 2745, 2 77 Corpus Juris Civilis, 163-5, 169, 223, 280, 281 Corwin, E. S., 414,418 Council of State, in France, 331-3, 334 Court of Cassation, 332, 334 Court of Chancery, 187-90, 192, 210 Court of Claims, 336 Court of Common Pleas, 172 Court of Conflicts, 334 Court of King's Bench, 172-3 Court of Requests, 189-90 Court of the Delphinium, 234 Court of the Exchequer, 172 Court of the Palladium, 234 Court of the Phreatto, 234 Court of the Prytaneium, 234 Courts: absence of, xv, 28, 41-2, 43-7, 57; origin of, 5g-61, 64-6; as tests of existence of Jaw, 17-18; as factors ingrowthoflaw,30,69, 102, 130-1; distrust of, 85, 87, 92; among primitive peoples, 34; in ancient times, 66; of popular character, 64-6; of fief and clan, 72, 77; of king. So;

Index Greek heliastic, 184; Greek homicide, 234; Roman, 161-2; local, in England, 175-6; on circuit, 74, 82, 172; of the common law, 172-3, 210-13, 217-18, 338 Coutumes de Beauvoisis, 168 Covenant code, 103, 104, 110, 120, 121 Covenants under seal, 263, 264 Cratinus, 164 Credit barter, 57 Crime, primitive, 29, 32-3, 46 Crime, professional, 75, 246 Crime surveys, 434 Crimes against property, 234, 242 Crimes against the person, 234, 242 Criminal law: primitive, 30, 57; in Frankish Empire, 75; contrasted with civil law, 153, 234; public criminal law, 227-52: nature of, 227-8; contra~tcd with archaic, 228-30; and public prosecution, 230-1; influence of economic conditions upon development, 231-2, 237, 243, 250-1; beginnings of, in ancient world, 232-7; in media::val Europe, 237-8; in England, 238-g, 244-5; in continental Europe, 23g40; in Age of the Enlightenment, 240-4 Criminal prosecution, 225, 231, 233, 234-6, 240, 243-5 Criminology, 248--52 Criminosus, 75 Critical singing encounter, 40 Cromwell, Oliver, 219 Cronhjelm, Gustav, 281 Cujas, Jacques, 170, 286 Cuneiform tablets, 259-60 Custom: as an element of law, 10-11, 16-17, 19, 22-3; as basis of cohesion of primitive society, 27-35, 40; and codification, 102, 106-17 Custom of Kent, 11 Custom of the Constitution, 23 Customary law, 11, 24, 63, 69, 168, 222, 27g--So, 290 Custumal literature, 168 D'Aguesseau, Henri-Fram;ois, Chancellor, 142, 281, 286

V

Dahomey, 71, 72 Dalloz, 288 Damages, 42, 182, 183, 191, 229 Danske Lov, 281 Dartmouth College case, 269, 311 Debt, 19, 37, 68, 87, 101, 108, 113, 122, 191, 228, 256, 257, 260, 263, 265,308 Decalogue, 120 Declaration of the Rights of Man and the Citizen, 283, 403 Declaratory judgment, 101, 317 Decretum Gratiani, 124-5, 201 Deeds, 102, 132 Delegation of power, 329, 336 Delict, see Wrongs De Louter, Jan, 423 Demades, 406 Demosthenes, 4, 7, 390 Deodands, 126 Deuteronomic Code, 103, 120, 122, 385 Devolution, 329 Diamarturia, 96 Diamond, A. S., u7, 378, 383, 389, 409,410 Dicasteries, 135, 235 Dicey, Alfred Venn, 217,330,333,335, 34 1-2, 343, 344, 347,420,421,422 Dickens's Bleak House, 192 Dickinson, John, 343 Dieri, 37, 49 Diffusion of law, 159 Diodes, 105 Diodorus, 132, 222, 386 Disarmament, 367, 369 Discovery before trial, 100 Divorce, 8, 285, 340 Doe, John, xiii Dolus, 163, 173 Doneau, Hugues, 286 Dooms of ,Ethelbehrt, 105, 108 Dorotheus, 164 Draco, laws of, 104, 109, 126, 233, 237 Dred Scott decision, 312-13, 318 Driver, G. R., and Miles, J. C., 386 Droit administratif, 326, 330-5, 336, 338--g, 341 Due process of law, 268, 313-14, 315-16

vi Duelling, 365 Duguit, Leon, 377 Duk-Duk society, 48 Duke's peace, in Normandy, 7g-80 Dumoulin, Charles, 206, 286 Duoviri perduellionis, 234 Earnest money, 258 Economic conditions, and growth of law, xv, 32, 42, 57, 169, 176, 178, 200. See also particular economic systems. Edictum perpetuum, 161, 186 Edward I, of England, 171-2 Egyptian law, xii, 132, 386 Ehrlid1, Eugen, 390, 402, 413 Eichhorn, K. F., 291 Elders, as judges, 60, 64-5 Eldon, John Scott, First Earl of, 192, 408 Elements of crime, 241, 248, 251 Eliot, Sir John, 210 Ellesmere, Thomas Egerton, Baron, 189,190,214 Embassies, 350, 352, 353, 366 Eminent domain, 51 Ends of law, 10, 23 Enemy property, 364 Engels, Friedrich, 53 Epieikeia, 182, 184 Equality, 67, 158, 206, 220, 225-7, 241-2,268,313-14,338 Equality of states, 359-60 Equity, 180-96; dualism of law and equity, 180-1; reasons for development of, 181-4; in Greece, 184-5; in Rome, 185-6; in England, 18693; comparison between Roman and English equity, 193-4; in United States, 194-5; abolition of distinction between law and equity, 1 95 Equity of redemption, 190-1 Equity receiverships, 195 Erasmus, 424 Escheat, 51 Eskimo, 32, 37-8, 39, 40, 52, 61 Ethnological jurisprudence, 28 Euric, King of the Visigoths, 105 Euripides, 112

Index Ewe, 55 Ex post facto legislation, 18, 221, 231,235,241 Exchange,32,57, 255-6 Execution: of civil judgments, 86, 87-8, 96, 101; of criminals, 223, 229, 239,243,249 Executive power, 326-7, 331-4, 337 Exile, as punishment for homicide, 2 33 Exogamy, 30, 31, 32 Expiatory encounter, 3g-40, 45 Expostulation, exchange of, 35, 40 Extortion, 235 Extra sermonem regis, 77 Eyres, 174, 188 False Decretals, 214 Family, 30, 31, 45, 47-8, 128, 186, 254 Family law, 50, 51, 54, 68, 271, 281, 283,288,295 Fascism, 250, 277, 295, 373, 393 Father-right, 31, 45 Federal Trade Commission, 421 Fellow servant rule, 33g-40 Felony, 238 Ferguson, Adam, 381 Ferri, Enrico, 249 Festuca, 258 Feudalism, 64, 68, 71-2, 77, Bo, 91, 159, 160, 166, 171, 175, 190, 193, 203, 208, 209, 211, 219, 231, 254, 276, 279, 385 Feuerbach, P. J. A. von, 240 Fichte, J. G., 24 Fictions, legal, 46-7, 66-7, 183, 247, 250,273,368 Fidei commissum, 193 Field, David Dudley, 296-7 Field, Judge Stephen J., 314 Fifth Amendment, 313-14 Finer, Herman, 420, 423 Fines and forfeitures, 73, 82, 174, 175 Fleta, 173 Folk law, 71, 75 Folk peace, 82 Food-gatherers, 38, 42, 53-4, 57 Food-sharing, 56 Force, and law, 6-7, 24, 61-2, 67, 228-30, 368-g

Index Forced labour, 73, 109 Forms of action, 93-5, 98; Roman, 93-4; common law, 98-g, 100, 163 Forms of government, and law, 17 Formulary procedure, 95, 98, 163, 165 Forsteal, 81 Forsyth, William, 391, 395, 431 Fortescue, Sir John, 393 Foucault, Guy, 142 Foundations, 288 Four Doctors, 167 Fourteenth Amendment, 268, 313-14 France, Anatole, xi Frank, Jerome, 375, 378 Frankfurter, Felix, 414, 419 Frankish Law, 73-7, 158, 166, 223, 2 37 Franklin, Mitchell, 413 Frankpledge, 49 Frazer, Sir James, 117 Frederick II, of Hohenstaufen, 423 Frederick the Great, 146, 205, 282-3 "Free law" school, 25, 294 Freedom, 157, 220; and law, 10, 18 Freedom of association, 268, 271, 273 Freedom of contract, 253, 262, 267, 268-g, 270, 271, 273, 294 Freeman, E. A., 220 French Civil Code, 208, 281, 283-90, 291, 292, 293; efforts at codification during French Revolution, 283-4; role of Napoleon, 284-5; changes of title, 285-6; arrangement of. 286-7; nature of provisions, 287-8; adoption in other countries, 288-go French Constitution of 1791, 331 French Constitution of the Year VIII, 331-2 French Council of State, 331-3, 334 French law, 168, 177-8 French legists, 286 French Revolution, 177, 178,197,225, 245, 278, 281, 282 Freund, Ernst, 416, 420 Friedberg, Prussian Minister of Justice, 204 Fuchs, Ernst, 377-8 Fundamental law, 212,215,302, 305-6 Furtum, 163

vii Fustel de Coulanges, Numa Denis, 117, 128,390 Gaius, 138, 139, 164, 165, 200, 262, 286, 385, 402 Gareis, Karl, 4 Garofalo, Raffaelle, 249 Gentilis, Alberico, 424 Geny, Fran,;ois, 377 German Civil Code, 290-4; controversy over codification, 290-1; prior partial codifications, 291; drafting of, 291-3; question of the hares, 292-3; characteristics of code, 293-4; compared with French Civil Code, 294; supplementary "special " laws, 297 Germanic law, xiii, 73, 88, go, 95--6, 153, 157, 158, 394 Germanists, 157, 291, 292 Gerontocracy, 56-7, 62 Gierke, Otto von, 4, 156, 157,291,393 Gifts, 32, 41 Gisnet, Morris, 392 Gladstone, W. E., 414 Glanvil, Ranulf de, 173 Glorious Revolution of 1688, 210,211, 217-18, 221 Glossators, 167 Glotz, Gustave, 384, 390 Glueck, S., and E. T., 250, 409 Gneist, Rudolph von, 420 Go-between, primitive, 35, 47, 60 Goebel. Julius, Jr., 383 Gondebad, of the Burgundians, 105 Goodhart, A. L., 376 Goodnow, Frank J., 420 Goodrich, H.F., 413 Gortynian Code, 104, J09, 120 Government: as synonym for state, 20; forms of, and development of Jaw, 171; absence of, among primitive peoples, 28, 30, 43, 52, 56 Grandes Ordonnances, 281 Gratian, 124-5. 201 Gray, John Chipman, 377 Greek law, xii, xiii, xiv, 5g-60, 88, 89, go, 91, 96, 135, 165, 259 Gregory XIII, Pope, 424 Grey, Charles Grey, Second Ear], 219

viii Grimm, fable of, 28 Grith, 81 Grotius, Hugo, 4, 203, 354-6, 357, 358, 367 Group solidarity, 48, 50, 57 Gudea the Just, 111 Guilt, 248-9 Gulak, Asher, 389 Gumplowicz, Ludwig, 381 Gunpowder plot, 214 Guthrie, William D., 419 Habeas Corpus, 218-19, 224, 225, 405 Hague Peace Conferences, 362-3 Haines, C. G., 404 Halifax, George Savile, Marquis of, 219 Halleck, General H. W., 364 Hammurabi, 104, 111-12, 237. See also Code of Hammurabi Hampden, John, 210, 219 Hamsocn or hamfare, 81 Handicrafts, 57, 113, 203-4 Hardwicke, Philip Yorke, Earl of, 192 Hartland, E. S., 388 Hatscheck, J., 411 Hauriou, Maurice, 377 Hazeltine, H. D., 395 Hebrew law, xiii, 61, 69, 119, Hegel, G. W. F., 32 Heliastic courts, 184, 235 Hellenistic law, 160, 165 Henry I, of England, 211 Henry II, of England, 171, 211 Heresy, 232, 238 Herodotus, 31 Hewart, Lord, of Bury, Chief Justice, 342, 344 High Commission, 210,215 High Court of Justice, 192-3 Hilary Rules, 386 Hill, David Jayne, 423-4 Historical school of law, 23 Hittite law, xii, 72, 104, 112, 120, 256 Hoadly, Bishop Benjamin, 388 Hobbes, Thomas, 28--g, 199, 204, 209 Hobhouse, L. T., 384 Hoebel, E. Adamson, 384 Hogbin, H. I., 390

Index Hohfeld, Wesley N., 400 Holdsworth, Sir William, 221, 384, 396, 403 Holiness Code, 103 Holland, Thomas Erskine, 419, 423, 424 Holmes, Justice Oliver Wendell, 319, 3 23, 376, 398--g, 4 17, 418, 4 19, 420 Holt, Sir John, 407 Holy Alliance, 360, 367 Homer, trial scene on shield of Achilles, 59 Homicide, 29, 33, 36-g, 41, 44, 47, 59, 64, 7 1, 74, 109, 125-6, 228, 229, 232-4 Hooker, Richard, 4 Horem Heb, xii Hortensius, 1 38 Horwill, H. W., 417 Rotman, Frani;ois, 206, 286 Howell Dda, laws of, 105, 110 Hughes, Chief Justice, Charles Evans, 31 5 Human sacrifice, as origin of punishment, 127-8, 389 Hurne, David, 381 Hunters, 42, 53, 54, 56, 57 Huxley, T. H., 376 Ibau, 39 lfugao,28,37,42,46--7,49,55 Ilbert, Courtenay, 412 Illegitimate children, 287 Imperial Chamber of Justice, 98, 169 Imperium, 76, 161, 185 Imprisonment, as a penalty, 243 Incest, 46, 47 Incorporeal property, among primitives, 52 Indeterminate sentence, 24g--50 Indictment, 70, 239, 246 Individualism, 157, 159, 179, 278--g Inheritance, 34, 57, 69 lniuria, 163, 173 Injunction, 181, 191, 193, 328--9, 334 Injuries, 108, 109, 121, 133, 340 Innocent purchaser for value, 9, 208 Inns of Court, 143-4, 168

Index Inquest: and development of jury, 75-6; of 1091 inNonnandy,79 Inquisition, 129 1nquisitorial procedure, 231>-7, 238, 239,244 Insanity, as a defence, 246-8 Institutes of Gaius, 164 Insult, 39 Intendants, 331 Intention, 29, 47, 49, 126, 186, 196, 241-2, 271, 380 Interests, 25 Interest-taking, 129 International administrative unions, 361-2 International arbitration, 353, 361, 363 International codification, 360-1 International congresses, 360, 362, 363 International law, 21, 24, 34g--69; as " weak " law, 350; primitive archaic, and mature phases of, , 350-4; in the age of Grotius, 354-6; as branch of the law of nature, 356--8; nineteenth-century system, 358--63· evaluation, 363-9 Interpolations, 164 Interstate commerce, 311-12, 316, 31g-20 Interstate Commerce Commission, 327, 344, 345, 421 Imerius, 167 Isaacs, Nathan, 409 Isidore of Seville, 201 Islamic law, 119 Italian law, 97, 166, 168, 2.18-9 ludex,95 [us civile, 161-3, 185-6, 187 [us gentium, 161-3, 185-6, 201, 206, 266,289 [us honorarium, 185 Iusnaturale, 200-1,402 Jackson, Andrew, 308, 312, 320 James I, of England, 189, 215 Japanese law, go Jay Treaty, 361 Jefferson, Thomas, 219, 310, 416 Jeffreys, Judge George, 240, 407 Jellinek, Georg, 375, 377, 403

ix Jenks, Edward, 27, 263, 383, 387-8, 394,396,399,409,410 Jennings, W. Ivor, 375 Jhering, Rudolf von, xv, 4, 25, 92, 156, 375, 377, 382, 393, 394 John, King of England, 211 Jolliffe, J. E. A., 382 Jolowicz, H.F., 410 Joseph II, of Austria, 205, 240 Josephine Code, 281 Judges: as arbitrators, 61; as administrators, 327; as administrators of criminal law, 238-g, 246; as scribes, 132; elders as, 86, 87, 96, 119; impartiality of, 67; independence of, 65, 187; priests as, 118--19; tenure of, 142, 218--19, 227, 331, 403 Judgment, 67, 69, 81>-7, 88, 95, IOI, 181, 189 Judicature Acts, 177, 192, 333, 386 Judicial decision, 16, 17, 18, 28, 30, 117, 152, 164, 196, 282-3, 286-7, 294, 301 Judicial duel, 85, 86, 88, 93, 96, 100-1, 116, 133, 151, 178, 228, 243, 244, 249, 252, 273, 1117 Judicial process, xi, 11, 18, 19, 61 Judicial review of administrative acts: in U. S., 32g-30, 335-6, 344; in England, 335, 342; in France, 331-2 Judicial review of legislative acts: nature of, 29g-301; connection with written constitutions, 301-4; origin in cult of the common law, 304-6; in Federalism, 306-7; in ideas of representative government, 307; in economic interests, 308 Julian, 138, 161 Jurisprudence, 24, 25, 152, 153, 378; books on, xi-xii Juristic Person, as the atom of juristic science, 68, 265-9, 273, 368 Jurists, see Lawyers Jury, 19, 75-6, 82, 98, 156, 157, 172, 174, 175, 178, 185, 195. 218, 221, 239. 244,246,247,398 Justice according to law, 370-1, 372, 374 Justices of the peace, 238, 239, 333-4

X

Justinian, 158, 163-4, 165, 167, 169, 172, 174, 223, 278 Justizia, 223 Juvenile courts, 249 Kaermartin, Ives de, 142 Kaffirs, 71, 125 Kai of Papua, 52 Kant, Emmanuel, 4, 10, 22, 23, 24, 39 2 Kantorowicz, Hermann, 377-8 Kelsen, Hans, 25, 377 Kendrick, B. B., 416 Kent, Chancellor James, 416 Kent, custom of, 11 King: and administration of justice, 63, 123; as magician, 117; in. English constitutional struggle, 210, 211-15, 21 7-20; in French constitutional struggle, 224-5; in other countries, 223-4; limitations upon, 222-4 King's Council, 65, 69, 82, 172, 187-8, 190, 224, 239, 331 King's peace, 43, 7o-83, 238, 383 Kinship, as basis of social organization, 30, 43-50 Kirghiz, 55 Kohler, Josef, 25 Koryak, 52 Koschaker, Paul, 386 Kreittmayr, W. X. A., 282 Kuhlenbeck, Ludwig, 390 Labeo, Antistius, 152 Labour contract, 260, 272-4 Labour injunction, 195 Labour legislation, 273-4, 315-17 Labour unions, 159, 268, 273, 293, 422 Lad of William the Conqueror, So Laissez faire, 227, 266, 272 Lamoignon, Guillaume de, 281 Land, 53-5, 62, 113, 270, 287 Land law, 171,173,399 Land register, 270 Land tenure, 169 Landfrieden, 78-g Law: binding character of, :u; biographical approach to, xiii; defini-

Index tion of, 3-7, 16-19; elements of, xi; enforcement of, 28; nature of. 3-7, 20, 341, 365; officialization of, xv; practical importance of, ix; psychological theory of, 12, 23; scope of, ix-x, 27; types of, xiii-xv Law: and certainty, 9, 18, 20, 226-7, 280, 371-2; and conquest, 62-4, 135, 388; and economic conditions, xv, 32, 42, 57, 169, 176, 178, 200; and force, ~7, 24, 61-2, 67, 228-30, 368-g; and forms of government, 17, 171; and freedom, 10, 18, 20; and morals, 7-9, 16-24; and power, 8, 10, 18; and religion, xiv, 7-g, 1415, 19, 2!)-31, 33, 117-30, lQl, 261; and revolution, 12; and rules of law, 18-20; and scientific law, 1315, 18; and sociology, 15, 18; and the state, 20-3, 25 Law merchant, 23, 160, 166, 176, 205 Law of Citations, 139, 165, 167 Law of nature, 15, 23-5, 19~208; contempt for, 196-7; as program of emerging social classes, 197; and French Revolution, 197-8; effect upon status, 198; in Athens, 199200; and Roman jurists, 200-1; and media::val church, 201-2; as legal protestantism, 203; and modem bourgeoisie, 203-4; as phase of technical jurisprudence, 205-8; and doctrine of rule of law, 209, 213; and contract, 265; and codification, 27g-80, 283-4, 402; as basis of international law, 356-8 Law of the land, 211, 218, 226, 227 Law schools, 136, 138, 143, 166, 170, 1 77 Lawfulness, 6 Lawgivers, 105, 112-13 Laws of science, 13-15 Laws of war, 350, 351, 352, 354, 357, . 362, 364, 366, 367 Lawyers: and the maturity of law, xv; influence on procedure, 86, 96, 1001, 130-49; types of, 131, 140-1, 1356, 137; functions of, 1111, 136; absence in archaic societies, 132-3; origins of, 134-5, 140; Greek ora-

Index tors as precursors, 134; in Rome, 135-40; in the Middle Ages, 140-1; in England, 141, 143-4, 146; in France, 142-3, 146; in modern European countries, 142, 145; in America, 144-5, 148; in Russia, 145-6; fees of, 134, 137, 141, 143, 144, 145; as law teachers, 136; professional associations of, 136, 141, 143-5, 147; professional ideals of, 148--9; and forms of government, 137-8; importance of advocacy, 132, 137-8, 147-8; importance of jurists, 136--9, 147; numerus clausus, 139, 145, 147; localization of, 139, 145; disciplinary powers over, 142-3; regulation of, 139, 143-5, 392; and capitalism as an economic system, 131, 139, 146--9; common lawyers and English constitutional struggle, 2og-13; and interpretation of codes, 279, 298; as critics of administrative justice, 341-2, 343-4; as creators of international law, 350, 357 League of Nations, 367-8, 426 League of the Iroquois, 350 Lease, 260, 276 Legal history, 24 Legal mechanisms, 31 Legal norms, 25 Leges barbarorum, 105, 123, 166, 38 7-8 Leges regi(E, 160 Legis actiones, 93-4, 95, 163, 186, 187 Legislation, 11, 16, 17, 23, 24, 30, 69, 75, 103, 106--9, I l l , 115-17, 158, 161, 164, 183-4, 297-8, 300, 302, 322, 329, 346, 378 Legnano,Giovannida,424 Leist, B. W., 406 Lerner, Max, 415 Le Tellier, 142 Levy-Ullmann, Henri, 376 Lex: £butia, 186; Aquilia, 163; CaljJurnia repetundarum, 235; Cincia, 137; Cornelia, 186; Valeria, 235-6 Lex: Alamannorum, 123; Baiuvariorum, 123, 124; Salica, 105, 110, 123; Visigothorum, 105, 123

xi Lex talionis, 69, 114, 121, 127, 160, 232, 243 L'Hospital, Michel de, 142 Liability, 29, 93, 154, 162, 269 Libel, 214 Libellary procedure, 97, 163 Lincoln, Abraham, 308 · Lippert, Julius, 388 Lit de justice, 224-5 Literal contract, 261 Litigious equation, 85-6, 236, 252, 340- 1 Litis contestatio, 92, 95 Littleton, Thomas de, 173 Livy, 103,106,386,406 Llewellyn, Karl N., 375, 377, 378, 409 Lobingier, C. S., 387 Locke.John, 199,204,209,219,420 Logan, George Bryan, Jr., 59 Logic, and law, 25 Lombard law, 73, 166, 262 Lombroso, Cesare, 249 Lorimer, James, 401 Louis XIV, of France, 224 Lowie, R. H., 380, 381, 384 Loysel, A., 286 Ludwig, Emil, 411 Lukas, J., 411 Luther, Martin, 204 Lycophron, 199 Lycurgus, 105, 113 Lynching, 32, 46 Mably, Gabriel Bonnot, Abbe de, 279 Macaulay, T. B., 106 Madariaga, Salvador de, 426 Mcilwain, C. H., 403, 404 Magna Charta, 211-12, 217, 218, 221, 222, 223, 224, 306 Maine, Sir Henry, 30, 32, 43, 66, 69, 84, 94, 106, 117, 130, 170, 231, 235, 254, 255, 256, 259, 272, 385, 387, 389, 4o7' 409, 4 10 Maitland, F. W., 100-1, 173, 186, 213, 382, 386, 392, 393, 394, 396, 397, 398,399,403,4 12,423 Malays, 39 Maleville, Jacques, Marquis de, 284, 288 Malinowski, B., 31-2, 45, 378, 385

xii Malum prohibitum, 242 Mancipium, 260-1 Mandamus, 334 Manifestation, Writ of, 223 Mann Act, 9. 322 Mansfield, William Murray, First Earl of, 176, 205, 264 Manu, laws .of, 103, 105, 122, 123, 222 Marbury v. Madison, 309-10 Markby, Sir William, 375-6 Market, 253, 256, 257, 265-70, 273, 277 Market peace, 72 Marriage, 34, 69, 111-12, 114, 255 Marriage settlements, 190 Married Women's Property Acts, 191, 271 Marshali, John, 309-13; his career, 309; his decision in Marbury v. Madison, 309-11; his judicial nationalism, 311; comparison with Taney, 312-13, 416; quoted, 425 Marsilius of Padua, 202 Martial law, 218 Marx, Karl, 377 Marxian theory of law, 25 Mathematical proof, 244 Mature law, xiv-xv, 65 1 84, 131, 149, 252 Maximilian III, of Bavaria, 281-2 MaxiII1:5, legal, 189, 240 Meinecke, Friedrich, 424 Melanesia, 48 Menes, King of Egypt, 105 Menger, Anton, 293 Metaphysical school of law, 23 Metus, 163 Miller, Judge Samuel Freeman, 416 Milton, John, 215 Ministry of Justice, 347-8 Misdemeanour, 238 Mitteis, Ludwig, 394, 409-10 Modestinus, 139, 164 Mohave Indians, 39 Mommsen, Theodor, 128, 235, 291, 39°, 4°7 Montesquieu, 253-4, 307, 343, 411, 423 Morals, and law, 16, 19, 24, 31 More, Sir Thomas, 144

Index Morgan, L. H., 47, 52 Mortgages, 190-1 Moses, 105, 106 Mother-right, 31, 45 Municipal law, 349-50 Napoleon, as lawgiver, 284-5 National Labor Relations Board, 327, 344-5 Natural law, see Law of nature Neilson, George, 384 Nelson, Leonhard, 375 Neo-Hegelianism, 25 Neo-Kantianism, 25 Neutrality, 362 New Britain, 36-7, 48 New Caledonia, 40 New Guinea, 28, 48 Nexum, 260-1 Noblesse de la robe, 142 Nolle prosequi, 247 Nootka, 52 Norman Conquest, effect on English law, 79-80 Norris-LaGuardia Act, 195 Norske Lov, 281 Notary, 263 "Notice" pleading, ,100 Nottingham, Heneage Finch, First Earl of, 191-2 Nudum pactum, 262 Oath: as basis of appeal, 72, 94; and compurgation, 90-1, 133, 166, 174; decisory, 89, 96; of fidelity, 77, 81; promissory, 255; and Truce of God, 78; of witnesses, 87, 89 Objective law, 158, 253 Ockham, William of, 202 Ofner, Julius, 377, 378 On tong Javanese, 32 Oppenheim, L., 423 Oppenheimer, Franz, 381 Ordeals, 3g-40, 8g-go, 91, 133, 238, 384 Order of the Coif, 144 Ormesson, Louis Fran~ois de Paule, Comte d', 224-5 Outlawry, 44, 75, 77, 82, 88, 228, 380 Ownership, 51, 52, 156, 158

Index Pacific embargo and blockade, 362 Pandects, 291, 292 Papinian, 138, 139, 164, 165, 194 Papuans, 28 Paragraphe, 96 Pareto, Vilfredo, 197, 201 Parkyn, Sir William, 407 Parlements, 283, 331; and registration of ordinances, 224-5 Parliament, 107, 154, 213-21, 342 Paschukanis, E., 410 Pasquier, Etienne, 143 Pastoral peoples, 42, 53, 57, 62 Pater familias, 68 Paterson, Judge William, 416 Pathetic fallacy, in primitive jurisprudence, 34 Patriarchal family, 30-1 Paul, 138, 139, 164, 402 Pays de droit coutumier, 168 Pays de droit ecrit, 168, 286 Peace, among primitive peoples, 38--g Peace concept, 72, 82-3 Peace money, 73 Peace movement, 362-3 Peace of Versailles, 367 Peace of Westphalia, 349, 354 Penal codes, 240-3, 245-7, 250, 251, 280,285,291,295,296 Penn, William, 194 Pentateuch, 103, 114, 118, 120, 125, 233 Pericles, 200 Permanent Court of Arbitration, 363 Personal property, 51-3, 66, 128 Personality of law, 161, 166 Peru, 49 Peter the Great, 145 Petition of Right, 2 18, 221 Petrazhitsky, L. I., 376 Philip the Fair, of France, 224 Piracy, 366 Piltacus, 105 Plains Indians, 28, 32, 45, 52 Planck, Gottlieb, 291 Planiol, l\Iarccl, 411 Plato, I 82, 200 Pleading, 86, 93, 94, 96--g, 132, 151, 1 74 Pleas of the Crown, 80--1

xiii Pledge, 52, 68, 257--g, 261,262 Plucknett, T. F. T., 400, 404 Plundering expeditions, 40 Plutard1, 390 Police power, 313-14 Police system, 240, 245, 246 Political pluralism, 23 Political prosecutions, 214 Political questions, 67, 304 Pollock, Sir Frederick, 4, 156, 1 83, 220, 348, 376, 382, 392, 393, 396, 397, 398,401,402,403,404,405,409 Pollution, and homicide, 125-6 Polybius, 381 Popham, Sir John, 240 Port, F. J., 419 Portalis, J. E. M., 284, 411 Possession, 51-2, 55, 156, 158, 173, 186, 208,257 Post, A. H., 428 Post-glossators, 167 Pothier, R. J., 286, 409 Pound, Dean Roscoe, 5, 156, 209, 219, 377, 378, 393, 398, 4o2-3, 408, 409, 4 17,425,427 Powell, T. R., 417 Powicke, F. M., 391 Pra:torian edict, 95, 161, 162, 172, 186, 1 93 Pr.etors, 94-5, 161, 162, 172, 185-6, 1 93 Precedent, 19, 135, 156, 157, 173, 1789, 188, 192, 297-8 Preliminary examination, 244, 246 Presumption of innocence, 244, 246 Priestly Code, 103 Priests, and administration of justice, 65-6, 132, 135 Primal horde, 31 Primitive law, xiv, 11, 27, 32-4, 43, 57, 60 Prison labour, 251 Private international law, 353 Private law, 153, 155, 171, 218, 267, 272-7, 280,294,297,373 Privateering, 363 Privy Council, 2 19, 306 Prize courts, 364 Probate courts, 195 Probation and parole, 24g-50

xiv Procedure: as element of judicial process, xi; in absence of courts, 35; and extension of king's law, 72, 76; supposed formalism of archaic, 846, 93-4; formative principles of, 85--6; among primitive peoples, 878; general tendencies of development, 86-7, 91-2: archaic, 88--91; Roman, 93-5, 97, 186; Germanic, 95--6; Athenian, 96; Romano-canonical, 97-8; modern European, 98; English common law, 98--g, 100; American, 99; modern, 100-1; reform of civil, 101; and writing, 102; and lawyers, 131, 133; as basis of cults of legal systems, 154-8;_ in equity, 192; reform of criminal, 245--6; administrative, 328--g, 340, 342; and rule-making powers of courts, 348 Proclamations, oral, 34 Proculians, 152 Proof, 29, Bo, 87, 89--91, 95, 98, 175, 244, 246, 258 Proof judgment, 95-6, 98 Property, 34, 36, 50-7, 128--9, 162, 191, 210, 232, 256, 269, 270, 271, 287, 293-4,295,311 Property marks, 35, 51 Proudhon, P. J., 36, 196 Proverbs, legal, ix, 167, 169 Provisions of Oxford, 187 Provocatio, 235 Proxenoi, 353 Prussian Civil Code, 282-3, 286, 290, 291 Public defenders, 244 Public law, 254, 267, 280 Public nuisances, 328 Pufendorf, Samuel van, 205-8, 3568,361,402,410 Punans, 28, 37 Punishment, 125, 127-8, 241, 243 Pure science of law, 25 Puritan Rebellion, 210, 211, 213, 218 Puritanism, 157, 179 Pym, John, 210

Qua:stiones, 234--6, 237 Qua:stores parricidii, 234-5

Index Quasi-contract, 252 Quasi-delict, 252 Quia Emptores, 171, 395 Quintilian, 138 Radin, Max, 393, 396--7, 419 Radin, Paul, 390 Raison d'etat, 354 Rape, 36 Real contracts, 256, 261 Real property, 173 Realist school of jurisprudence, 1718, 24-5, 372-3, 377-8 Reception of Roman law, 165-71, 176, 278 Reciprocity, theory of, 31-3 Reformation, 129-30, 167 Register of Writs, 172, 173 Reichskammergericht, 98, 169 Relation, idea of, 156-7, 158, 269 Religion: as phase of legal development, xiv, 7, 14-15, u8-19, 161; and the primitive mind, 29-31, 118; as origin of law, 117-19; and in the light of the archaic codes, 119-25; and law of homicide, 125-6; and law of deodands, 126-7; and origin of capital punishment, 127--8; and law of property, 128; and law of contract, 129, 255, 261; as support of authority, 129-30 Renaissance, 167, 170 Representative government, 307 Res mancipi, 162 Restatement of the Common Law, 297 Restraint of trade, 271-2 Revolution, and law, 12 Rewa, 54 Ridicule, in primitive society, 40 Right in personam, 181, 188, 192, 1 93 Right in rem, 181, 192 Right of counsel, 239, 244-5 Rights, 8 Ritchie, D. G., 401 Robson, W. A., 419,421,422 Rodell, Fred, 392 Roman law, xii, xiii, 66, 68, 88, 89, 9 1, 93-5, 134-5, 157--9, 160-5, 39°, 393

Index Romanists, 156, 291, 292 Romano-canonical procedure, 192 Romilly, Sir Samuel, 240 Roosevelt, F. D., 343-4, 420 Roosevelt, Theodore, 414, 419 Root, Elihu, 343 Rousseau, J. J., 199, 204 Ruggiero, Guido de, 402 Rule of law, or supremacy of law, 156, 157, 209--27, 238, 333-4, 347; origins of, 209--13; as expression of Puritan Rebellion, 210-11; role of Sir Edward Coke, 213-17; and Par· liamentary sovereignty, 217-18, 221; and recognition of civil liberties, 218-20; as universal phenomenon, 221-5 Rules of law: operation of, ix; certainty of, x; multiplicity of, x, xiii; and concept of law, 18-20; and " free law " school, 25; as fictions, 67; as element of judicial process, 153; and growth of equity, 180-3; and administration, 341; in international relations, 365-7 Sabinians, 152 Sachsenspiegel, 168 Sacramentum, 94 St. Germain, Christopher, 403 St. Louis, 142 Sale, 109, 256, 263, 276 Saleilles, Raymond, 377 Salmond, J. W., 419 Sanctions, 7, 8, 12, 19--20, 22, 23, 33, 36, 125-6 Sandburg, Carl, 149 Savigny, C. F., 23, 290-1, 377 Sc.:evola, Quintus Mucius, 152 Scandinavian codes, 281 Scandinavian law, 73 Schechter, Frank I., 397 Scherman, Harry, 410 Schulz, F., 391,394 Scott, James Brown, 424 Secret societies, primitive, 48-g, 380 Seduction, 8 Selden, John, 180,191,371 Self-incrimination, 244, 246 Seneca, 223

xv Separation of powers, 65, 235, 331, 335, 337-8,345-6,422-3 Sergeants, 144 Sextus £lius, 113 Sheppard's Touchstone, ix Sheriff, 333 Siete Partidas, 169 Silent trade, 256, 272 Slavery, 66, 67-8, 108, 127, 155, 156, 179,201,205,226,231,260,313,389 Smith, Alfred E., 419 Smith, J. Allen, 308,415 Smith, J. N. P., 389 Smith, Munroe, 151,160,395,412 Social compact, 23, 254, 267, 307, 365 Social legislation, 273-4 Social stratification, 62, 64, 68 Socialism, 272-3, 293 Socialization of private law, 294, 297 Sociological laws, 15 Sociological school of law, 25 Sohm, Rudolf, 158, 378, 385, 410 Solon, laws of, 104, 113, 126, 236, 237, 386 Sophists, 199--200, 401 Sorcery,32-3,38,46,71, 121 Sources of law, 15-18, 20, 22-3, 302 Sovereignty, 21-2, 359--60, 365 Soviet Civil Code, 295 Soviet law, 146, 250, 295 Soviet Penal Code, 4 Specific performance, 270, 272 Spencer, Herbert, 382, 390 Spengler, Oswald, 391 Stammler, Rudolf, 25 Stamp, Sir Josiah, 420 Star Chamber, 189,191,210,214, 239, 338 Stare decisis, 173 State: as formal source of law, 20-3; absence of, among primitive peoples, 27-8; and the kinship principle of social organization, 45, 49; origin of idea of, 6o-6; and lawyers, 133, 139; and criminal law enforcement, 236, 242; and hegemony of contract, 253, 267; and corporations, 268; conquest theory of, 381-2

Index

xvi State liability, 23, 220-1, 225, 227, 334,336 State of nature, 196, 199 Status, 198, 201, 254, 265, 266, 272, 276 Statute of Frauds, 264 Statute of Gloucester, 175-6 Statute of Quia Emptores, 171 Statute of Uses, 190 Statute of Westminster the Second, 171, 187--8, 395 Statutes of Pra:munire, 217 Stendahl, 286 Stephen, King of England, 211 Stephen, Sir James Fitzjames, 296, 408,434 Stern, B. J., 381 Stipulatio, 261-2, 265 Stoics, 200-1 Story, Joseph, 416 Strachan-Davidson, J. L., 389 Strict law, xiv, 154, 183, 184, 194 Stuarts, 210, 239 Stubbs, William, 73, 220 Suaheli, 258 Suarez, Francisco, 424 Subjective law, 158, 163, 253 Suicide: as self-punishment, 35; as retaliation, 37 Sulla, 237, 407 Sumerian law, 102 Summons, 75, 86, 92 Sumner, William Graham, 46, 53, 388 Sumptuary legislation, 109, 179 Sunderland, E. R., 386 Supremacy of law, see Rule of law Supreme Court of the United States, see Judicial review and Constitutionality Suretyship: and disintegration of kinship solidarity, 68; to ensure payment of judgment, 88; and origins of contract, 257--8 Svarez, K. G., 282 Sveriges Rikes Lag, 281 Swiss Civil Code, 18, 194, 294 Systematization of law, 152, 229, 280 Systems of law, as cults, 153-60 Szende, Paul, 394

Tahu, 71, u8 Tacitus, 31, 223 Taft, William Howard, 323, 324, 408 Taney, Roger Brooke, 312-13, 416 Tasmanians, 28, 40 Tawney, R. H., 203 Taxes, 14, 65, 124, 128, 210 Territorial waters, 366 Terry, H. T., 375 Testamentary disposition, 156, 193, 207 Theft, 36, 41, 47, 71, 74, 81, 89, 124, 163, 232-4, 239 Theodosian Code, 165 Theophilus, 164 Thesmothelte, 234 Thibaut, A. F. J., 290-1 Third degree, 244 Thomasius, Christian, 24, 205-6 Thrasymachus, 199-200 Thurlow, Edward, Baron, 192 Thumwald, Richard, 36 Tierra del Fuegians, 28 Tlinket Indians, 39 Tolstoi, 4 Torres Straits Islands, 52 Tort, see Wrongs Torture, 236-7, 240, 244 Trade and commerce, and growth of law, 57, 68, 92, 113, 135, 144, 155, 161, 166, 185, 190-1, 200, 203, 208, 234,240 Transaction wimesses, 34, 1q--8, 2589

Treason, 10, 47, 71, 77, 232, 239, 382 Treaties, 350, 351, 360, 361, 364 Trees, ownership of, 55 Trespass, 80-1, 173, 263 Treuga Dei, see Truce of God Trevelyan, G. 0., 404 Trial, xi, 44, 59, 61, 86, 87, 96, 100, 228,234,244,250, 251-2,385 Trial by battle, 90-1, 141, 174, 2378, 245, 249, 384, 39o Tribonian, 163-4 Tripertita, 113 Trobriand-Islanders, 37, 40, 45 Troglodytes, 253-4 Tronchet, Fran~ois Denis, 284 Truce of God, 77-9

Index Trusts, 190,192,193,194,288 Tryphonius, 402 Tudors, 172,176,210,219, 23'3--9 Twelve Tables, 103, 104, 105, 106, 110, 113, 114, 115, 120, 158-62, 165, 185, 386, 389 Ulman, Joseph N., 396 Ulpian, 138, 139, 164,401 Unification of law, 168, 170, 283, 291, 295, 297. 298 Uniform laws, 297 U. S.-1\lexican Claims Commission, 362 Unwritten constitutions, 301-2 Unwritten law, 16-17 Urukagina of Lagash, 111-12 Uses, 190, 193, 195 Usus modernus pandectarum, 291, 292 Vasquez, Fernando, 424 Vattel, Emerich de, 358-9 Veddahs, 28, 54 Verbum regis, 77 Vinculum iuris, 265 Vinding, Rasmus, 281 Vinogradoff, Sir Paul, xiv, 170, 385, 397-8,399 Vitoria, Francisco de, 355, 424 Vollenhoven, Cornelius van, 425, 426 Voltaire, 84, 279, 376, 411 Wageroflaw,90, 133,174 Wages, payment under Code Civil, 287 Waite, J. B., 408, 416 Walter-Logan Bill, 422 War, 46, 65 Warranties, 256,260 Warren, Charles, 418, 419, 436-7 Wars of the Roses, 176

xvii Washington, George, 219 Weber, Max, 134, 227 ,vhitman, "\Tait, 21 Wihtred, laws of, 124 '\\'ildenbruch, Ernst von, 293 Wilkin, R. N., 391 Will jurisprudence, 154, 157, 158,392 William the Conqueror, 7g-80, 175, 211 Willoughby, W.W., 418 Windscheid, Bernhard, 286, 291, 402 Witnesses, 9, 29, 34, 87, 89, 98, 239 Wolff, Christian, 205-6, 207, 359 Wolsey, Cardinal, 191 Women, 108, 109, 110, 111, 121 \Vorkmen's compensation, 326, 328, 339 Writing: as test of primitive law, xv, 34; as factor in development of procedure, 86, 96-8, 102; as a motive for codification, 102, 106-g, 116-17; and lawyers, 151; and the law of contract, 259, 262 Writs, 82, 98, 172, 173, 175, 187-8, 2 10,334 Writs of assistance and sequestration, 192 Writs of prohibition, 215 Written constitutions, 302-4, 306, 321 Wrongs, 32, 68, 74, 152, 154, 162-3, 228, 230, 233, 255, 256, 265, 271, 288. See also In juries Wundt, Wilhelm, 414 Yakuts, 55 Year Books, 173, 174 Young, Archibald, 390 Yukaghir, 53 Yurok, 42 Zaleucus, 105 Zallinger, Otto von, 385 Zasius, Ulrich, 170