Historical jurisprudence: an introduction to the systematic study of the development of law online

Ik




.i\ L^jilY OF CALIFORNIA
AT LOS ANGELES




JllSTOHirAL Jl I{ISIM{I1)KN(^E



A.N LNTKODl CTION T(l THE SYSTEMATIC

STl I)V OF THE I)E\ EUM'MEiNT

OF EAW



(irv ( AKLKION I.KK. Ph.D.

OK JOHNS HOPKINS IMVKRSITY

SOMKTIMK PKOKESSOR OK KNOLISH .lURlNPRUDKN* E IN

THK S<HOOL OK LAW OF IH< KINSoN roLLE<iE

MBMBKR OK THK llARS oK FKNN8YLV ANIA, NORTH ' AROLINA,

KTC, HT( .



Tin: MACMILLAN (OMI'ANY

LONDON : MVCMII.I.AN .V CO. In.

All liyhto >;>,, I,, I



('OPTKioirr, 1900,
Bt THK M.\«-MILLAN loMI'ANY.

Set up »nJ ele;tro«yp<i. PuWfhed Jueie. t<fx> Reprinted
No»e'nl»et, 1911.



2(ai««oe \ffnm
J. n ruatUnd *••. — IkTMlok it Kinllb <'«.



J



I ©fliiratc tfjis Uolume

HY I'F.UMISSION TO

SIU FREDKIMCK TOLLCK K. liAKi., M.A.. LLD.

. OKl'lS ^'UOKES^S«»R OF JUKISFRUDENCE IN THK
rXIVKRSITY OK OXFORD

AND l«>

FKKDKKK K WILLIAM MAITLAND. LL.D.

DOWNING I'ROKKSSOK OK THE LAWS OF KNtJl.AND
IN THE 1 NIVKRSirV <'K «AMHR1D<;E



â– ^

^

^



PRKFA(.'E



\#



Tmk studv of Historical Jiii ispiiulfiicf possesses a com -
ph'X atlractivont'ss. It has a \alii.' that is at once theo-
retical an«l inactical, an intcif.^t that arises troiii the ease
of ac(lui^ill.L,^ as wtU a-> from the (litHcnlty of compre-
^ hfiidini;-, its |iriii(i|ih's.

"^ 'l"hc student tinds in jurisprudence a mental training'

^^"^^ that calls into fullest activity all the f(»rces wliicli years

devoted tn the study of the humanities have placed at

his disposal. LaULTuai^es. history, philosophy, — all these

conihined aiv insutVuieiit to uidock every harrier to the

'if complete know h-dL,^e of this mo>t far-rcachint,^ science.

'* Yet the man devoid of collen'c education, — without any

"^ education, indeed, hcyond that sutlicient to enahle him

to pass the usual har examination. — tinds in llistorii'al

.lurisprudcnce matters not onl\ of deei)est interest, but

of hit,du-sl value. The la\\\cr Hnds therein tiu' solid

i foundation upon which rests ni(.(lcrn law : the \ ital ftwce

^ <»f that law. which to him is I ficu a tiling- to he merely

memori/.eil : and underslandiuL;- i»f those principles which
are not sehhuu hy him only dimly discerned in eiuictment
'^ and precedent. The student of th<- liheral arts tinds in
iiirisi>rudence the n-coid <<\ natiiuial development, the
kev t«> the j,M-cat movements whii h have made ami unmade
dvuiusties, the explanation of that which w.)\dd wiih(Uit n
be so «»bseure as to defy un<leistaiidiu^^

The sttidv of jurisprudence is as protitahle for him who
has l.ul little time to dc\o(e to ih.- pursuit of <'ulture a>
for him whose wlioh- life i> dc\..ted to such pursuit. In
both cases the results will h.- a^ sat isia. loiy as tln-y will



viii J'UKIAC'E

Ik- iliflfiTfiit. To «ii< h vtMtl.iit will Itf L^ivt'ii that which
he st'fks ; ami tn liiiii w hosr lalmrs liavr Iti-t-ii the least
will Ik- ^\\vu that which to him is as siitlieiiii,' as is the
reward o{ him wlm has lahon'd thn>ui,'h all of life's day.

Historieal Jurisin-mh-mc has Ih'cii devehijied in the Old
W.irhl. In university and in study, durini,' a score of
lenluries, the ahlest thinkers have «,Mvtn of their hest
eff<»rt to perfect the science, until it has achieved an
in>iK»rtanee not excelled l)y that of theoloi^-y. In the
New World the northern continent has hccii surpassed
hv the southern in this science In South America the
stud\ of jurispiudcnci* «-arly found an honored place. In
the I'nitcd States the rush and tumult of nuiterial proj<-
re.ss has caused the philosophical to recoil hefiuv the
impact of the ultra-piactical. Scicntilic jurisj)rudenee
ha.s heen a thinj,' unknown to the majority, not even heini;
consider«Ml a necessaiy Itackt^Tound for the comprehension
of law.

The inevitahle reaction has lately occurred. .\monor
the causes to which it can he ascrihed may he placed the
intluence of the few institutions where devoted teachers
have kcjit fresh the learnin^f of the old law ; the <lesirc
of scholars t(» hriuLf home to stiuh-nts the truth that,
witlntut a knowledi,'e of the juiisprudencc of a nati<»n, its
liiHtory cannot he cnmpreheiided ; the ciiii\ jction anioni;
the leaders of juridical thou^dit that the principles so
familiar to them should he masteied hy every eaiidiilate
for the Mar: and the appreciation hy the -^n-rn'ral rea<ler
of the fact that in juiisprudencc is to he fduiid a pinlific

.m»urce tif culture.

The intlu«Mice of this aw aUeiiiiiv,' of JMter.^l in scientitii-
le^al study has stimulated me to puhlish this \olume. Il
does not jiurport to cmitain within its cn\frs the sum ot
the worhl's knowled^'cof Ic^nil d«'velopn)ent . Its i>ur|>ose
will Im' HtTved if it prove a helpful ;,'uiile l<. the folhiwer
of the systematic studv of law. an ai<l to the teailier of



PREFACE ix

jurisprutlciicf who seeks a Kasis for liis expositions, or ;i
ineans of conveying- infctniiatiou to the general reader.

The t«'Xt is generally hased upon original research :
but 1 ha\(' not hesitatecl to av;iil myself of the results
achieve<l l»\ those great niastt'is of the law, among whom
Dahn. Ksmein, Jolly. Karhiwa, Kohler, .Maine, Maitland.
Mommscn. Mnirhead. I't-iscr. i'olloi-k, Revillout. Sa\ign\.
S<»hm. I'tc., hold honored place I ha\c note(l special
<»bligations in their ap[iropriate positions.

I desiiv to express m\' thanks to Joseph (nllen A\er
and John K. Larus for the patience and leai-ning wineh
liave lightened many burdens which the passage of this
volume through the press has brought to me.



(J I V CAltbKTOX LEE.



MiKTuRl' A I. I (KPAKT.M KN I ,

Jl>HNI|l HolKlNS r.MVKHsnY

I'.IOO.



CONTENTS

L\TH(U)r("n(>N

THK PUOVISCK OF IIISTORIC AL jriU ^f W DKy K
TAKT I

77/ A' FOCMiATIOys OF LAW

CHAl'TKK I
TiiK Law of Bahylonia



•lltiTIMN














PtUR


I.


History and Sources IJ


II.


.liidicial Pioce.><ses












17


III.


I'urcliase aiul .Sale












20


IV.


Mortijages ....












2H


V.


Haiikiii"; ....












:;o


VI.


Contracts ....
(<i) Master and Servant .
(/') Kent ....












38
40


VII.


I'artuersliii>












41


VIII.


Family K<lations
(u) Marriage .
(Ii) Adui>tion .












1-2

»_■
tl


I\.


Iidieritance and Testaments












H


X


Tlu> Influence of Haltvlmiian La


l\V










l:)



(iiAi'ir.i; II

Tllh Law i>i \'a,\



I.


History and Sources .






.VI


II.


I'roiHTty — ()\N


nershi|


> and


I'os.^ession


•ili


III.


Contracts .








rit;


IV.


Ix)ans








>VA


V.


Least's








. 70



Sll



CUNT K NTS



VI. Miirtf;.ij;e«» kiid I'ledgfS

\ II. Tartitrr-'hip ....

VIII. Ik)in«'»lic UelatiuiiK ....

IN riii- r.i!«- <if I he KiTVptian l-«'^'al Sy-t«'ui



71

71
70
H4



( II \rri;K m



I .^



i'llil M< I \



hC.



( n \v\\.\: \\



I iij I. \\v of Imiaki.



I.


History ami Source^






ft.i


II.


The .Itidicial SyMeiii






. Mil


III.


hiiinentic Kelatioiio






1«M


IV.


l"r«>i>»-ity Ki;;hts






no


V.


I>eht, IMedjje, arxl Interest






114


VI.


Tortx himI I.ia)>ilill<-« .






IK)


Vil


Siirre^sioi.






. 119


vm.


I.at.T Hel.i. A l.,oN






. 120



ill.U'lKK V
Vuy Law oj Im>ia



1.


lli«t<ii_\ aiiil .»M.iiir«-


. ija


II


pMliiettir He|ati<>li>


ii»«i


III


Iiiheritancf ......


l;i.i


IV.


The .Iiidieial .svsi.-ii-


. i:i»


V.


<)wiH'n»hi|i . . .


114


VI


Ik-liU, I^iuiix, ami Interest


im


VII


|{ailii>eiit<i .....


i.'^>


VIM.


Coiitrart* .


l.M


IX


.Maitt'T ami S.rvaiit


ir>:i


\


t.iahilitv


IM


XI.


h«lr .


156


XII.


I'artneriihi|>


l.">0


Mil


Mixleni Forci* ol lliiidu l^\\


l.'.T



Ct)NTKN'I'S



XUl



(HA I' IKK VI





hn 1


, \u <>t (,\:v yi r




lll.%






r «••■


I.


Ili.storirnl ('oiKlitinns




. ir,<>


It.


l>fV»'lo|>llltMlt




itJi




(/() Sparta




. n;:.




(/<) Atln-ns




ii;^


m.


.Iiidicial pRK-i-ilmt'




. i:-*


IV.


Ddiiii'^tic Ki-latioio




. isj


V.


Commercial Law


.


. 1H4



I'AKl 11



TllF. l)KVEl.«iFilKST Of J' IHSPh'l/tKXrK
CHAITKU Vil

KvitIV IJiiM AN I.AW



I. Ili.>tiirical Intnxlurtioii

II. homestii" Ui'latioii^.

III. Servian Keforiiis

IV. Tlie Twlvf Tal.les .
V. .Imlicial I'mfiMlm.'



1S7
lit.-.



( iiArTKi; VIII

1'kKH>|> III I IIK lUlTHt.IC



I. The Stipulatio ....
11. Beginninjjs (if I'ra-toriun haw .
III. The Knriiiulary Sy.^t••m
I\'. Ui.se of the Jtts fleutiuin
V. Law of tin* Later Kpjuililir

(«i) .\eijiiireiiieiit of I'mjierty
(h) IVoU-i-tioii of l'o.-vv,s.««ory Uiijht
(«•) l'ra>toriuii SucctfhHJon
(«/) Pra-toriaii Coiitract-s



•JU

•j:5.">
*J:WJ
2:{!»
'2\1

•J I.-.



\1V



roNTKNTS



(IlArili: i\

lii» I. AW of NIK Kai:i \ KmI'IKE
• ll tl- >

I. Sourc«* .......

II. Kl««» of th»* I^Ral Pnifeviioii

III. < treat Hoiiian .lurist.H ...

I\'. Characteristics of Imperial Juris|inicleiice



•J.V)



( ILVl'lKlt X



I n» L\w of iiiK (hui'^tian Kmiiiik



I. R«'viiU'» 111 ili«- t'oiisiimtiniiiil ( hanj;»

IF. iW'cliiip of Sci«Mitific .Iiiri>4pru<l»»noe

III. Inriufiice of (.'liriHtiauity .

IV. Ik'j^iiiiiiigw of C'<^iticjitnni
V. The Theo«lo«ian C'o«Ie

VI. IVivate C'mlificatiuiis



2<»H

-'74
•J7J«
•JHl



(ii.\ri];K XI



ThK .Ii si im.w l«iUE



Ml



Th** I.aw-Booki

( han^cii ill the OliI Law

(ft) iKiiiH-stir Ui-Iatioiis .

(h) l'n»|-rty ....

(«•) Succt*H*«i<tii and T«"««tain«'nt«
Su)>«tf*<|iient Hintory of .Iii.HtiiiiairH I,aw -it<Mik>



OHO

M7



( II A I' I l.i: Xil

( \ S < . \ \.K\S

I Ori(;in aixl droutli ....

II KoiiiHlatioii of th«* Corptu Jurii Canoin

III l->r|rMijutiiral .FiiriMlictiuii
l\ IIh- I-»w of .\farria(;r

V Hi*fc|>tioii of ihr Canuii I. ih



.124

.W7
141

:i4.'i



(M)NTKNTS



XV



CHAl'l Ki; Mil

liAltllAIM \ N ( DDKS



I. Tilt' Uatbariaii Iiivu.sion.-'
II. The 'IViitunic Svsteiii



PAOB

3C0



I'AKT 111
Tin: i:i-:>.i\\j\>.s ay MoiiEity .n insi'in uEyt'E

( IIAI'IKI; XI \
TiiK HENKWhi- "^Min u^ Koman Law .'386



(liAI'TKK XV



liiK l{i:(iriioN UK Human Law



F. Italy

II. (Jertnaiiy .....

(»j) Ii)ti(Mliicti»)n of Hoiiiaii Law
(6) Nativf Kl«'iiKMit in tlie Law
(r) .McMl«*ni C'tnles .
III. Franc** .....

(a) CoutuiJifs ....

(/)) Onloiiiiiiures
(c) MuilfTii (.'(xle.s .
\y. ."^pain ......

V. Scotland



39«

;»«>

â– VM

ill

410
41«
42.{
4'J7
4:(1
4.J4



ciiArii;!: xvi

L MM ^ I \<ii i-ii L \w

I. Hefore the ('oiniuest ...

II. The Norman l*«'rio«l ....

III. 1.4'pal Proprf«w niulor II<Mirv II

IV. Thf IU>ginniii(; of Cum' Law



441

4.'..-.
40.')

4S<1



HISTORICAL Ji:RISPRrr)ENCE

IN TKODI ( "1I()\

THK I'i:()VlNCK OK IIISIOKK AL .1 I lilSI'IiLDKNUE

Law is an outf^rowth of the needs of nuin in society.
In the lirst form uf social groupin^^, law was no more thau
the sum of the simple rules by which alone even the rudest
types of communal life were made possible. For scores
of centuries the science of jurisprudence was non-exist-
ent ; and yet in no one year of this diuturnity did the
fundamental principles of juridical science cease to develop
progressively.

The growth of nations brought into existence masses of
interpenetrating customs, whose fibres, reaching out, found
lodgment in the customs of contiguous peoples. Of system
there was little ; of scientific arrangement still less. The
customs, and later the laws, appear as if heaped one upon
another in inextricable confusion when viewed as a national
legal system. Considered from the local point of view,
however, they appear as suitable and sufticieut for local
needs.

Hut the limited application failed before the progress
that broke down the barriers of locality. National growth
caused an intermingling of men and a consequent confu-
sion of laws. Because of social and economic reasons, this
confusion was intolenible. Scientitii' arrangement an<i
adjustment became imj)erative. This task was beyond
the abilitv of th«tsi' to whom a mere knowledge of the let-
ter of many rules was knowledge of the law. Then arose
II 1



2 IIISTOKK AL .iriilSI'iaDKNCK

from necessity, as law had arisi'ii, the science of Jurispru-
dence.

Jurisiniulencc sh(»uUl Ik* regarded as more than a mere
knowledge of the hiw. It is a science, which endeavors
to oHcertain the fundamental principles of which the law
is the expression. It rests upon the laws as estahlisheil
facts ; but at the s;ime time it is a j>ower in brin^inj; the
laws into a coherent system and in renilering all partii
thereof subservient to lixcd principles of justice.

Although juris{»rudence is based upon the laws as given
facts, it is essentially a progressive siience, inasmuch as
the law which it endeavors l(» comprehend and systenuitize
is progressive and aims with ever-closer ajtproximation to
apprtjach the iilcals of the race in which it obtains. Juris-
prudence is so closely interwoven with the development
and history of tlie world as to claim a place among the
liistorical sciences. At the sjime time it is so closely con-
nected with — in fact, springing from — a clearly felt
ethical need, that it takes a place closely allii'tl to that of
ethical science. The conne<tion which hiw has always
held witit morality is hardly less intimate than that which
exists between its fundamental principles and those of
ethics.

The subjeit-UKitlcr of jnrisprutlence must, however, be
carefully distinguished from the precepts of morality.
The distinction is fundamental. Laws, in the sense in
which tiiey are here regarded, have reference to external
action. 1 hey cannot control the operations of the mind,
except so far i\h concerns the expression of that mind in
word or <leed. Hut morality is concerned abnost excln-
nively witli the mind, or with the internal state which
precedes action. Morality proposes a certain ideal of
character towjinl which all shoidd strive ; law proposes a
norm to wiiich iill must, at their |M-ril, conform. Morality
treats man as an intelligent U'ing, endowed with will and
eniolionM ; law regards him mc ndy as capable of having



INTHonr* TI<»N 3

riphts ami duties toward his ft-Hows. Morality places
ht'fore t'iieli man a complete code to \\ liich 1m* should
futirelv (Mdiform ; law iusists on those uornjs acconliuj,'
to which he must act if he wishes to exercise certain
optional rights.

What, then, is law ? It may he considered either as it
has heconie by the evolution of thouj^ht. or as it was when
it tirst became differentiated from closely related elements
of the primitive human consciousness. The definition f)f
the analytic jurists according to the former method is as
follows : According to Austin and Bentham. a law may !
he resolved into a general command, one emanating from I
a sovereign or lawgivt-r and imi)osing an obligation upon
citizAMis, which ol»ligation is enforced by a sanction or
penaltv, threatened in the case of disobedience. This
<lotinition, never (piiie true, never (juite applicable, is for
all tiiat n(»t to be wholly rejected in its jtolitical sense.
Yet it is too unsatisfactory, too impracticable, to be rec-
ognized as a complete definition of even the most modern
concrete law, though therein lies its chief claim to author-
ity. And certainly such a definition does not apply to the
early law, or that from which modern law has been evolved.
In the early forms of society there was. in place of the skil-
fully defined modern law, a body of custom, not attributa-
ble to any sovereign authority or lawgiver. This custom
was regarded as binding upon the whole l»ody of persons
forming the primitive social grouj> in which such custom
obtained. Furthermore, that custom was enforced in a
lude manner, either by ])ermitting the person injured by
its violation to avenge himself as best he could, or by
depriving the offender of certain rights, such as the aid
anil societv of nuMubers of the group. In such a state, law
would 1)0 l>est detined as that bo«ly of eustt)ms regarded
;us binding upon the mcml>ers of a grouji or class, and
enforce(l by their aulh<trity. This is law as tirst <liscerned
in all nations ; it is the form in whi«"h it constantly api»ear8



4 HISTORIC A I, .HKISI'KI UENCK

in the course of history. Only with tlu* rise of the abun-
dant m<Hlern legislation has it Ijeen seen that law mi>,'ht
Ik.* comeived as the coinniaiul of a scivfieii^n body.

When law first a])i»ears as an enforced lustoni, it wiis
not clearly defined as apart from other restraints and
guides to the conduct of mankind. *• Different periods
of history may l>e pointed out in which, one after the
other, religion, art, science, law, and social problems have
l)ecome for the first time so distinctly present to the con-
sciousness of mankind that they seem to have been then
first disct>vered or invented, to the advantage of future
ages ; but even in tiu- very beginning of civilization there
could n«)t have Iweu altogether absent any one of those
activities of the human soul, whi<h later became more
clearly differentiated one from anotiicr. taking separate
paths to various ends. "' Tliiis. in .Manu and other Hindu
literature, law may be found inlcrminglcil with science and
religion. Indeed, only with difliculty is law as defined
by the jurist distinguished froni law as revealed in
nature, especially in that semi-theological and anthropo-
morphistic conception of nature and natural law which is
still frequently to Ik- found. Morality is too often con-
fountb-'d with law ; and the «(»nfusion which has resulted
ha.s prodiu-ed some of the most ghastly pages of the his-
torv of mankind. Yet morality has ever guided and
stimulated law to a higher and just«T conception of its
ta-sk, while law has at the .same time rendered the com-
mands of morality more sharply defined and more exact-
ing. Law has al.so been frequently found confused with
religion ; in fact, the <'onnection <»f a body of laws with
the mitional gmt or gmis is a phenomenon to l)e found in
tlie historv of alm<»Ht every nation of antiquity. Law
has reinler«*d the conceptions of religion more awe-inspir-
ing, while religion has given to law a sanctity and njaj-
esty which have made poH-sible its growth to power. The
> lAiif Mtrrorutmui. Bk. VIII. cbu|> I, f 1



iNTiionrci ION /)

various sciences luive nut <^i(t\vn \vitln»iit tlic existence
of reciprocal inthiciues : alxive all, witlumt cuiistaiit and
intimate connectinn w itli the actual life of the jicojih-.

l*o8sil>lv nn <;rcat <h'|iartnicnt (if man's hi^'her thou^'ht
and activity is so closely connected with his actual lite as
is tlie law. Because law is that ImmIv of ( iistonis which
are enforced by the ciMiiuiunity. it is that wliich re^^ulutes
man's conduct toward his fellow-men. whiih controls his
gross passions and restrains his rude impulses. It ren-
ders possible common life. To a ^'reat de<,Mee, it takes its
rise in the demands of tra(h-, and it makes tinit trade
prai'ticahle. Much of it arises spontaneously in connection
with the possession of property, and it renders j)ossession
possible. in other words, it arises sitoiitancously in con-
nection with man's social life, and its distinctiveiu'ss from
cu.stom lies only in the fact that law is so necessary to the
existence of society and the common activity that it is
enforced by an authority.

On account of this most intimate conncition between
the actual life of a nation, with all its demands, and the
law by which that life is renderecl possible, law has been
detine<l bv Koussean. in Le Contrat SoridL as " la voloutS
(iSiiSruli" :^ l\)\ Kant as "the totality ot the conditions
under which the will of one may Ik- united with the will
of another acc(U-din<,' to a iniivcrsal law (»f freedom ") ^
and bv Savisj^nv as the rules whereby is delined the visible
limit witliin which the existence of each individual gains
sure and fice room."^ All these definitions rt\<,'ard law as
the will of the whole, or as the possibility of the lifi- of the
whole. The will and the conditions are, however, inst'i»a-
rable. The same will which creates the demand creates
al.so the conditions unilcr which that demand can Ite sat-
isfied.

' ("f. Il.-m-l. /V4.7...«»././i»> dfs Jiechtf. Xusalz. § 2.

2 Jt,rh(.-lfhif HVrAv. VII, p. 27.

"Siivi^'ny, S'l/nt' in den hrutiijtn liomischtu Hfchtii. I. p. ''i->-.



6 HISTOKK AL .JIKISI'KIDEXCE

Historical Jiu-ispiiKU'iirf deals with law as it appears
in its various forms ami at its se\eral statues of develop-
ment. It holds fast the thread whieh binds together the
modern and the primitive eoneeptions of law, and seeks to
traee, through all the tangled njuzes whieh separate the
two. the line of connection between tluni. It takes up
custom as enforeed by the community, and tiaees its devel-
opment. It seeks to discover the tirst emergence of those
legal conceptiniis w liieli have l>eeome a ])art of the world's
common store of law, to show the conditions that gave rise
to them, to trace their spread and development, and to
point out those conditions and influences which modified
them in the varying course of their existence. Hut His-
torical Jurisprudence is not a mere branch of anthropology
or sociology, excei)t in so far as any science which deals
with human life may be legarded as a department of those
studies. It does not attemjtt to set forth all laws and
customs wliich may be found in ancient and modern savage
tribes, as well as in ci\ili/.cd nations of every clime. If
such were its object, it would not be a science, nor wouhl
it be possilde foi- it to l)e complete. It would be a mere
collection tif laws and customs, having no necessary order
or system. Its attainment or lack of perfection woidd
de{)end merely upon the degiee of c(»m])leteness with which
its cr)llecti(m had l>een made ; and the disa[)pearance of
innnnn'iable tribes and even races, leaxing no record of
their laws, would l)e an iiu'radicable blemish upon its work.
It is not, therefore, all legal systems that we must treat
in ilctiiil in our present iniinir\. The systiMns which are
selected are either those which have c(»utribnled to the
great str«'aiii of scientific jurisj>rudence, or tli<»se whiidi
flow from it. They are groii|.ed around the jurispru-
<lence of Kurojte and of the couiltlics which owe to it
their civilization.

â– ^ To this great eeiitial Hire.nn of legal science the ancient

monarchies <>f |'.;ibvlon and I vg> p' have largely contrib-



INTRODUCTION 7

uted. The Phoenicians invented few or no legal principles ;
but they transmitted those which they received from older
civilizations. The Jewish law obtained in legal develop-
ment a place quite out of proportion to the part played
by that nation in ancient politics. Through the religious
influence which it has indirectly exerted upon the thought
of the whole world, that nation's legal system has been of
the greatest efficacy in moulding legal ideas centuries after
Israel ceased to exist as a nation. The Hindu law has
stood quite apart from the great progress of European
jurisprudence ; yet it is the most perfect example of
Aryan law as free from the influence of Babylon and
Egypt. The Brehon law of Ireland most completely pre-
served the Celtic form of the Aryan law. Its position in
the study of Comparative Jurisprudence is assured. It is
the greatest example in Western Europe of law which has
entirely escaped the influence of the Semitic and Roman
law. But the Brehon law, although valuable as an illus-
tration of the essential legal principles common to all
branches of the Aryan race, has been completely super-
seded by the English law. The judges who enforced the
laws of the conquerors of Ireland were ignorant that the
law which they so vehemently denounced was essentially
the same as the early English law, especially in those prin-
ciples which excited their condemnation. The Brehon law
perished before a system of higher scientific spirit and of
greater fitness to meet the needs of modern civilization.