Chapter 1. Ancient Codes

　　The most celebrated¹ system of jurisprudence known to the world begins， as it ends， with a Code. From the commencement to the close of its history， the expositors of Roman Law consistently employed language which implied that the body of their system rested on the Twelve Decemviral Tables， and therefore on a basis of written law. Except in one particular， no institutions anterior² to the Twelve Tables were recognised at Rome. The theoretical descent of Roman jurisprudence from a code， the theoretical ascription of English law to immemorial unwritten tradition， were the chief reasons why the development of their system differed from the development of ours. Neither theory corresponded exactly with the facts， but each produced consequences of the utmost importance.

　　I need hardly say that the publication of the Twelve Tables is not the earliest point at which we can take up the history of law. The ancient Roman code belongs to a class of which almost every civilised nation in the world can show a sample， and which， so far as the Roman and Hellenic worlds were concerned， were largely diffused³ over them at epochs not widely distant from one another. They appeared under exceedingly similar circumstances， and were produced， to our knowledge， by very similar causes. Unquestionably， many jural phenomena⁵ lie behind these codes and preceded them in point of time. Not a few documentary records exist which profess⁶ to give us information concerning the early phenomena of law； but， until philology⁷ has effected a complete analysis of the Sanskrit literature， our best sources of knowledge are undoubtedly⁸ the Greek Homeric poems， considered of course not as a history of actual occurrences， but as a description， not wholly idealised， of a state of society known to the writer. However the fancy of the poet may have exaggerated certain features of the heroic age， the prowess of warrior⁹ and the potency¹⁰ of gods， there is no reason to believe that it has tampered¹¹ with moral or metaphysical conceptions which were not yet the subjects of conscious observation； and in this respect the Homeric literature is far more trustworthy than those relatively¹² later documents which pretend to give an account of times similarly early， but which were compiled under philosophical¹³ or theological influences. If by any means we can determine the early forms of jural conceptions， they will be invaluable¹⁴ to us. These rudimentary ideas are to the jurist what the primary crusts of the earth are to the geologist¹⁶. They contain， potentially all the forms in which law has subsequently exhibited itself. The haste or the prejudice which has generally refused them all but the most superficial examination， must bear the blame of the unsatisfactory condition in which we find the science of jurisprudence. The inquiries¹⁷ of the jurist are in truth prosecuted¹⁸ much as inquiry¹⁹ in physic and physiology²⁰ was prosecuted before observation had taken the place of assumption. Theories， plausible²¹ and comprehensive， but absolutely unverified， such as the Law of Nature or the Social Compact， enjoy a universal preference over sober research into the primitive²² history of society and law； and they obscure the truth not only by diverting attention from the only quarter in which it can be found， but by that most real and most important influence which， when once entertained and believed in， they are enabled to exercise on the later stages of jurisprudence.

　　The earliest notions connected with the conception， now so fully²³ developed， of a law or rule of life， are those contained in the Homeric words "Themis" and "Themistes." "Themis，" it is well known， appears in the later Greek pantheon as the Goddess of Justice， but this is a modern and much developed idea， and it is in a very different sense that Themis is described in the Iliad as the assessor of Zeus. It is now clearly seen by all trustworthy observer of the primitive condition of mankind that， in the infancy²⁴ of the race， men could only account for sustained or periodically recurring²⁵ action by supposing a personal agent. Thus， the wind blowing was a person and of course a divine person； the sun rising， culminating， and setting was a person and a divine person； the earth yielding her increase was a person and divine. As， then， in the physical world， so in the moral. When a king decided²⁶ a dispute by a sentence， the judgment²⁷ was assumed to be the result of direct inspiration. The divine agent， suggesting judicial²⁸ awards to kings or to gods， the greatest of kings， was Themis. The peculiarity²⁹ of the conception is brought out by the use of the plural³⁰. Themistes， Themises， the plural of Themis， are the awards themselves， divinely dictated³¹ to the judge. Kings are spoken of as if they had a store of "Themistes" ready to hand for use； but it must be distinctly understood that they are not laws， but judgments³². "Zeus， or the human king on earth，" says Mr. Grote， in his History of Greece， "is not a lawmaker， but a judge." He is provided with Themistes， but， consistently with the belief in their emanation from above， they cannot be supposed to be connected by any thread of principle； they are separate， isolated³³ judgments.

　　Even in the Homeric poems， we can see that these ideas are transient. Parities³⁴ of circumstance were probably commoner in the simple mechanism³⁵ of ancient society than they are now， and in the succession of similar cases awards are likely to follow and resemble each other. Here we have the germ or rudiment¹⁵ of a Custom， a conception posterior to that of Themistes or judgments. However strongly we， with our modern associations， may be inclined to lay down a priori that the notion of a Custom must precede that of a judicial sentence， and that a judgment must affirm a Custom or punish its breach³⁶， it seems quite certain that the historical order of the ideas is that in which I have placed them. The Homeric word for a custom in the embryo³⁷ is sometimes "Themis" in the singular-more often "Dike³⁸，" the meaning of which visibly fluctuates between a "judgment" and a "custom" or "usage." Nomos， a Law， so great and famous a term in the political vocabulary of the later Greek society， does not occur in Homer.

　　This notion of a divine agency， suggesting the Themistes， and itself impersonated in Themis， must be kept apart from other primitive beliefs with which a superficial inquirer might confound it. The conception of the Deity³⁹ dictating⁴⁰ an entire code or body of law， as in the case of the Hindoo laws of Menu， seems to belong to a range of ideas more recent and more advanced. "Themis" and "Themistes" are much less remotely linked with that persuasion⁴¹ which clung so long and so tenaciously⁴² to the human mind， of a divine influence underlying⁴³ and supporting every relation of life， every social institution. In early law， and amid the rudiments⁴⁴ of political thought， symptoms of this belief meet us on all sides. A supernatural presidency⁴⁵ is supposed to consecrate⁴⁶ and keep together all the cardinal⁴⁷ institutions of those times， the State， the Race， and the Family. Men， grouped together in the different relations which those institutions imply， are bound to celebrate periodically common rites⁴⁸ and to offer common sacrifices； and every now and then the same duty is even more significantly recognised in the purifications and expiations which they perform， and which appear intended to deprecate punishment for involuntary or neglectful disrespect. Everybody acquainted with ordinary classical literature will remember the sacra gentilicia， which exercised so important an influence on the early Roman law of adoption⁴⁹ and of wills. And to this hour the Hindoo Customary Law， in which some of the most curious features of primitive society are stereotyped⁵⁰， makes almost all the rights of persons and all the rules of succession hinge on the due solemnisation of fixed⁵¹ ceremonies at the dead man's funeral， that is， at every point where a breach occur in the continuity of the family.

　　Before we quit this stage of jurisprudence， a caution may be usefully given to the English student. Bentham， in his Fragment on Government， and Austin， in his Province of Jurisprudence Determined⁵²， resolve every law into a command of the lawgiver， an obligation imposed thereby⁵³ on the citizen， and a sanction threatened in the event of disobedience； and it is further predicated of the command， which is the first element in a law， that it must prescribe， not a single act， but a series or number of acts of the same class or kind. The results of this separation of ingredients tally⁵⁴ exactly with the facts of mature jurisprudence； and， by a little straining of language， they may be made to correspond in form with all law， of all kinds， at all epochs. It is not， however， asserted that the notion of law entertained by the generality is even now quite in conformity⁵⁵ with this dissection⁵⁶； and it is curious that， the farther we penetrate⁵⁷ into the primitive history of thought， the farther we find ourselves from a conception of law which at all resembles a compound of the elements which Bentham determined. It is certain that， in the infancy of mankind， no sort of legislature， not even a distinct author of law， is contemplated⁵⁸ or conceived of. Law has scarcely reached the footing of custom； it is rather a habit. It is， to use a French phrase， "in the air." The only authoritative⁵⁹ statement of right and wrong is a judicial sentence after the facts， not one presupposing a law which has been violated， but one which is breathed for the first time by a higher power into the judge's mind at the moment of adjudication. It is of course extremely difficult for us to realise a view so far removed from us in point both of time and of association， but it will become more credible⁶⁰ when we dwell more at length on the constitution of ancient Society， in which every man， living during the greater part of his life under the patriarchal despotism， was practically controlled in all his actions by a regimen not of law but of caprice. I may add that an Englishman should be better able than a foreigner to appreciate the historical fact that the "Themistes" preceded any conception of law， because， amid the many inconsistent theories which prevail concerning the character of English jurisprudence， the most popular， or at all events the one which most affects practice， is certainly a theory which assumes that adjudged cases and precedents⁶¹ exist antecedently to rules， principles， and distinctions. The "Themistes" have too， it should be remarked， the characteristic which， in the view of Bentham and Austin， distinguishes single or mere⁶² commands from laws. A true law enjoins⁶³ on all the citizens indifferently a number of acts similar in class or kind； and this is exactly the feature of a law which has most deeply impressed itself on the popular mind， Causing the term "law" to be applied⁶⁴ to mere uniformities， successions， and similitudes. A command prescribes only a single act， and it is to commands， therefore， that "Themistes" are more akin⁶⁵ than to laws. They are simply adjudications on insulated states of fact， and do not necessarily follow each other in any orderly sequence.

　　The literature of the heroic age discloses to us law in the germ under the "Themistes" and a little more developed in the conception of "Dike." The next stage which we reach in the history of jurisprudence is strongly marked and surrounded by the utmost interest. Mr. Grote， in the second part and second chapter of his History， has fully described the mode in which society gradually clothed itself with a different character from that delineated by Homer. Heroic kingship depended partly on divinely given prerogative⁶⁶， and partly on the possession of supereminent strength， courage， and wisdom. Gradually， as the impression of the monarch⁶⁷'s sacredness became weakened， and feeble members occurred in the series of hereditary⁶⁸ kings， the royal power decayed， and at last gave way to the dominion⁶⁹ of aristocracies. If language so precise can be used of the revolution， we might say that the office of the king was usurped⁷⁰ by that council of chiefs which Homer repeatedly alludes⁷¹ to and depicts⁷². At all events from an epoch⁴ of kingly rule we come everywhere in Europe to an era of oligarchies⁷³； and even where the name of the monarchical⁷⁴ functions does not absolutely disappear， the authority of the king is reduced to a mere shadow. He becomes a mere hereditary general； as in Lacedaemon， a mere functionary⁷⁵， as the King Archon at Athens， or a mere formal hierophant， like the Rex Sacrificulus at Rome. In Greece， Italy， and Asia Minor⁷⁶， the dominant⁷⁷ orders seem to have univerally consisted of a number of families united by an assumed relationship in blood， and， though they all appear at first to have laid claim to a quasi-sacred character， their strength does not seem to have resided in their pretended sanctity. Unless they were prematurely⁷⁸ overthrown⁷⁹ by the popular party， they all ultimately approached very closely to what we should now understand by a political aristocracy. The changes which society underwent in the communities of the further Asia occurred of course at periods long anterior in point of time to these revolutions of the Italian and Hellenic worlds； but their relative place in civilisation⁸⁰ appear to have been the same， and they seem to have been exceedingly similar in general character. There is some evidence that the races which were subsequently united under the Persian monarchy⁸¹， and those which peopled the peninsula of India， had all their heroic age and their era of aristocracies； but a military and a religious oligarchy⁸² appear to have grown up separately， nor was the authority of the king generally superseded⁸³. Contrary， too， to the course of events in the West， the religious element in the East tended to get the better of the military and political. Military and civil aristocracies disappear， annihilated⁸⁴ or crushed into insignificance⁸⁵ between the kings and the sacerdotal order； and the ultimate result at which we arrive is， a monarch enjoying great power， but circumscribed⁸⁶ by the privileges of a caste of priests. With these differences， however， that in the East aristocracies became religious， in the West civil or political， the proposition that a historical era of aristocracies succeeded a historical era of heroic kings may be considered as true， if not of all mankind， at all events of all branches of the Indo-European family of nations.

　　The important point for the jurist is that these aristocracies were universally the depositaries and administrators⁸⁷ of law. They seem to have succeeded to the prerogatives⁸⁸ of the king， with the important difference， however， that they do not appear to have pretended to direct inspiration for each sentence. The connection of ideas which caused the judgments of the patriarchal chieftain to be attributed to superhuman dictation still shows itself here and there in the claim of a divine origin for the entire body of rules， or for certain parts of it， but the progress of thought no longer permits the solution of particular disputes to be explained by supposing an extra-human interposition. What the juristical oligarchy now claims is to monopolise the knowledge of the laws， to have the exclusive possession of the principles by which quarrels are decided. We have in fact arrived at the epoch of Customary Law. Customs or Observances now exist as a substantive⁸⁹ aggregate⁹⁰， and are assumed to be precisely⁹¹ known to the aristocratic order or caste. Our authorities leave us no doubt that the trust lodged⁹² with the oligarchy was sometimes abused， but it certainly ought not to be regarded as a mere usurpation⁹³ or engine of tyranny. Before the invention of writing， and during the infancy of the art， an aristocracy invested with judicial privileges formed the only expedient⁹⁴ by which accurate preservation⁹⁵ of the customs of the race or tribe could be at all approximated to. Their genuineness was， so far as possible， insured by confiding⁹⁶ them to the recollection of a limited portion of the community.

　　The epoch of Customary Law， and of its custody⁹⁷ by a privileged order， is a very remarkable⁹⁸ one. The condition of the jurisprudence which it implies has left traces which may still be detected in legal and popular phraseology. The law， thus known exclusively to a privileged minority， whether a caste， an aristocracy， a priestly tribe， or a sacerdotal college， is true unwritten law. Except this， there is no such thing as unwritten law in the world. English case-law is sometimes spoken of as unwritten， and there are some English theorists who assure us that if a code of English jurisprudence were prepared we should be turning unwritten law into written —— conversion⁹⁹， as they insist， if not of doubtful policy， at all events of the greatest seriousness. Now， it is quite true that there was once a period at which the English common law might reasonably have been termed unwritten. The elder English judges did really pretend to knowledge of rules， principles， and distinctions which were not entirely¹⁰⁰ revealed to the bar and to the lay-public. Whether all the law which they claimed to monopolise was really unwritten， is exceedingly questionable¹⁰¹； but at all events， on the assumption that there was once a large mass of civil and criminal rules known exclusively to the judges， it presently ceased to be unwritten law. As soon as the Courts at Westminster Hall began to base their judgments on cases recorded， whether in the year books or elsewhere， the law which they administered became written law. At the present moment a rule of English law has first to be disentangled from the recorded facts of adjudged printed precedents， then thrown into a form of words varying with the taste， precision， and knowledge of the particular judge， and then applied to the circumstances of the case for adjudication. But at no stage of this process has it any characteristic which distinguishes it from written law. It is written case-law， and only different from code-law because it is written in a different way.

　　From the period of Customary Law we come to another sharply defined epoch in the history of jurisprudence. We arrive at the era of Codes， those ancient codes of which the Twelve Tables of Rome were the most famous specimen¹⁰². In Greece， in Italy， on the Hellenised sea-board of Western Asia， these codes all made their appearance at periods much the same everywhere， not， I mean， at periods identical in point of time， but similar in point of the relative progress of each community. Everywhere， in the countries I have named， laws engraven on tablets and published to the people take the place of usages deposited with the recollection of a privileged oligarchy. It must not for a moment be supposed that the refined considerations now urged in favour of what is called codification¹⁰³ had any part or place in the change I have described. The ancient codes were doubtless originally suggested by the discovery and diffusion¹⁰⁴ of the art of writing. It is true that the aristocracies seem to have abused their monopoly of legal knowledge； and at all events their exclusive possession of the law was a formidable impediment to the success of those popular movements which began to be universal in the western world. But， though democratic sentiment may have added to their popularity， the codes were certainly in the main a direct result of the invention of writing. Inscribed¹⁰⁵ tablets were seen to be a better depositary of law， and a better security for its accurate preservation， than the memory of a number of persons however strengthened by habitual¹⁰⁶ exercise.

　　The Roman code belongs to the class of codes I have been describing. Their value did not consist in any approach to symmetrical classifications， or to terseness¹⁰⁷ and clearness of expression， but in their publicity¹⁰⁸， and in the knowledge which they furnished to everybody， as to what he was to do， and what not to do. It is， indeed， true that the Twelve Tables of Rome do exhibit some traces of systematic¹⁰⁹ arrangement， but this is probably explained by the tradition that the framers of that body of law called in the assistance of Greeks who enjoyed the later Greek experience in the art of law-making. The fragments of the Attic¹¹⁰ Code of Solon show， however， that it had but little order， and probably the laws of Draco had even less. Quite enough too remains¹¹¹ of these collections， both in the East and in the West， to show that they mingled¹¹² up religious， civil， and merely moral ordinances¹¹³， without any regard to differences in their essential character and this is consistent with all we know of early thought from other sources， the severance¹¹⁴ of law from morality， and of religion from law， belonging very distinctly to the later stages of mental progress.

　　But， whatever to a modern eye are the singularities of these Codes， their importance to ancient societies was unspeakable. The question —— and it was one which affected¹¹⁵ the whole future of each community —— was not so much whether there should be a code at all， for the majority of ancient societies seem to have obtained them sooner or later， and， but for the great interruption in the history of jurisprudence created by feudalism， it is likely that all modern law would be distinctly traceable to one or more of these fountain-heads. But the point on which turned the history of the race was， at what period， at what stage of their social progress， they should have their laws put into writing. In the western world the plebeian¹¹⁶ or popular element in each state successfully assailed¹¹⁷ the oligarchical¹¹⁸ monopoly； and a code was nearly universally obtained early in the history of the Commonwealth¹¹⁹. But in the East， as I have before mentioned， the ruling aristocracies tended to become religious rather than military or political， and gained， therefore， rather than lost in power； while in some instances the physical conformation of Asiatic countries had the effect of making individual communities larger and more numerous than in the West； and it is a known social law that the larger the space over which a particular set of institutions is diffused， the greater is its tenacity¹²⁰ and vitality¹²¹. From whatever cause， the codes obtained by Eastern societies were obtained， relatively， much later than by Western， and wore a very different character. The religious oligarchies of Asia， either for their own guidance， or for the relief of their memory， or for the instruction of their disciples¹²²， seem in all cases to have ultimately embodied¹²³ their legal learning in a code； but the opportunity of increasing and consolidating¹²⁴ their influence was probably too tempting¹²⁵ to be resisted. Their complete monopoly of legal knowledge appears to have enabled them to put off on the world collections， not so much of the rules actually observed as of the rules which the priestly order considered proper to be observed. The Hindoo code， called the Laws of Menu， which is certainly a Brahmin compilation¹²⁶， undoubtedly enshrines many genuine observances of the Hindoo race， but the opinion of the best contemporary orientalists is， that it does not， as a whole， represent a set of rules ever actually administered in Hindostan. It is， in great part， an ideal picture of that which， in the view of the Brahmins， ought to be the law. It is consistent with human nature and with the special motives¹²⁷ of their author， that codes like that of Menu should pretend to the highest antiquity¹²⁸ and claim to have emanated¹²⁹ in their complete form from the Deity. Menu， according to Hindoo mythology¹³⁰， is an emanation from the supreme¹³¹ God； but the compilation which bears his name， though its exact date is not easily discovered， is， in point of the relative progress of Hindoo jurisprudence， a recent production.

　　Among the chief advantages which the Twelve Tables and similar codes conferred on the societies which obtained them， was the protection which they afforded against the frauds of the privileged oligarchy and also against the spontaneous depravation and debasement of the national institutions. The Roman Code was merely an enunciation¹³² in words of the existing customs of the Roman people. Relatively to the progress of the Romans in civilisation， it was a remarkably¹³³ early code， and it was published at a time when Roman society had barely emerged from that intellectual condition in which civil obligation and religious duty are inevitably¹³⁴ confounded. Now a barbarous society practising a body of customs， is exposed to some especial dangers which may be absolutely fatal to its progress in civilisation. The usages which a particular community is found to have adopted in its infancy and in its primitive seats are generally those which are on the whole best suited to promote its physical and moral well-being¹³⁵； and， if they are retained in their integrity until new social wants have taught new practices， the upward march of society is almost certain. But unhappily there is a law of development which ever threatens to operate upon unwritten usage. The customs are of course obeyed by multitudes who are incapable¹³⁶ of understanding the true ground of their expediency¹³⁷， and who are therefore left inevitably to invent superstitious¹³⁸ reasons for their permanence. A process then commences which may be shortly described by saying that usage which is reasonable generates usage which is unreasonable¹³⁹. Analog¹⁴⁰， the most valuable of instruments in the maturity¹⁴¹ of jurisprudence， is the most dangerous of snares¹⁴² in its infancy. Prohibitions¹⁴⁴ and ordinances， originally confined， for good reasons， to a single description of acts， are made to apply to all acts of the same class， because a man menaced with the anger of the gods for doing one thing， feels a natural terror in doing any other thing which is remotely like it. After one kind of food has interdicted¹⁴⁵ for sanitary¹⁴⁶ reasons， the prohibition¹⁴³ is extended to all food resembling it， though the resemblance occasionally depends on analogies the most fanciful. So， again， a wise provision for insuring general cleanliness dictates¹⁴⁷ in time long routines of ceremonial ablution； and that division into classes which at a particular crisis of social history is necessary for the maintenance of the national existence degenerates¹⁴⁸ into the most disastrous¹⁴⁹ and blighting¹⁵⁰ of all human institutions —— Caste. The fate of the Hindoo law is， in fact， the measure of the value of the Roman code. Ethnology shows us that the Romans and the Hindoos sprang from the same original stock， and there is indeed a striking resemblance between what appear to have been their original customs. Even now， Hindoo jurisprudence has a substratum of forethought and sound judgment， but irrational¹⁵¹ imitation has engrafted in it an immense apparatus¹⁵² of cruel absurdities¹⁵³. From these corruptions¹⁵⁴ the Romans were protected by their code. It was compiled while the usage was still wholesome¹⁵⁵， and a hundred years afterwards it might have been too late. The Hindoo law has been to a great extent embodied in writing， but， ancient as in one sense are the compendia which still exist in Sanskrit， they contain ample evidence that they were drawn¹⁵⁶ up after the mischief¹⁵⁷ had been done. We are not of course entitled to say that if the Twelve Tables had not been published the Romans would have been condemned¹⁵⁸ to a civilisation as feeble and perverted¹⁵⁹ as that of the Hindoos， but thus much at least is certain， that with their code they were exempt¹⁶⁰ from the very chance of so unhappy a destiny.

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