Strictures commonly passed on English and American Statutes

------------------------------------------------------------------------

Transcriber’s Note:

This version of the text cannot represent certain typographical effects.

Italics are delimited with the ‘_’ character as _italic_.

Footnotes have been moved to follow the paragraphs in which they are

referenced.

All Essays were subdivided into titled sections except Essay I (Roman

and British Empires) and Essay IV. (Primitive Iceland).

The table of contents includes references to the Essays in Volume II.

Minor errors, attributable to the printer, have been corrected. Please

see the transcriber’s note at the end of this text for details regarding

the handling of any textual issues encountered during its preparation.

STUDIES

IN

HISTORY AND JURISPRUDENCE

HENRY FROWDE, M.A.

PUBLISHER TO THE UNIVERSITY OF OXFORD

LONDON, EDINBURGH

NEW YORK

STUDIES

IN HISTORY AND

JURISPRUDENCE

BY

JAMES BRYCE, D.C.L.

AUTHOR OF

‘THE HOLY ROMAN EMPIRE,’ ‘THE AMERICAN COMMONWEALTH,’ ETC.

FORMERLY REGIUS PROFESSOR OF CIVIL LAW IN THE UNIVERSITY

OF OXFORD; HONORARY FELLOW OF ORIEL AND TRINITY

COLLEGES, CORRESPONDING MEMBER OF THE

INSTITUTE OF FRANCE

IN TWO VOLUMES

VOLUME I

OXFORD

AT THE CLARENDON PRESS

1901

OXFORD

PRINTED AT THE CLARENDON PRESS

BY HORACE HART, M.A.

PRINTER TO THE UNIVERSITY

THESE VOLUMES WERE TO HAVE BEEN OFFERED TO HENRY SIDGWICK (LATE

PROFESSOR OF MORAL PHILOSOPHY IN THE UNIVERSITY OF CAMBRIDGE) WITH WHOM

I HAD OFTEN DISCUSSED THE TOPICS THEY DEAL WITH, AND IN WHOM I HAD

ADMIRED, DURING AN INTIMATE FRIENDSHIP OF NEARLY FORTY YEARS, A SUBTLE

AND FERTILE MIND, A CHARACTER OF SINGULAR PURITY AND BEAUTY, AND AN

UNFAILING LOVE OF TRUTH.

THEY ARE NOW DEDICATED TO HIS MEMORY.

PREFACE

These volumes contain a collection of Studies composed at different

times over a long series of years. They treat of diverse topics: yet

through many of them there runs a common thread, that of a comparison

between the history and law of Rome and the history and law of England.

I have handled this comparison from several points of view, even at the

risk of some little repetition, applying it in one essay to the growth

of the Roman and British Empires (Essay I), in another to the extension

over the world of their respective legal systems (Essay II), in another

to their Constitutions (Essay III), in others to their legislation

(Essays XIV and XV), in another to an important branch of their private

civil law (Essay XVI). The topic is one profitable to a student of the

history of either nation; and it has not been largely treated by any

writers known to me; as indeed few of our best known historians touch

upon the legal aspects of history.

Two Essays (III and IV) embody an effort to examine political

constitutions generally from comparatively unfamiliar points of view.

Five (IX, X, XI, XII and XIII) are devoted to the discussion, in a

non-technical way, of problems in jurisprudence which have both a

theoretical and a historical—to some extent also a practical—side.

Another sketches in outline the early history of Iceland, and the very

peculiar constitution of the primitive Icelandic Republic. Three others

relate to modern constitutions. One contains reflections on the history

of the constitution of the United States, a second describes the systems

of the two Dutch Republics in South Africa, and a third analyses and

comments on the constitution recently created for the new Commonwealth

of Australia.

My aim throughout the book has been to bring out the importance,

sometimes overlooked, of the constitutional and legal element in

history, and to present topics which, because somewhat technical, often

repel people by their apparent dryness, in a way which shall make them

at least intelligible—since they can hardly be made seductive—to a

reader who does not add to a fair general knowledge of history any

special knowledge of law. Technicalities cannot be wholly avoided; but I

hope to have indulged in none that were not absolutely necessary.

The longer one lives the more is one impressed by the close connexion

between the old Greco-Italian world and our own. We are still very near

the ancients; and have still much to learn from their writings and their

institutions. The current of study and education is at present setting

so strongly towards the sciences of nature that it becomes all the more

needful for those who value historical inquiry and the literature of the

past to do what they can to bring that old world into a definite and

tangible relation with the modern time, a relation which shall be not

only stimulative but also practically helpful.

None of these Studies have previously appeared in print except two, viz.

those relating to the United States and to the two Dutch Republics; and

both of these have been enlarged and revised. My thanks are due to my

friend Professor Herbert B. Adams of Johns Hopkins University,

Baltimore, and to the proprietors of the _Forum_ magazine respectively

for permission to republish these two.

Some Studies were (in substance) delivered as Public Lectures at Oxford,

during the years 1870-1893 (when I held the Regius Professorship of

Civil Law there), pursuant to the custom which exists in that University

for a professor to deliver from time to time discourses dealing with the

wider and less technical aspects of his subject. All these have,

however, been rewritten for publication; and whoever has had a similar

experience will know how much more time and trouble it takes to rewrite

a discourse than to compose one _de novo_. Two Lectures, delivered one

when I entered on and the other when I resigned the professorship, have

been appended, in the belief that they may have some interest for

members of the University and for those who watch with sympathy the

development of legal teaching in England.

I have endeavoured to bring up to date all references to recent events,

so that when such events are mentioned the book may be taken to speak as

from 1900 or 1901.

As it is now nine years since I was obliged (when I entered Mr.

Gladstone’s Ministry in 1892) to intermit any minute study either of

Roman or of English law, it is probable that the book may disclose an

imperfect knowledge of facts and views given to the world during those

nine years. Under these conditions I might have wished to keep the book

longer before publishing it. But life is short. Some of the friends to

whose comments and criticisms I had most looked forward while composing

these Studies have already passed away. So it seemed better to let what

I have written, under the constant pressure of other duties, go forth

now.

Among the friends whom I have to thank for information or suggestions

are Professors A. V. Dicey, Sir F. Pollock, Henry Goudy, and Henry

Pelham of Oxford, Sir Courtenay Ilbert (Parliamentary Counsel to the

Treasury), Dr. C. L. Shadwell and Mr. Edward Jenks of Oxford, Dr. F.

Sigel of Warsaw, and Mr. Jón Stefánsson of Iceland.

The Index has been prepared by Mr. J. S. Cotton, to whom I am indebted

for the care he has bestowed upon it.

_June 27, 1901._

CONTENTS

_VOLUME I_

ESSAY I

PAGE

_THE ROMAN EMPIRE AND THE BRITISH EMPIRE IN INDIA_ 1-84

Conquest or Absorption by modern European nations of the less 1

advanced races

Creation by this process of a sort of unity of mankind 2

Earlier effort of Rome to unify mankind 3

Part borne by England in the work of ruling and civilizing new 4

territories

The Colonies of England: the British Empire in India 4

Position of Rome and England respectively in their Empires 8

Origin of the British Indian compared with that of the Roman 8

Empire

Conditions favouring Roman and British Indian conquest 10

Military character of Roman and British rule 13

What the Roman and the English conquerors have owed to natural 14

frontiers

Strength of the Roman and British armies 17

Efforts to find a scientific frontier 19

The Romans and English as Road and Railway Builders 21

Success of both in maintaining internal order and security 23

Character of Roman and British administration 26

Despotic system: measure of self-government left to the subjects 30

Variations in provincial administration in Roman Empire and 35

India

Revenue and taxation of the two Empires 37

Employment of native subjects in civil and military posts 42

Civil rights of conquerors and of subjects 46

Respect shown to native religions and customs: contrast of 51

religious feeling in ancient and in modern world

Character of the conquerors as a source of their strength 58

Contrasts between the two Empires: geographical position of the 61

ruling race

Fusion of Romans and provincials: no similar fusion of English 62

and Indians

Influence of Climate, of Colour, of Religion 63

Languages and literature in Roman Empire and in India 70

Influences which favoured fusion in Roman Empire absent from 74

India

Retroactive influences of the provinces on Rome and of India on 76

Britain

What the experience of the English in India has proved 79

Causes which overthrew the Roman Empire 80

Probable future of British power in India 82

ESSAY II

THE EXTENSION OF ROMAN AND ENGLISH LAW THROUGHOUT THE WORLD 85-144

Geographical areas now covered by Roman and by English Law 85

Extension of Roman Law by conquest 88

Methods of Legal Administration in the provinces 91

Gradual assimilation of Roman and Provincial Law 97

Establishment of one law for the Roman Empire 99

How the Romans were able to create an imperial law 103

Spread of Roman Law after the fall of the Western Empire 105

Diffusion of English Law over regions settled or conquered 110

Legal systems which the English found in India 113

Policy followed by the English in dealing with Indian Law 117

Codification in India 121

Reciprocal action of English and Native Law on one another 124

Merits and working of the Anglo-Indian Codes 127

Roman Law in the Empire compared with English Law in India 133

Probable future of English Law in India 138

English and Roman Law over the world 142

ESSAY III

FLEXIBLE AND RIGID CONSTITUTIONS 145-254

Observations on the Constitutions of Rome and England 145

Old Classification of Constitutions as Written and Unwritten 148

Proposed new classification 150

Flexible Constitutions: how far distinguishable from laws in 154

general

Origin of Flexible Constitutions 159

Strength and weakness of Flexible Constitutions 163

Such Constitutions are rather elastic than unstable 168

Illustrations from the Constitutions of Rome and England 169

Dangers possibly inherent in Flexible Constitutions 175

Flexible Constitutions suited to aristocratic governments 178

Checks applied in Rome and in England 181

Influence of Constitutions on the mind of a nation 185

Illustrations from Rome and England 189

Capacity of Constitutions for Territorial Expansion 193

Enumeration of existing Rigid Constitutions 196

Circumstances under which Rigid Constitutions arise 200

Enactment and amendment of Rigid Constitutions 205

Various modes now in use for amending them 210

How far can Rigid Constitutions be definite or complete? 217

Stability of Rigid Constitutions 221

The interpretation of Rigid Constitutions 228

Contrast of Anglo-American doctrines with those of the European 230

Continent

American views as to Interpretation 232

Suitability of Rigid Constitutions to Democracies 234

Recent changes of opinion in the United States and England 239

Probable future of the two types of Constitution 242

Proposals for federalizing the British Constitution 245

Possible creation of new States and Constitutions 249

ESSAY IV

THE ACTION OF CENTRIPETAL AND CENTRIFUGAL FORCES ON POLITICAL 255-311

CONSTITUTIONS

The influence of aggregative and disjunctive forces on political 255

societies

Tendencies which may act either Centripetally or Centrifugally 261

Influences of Interest and Sympathy 263

Illustrations of the action of Racial and Religious sentiment 265

In the progress of civilization, material interest and sentiment 269

may be opposed

How Constitutions may use the existing Centripetal and 271

Centrifugal forces

Illustrations from Commerce, Law and Religion 274

Instances of the troubles caused by Racial or Religious 281

sentiment

Methods by which Constitutions may disarm or regulate the 286

centrifugal forces: illustrations

Difficulties due to differences of colour in races 291

How the Constitutions of the United States and Switzerland have 296

acted

The Centripetal force generally, but not always, dominant in 300

European history

Effects of Conquest and of Dynastic Succession 303

Probable future strength of the centrifugal and centripetal 307

forces respectively

Present tendency to the enlargement or consolidation of States 309

is not necessarily permanent

ESSAY V

PRIMITIVE ICELAND 312-358

Discovery and Settlement of Iceland 312

Beginnings of a Polity: the Thing 316

Rise of the Goði or Priest-Chieftain 317

The first political constitution of the island 322

Judicial organization and powers of the Althing 325

The Speaker of the Law 327

Thingvellir and the meetings of the Althing 327

General character of the Icelandic Republic 333

Growth and character of the law of Iceland 335

Complexity of the constitution and the law 337

Sources of our knowledge of the law 341

Illustrations of features of the early law 343

An action for the ejectment of ghosts 345

The Judicial Duel: Story of Gunnlaug Snake’s Tongue and Helga 348

the Fair

The introduction of Christianity 350

Reflections on the early history of Iceland 353

Fall of the Republic: subsequent fortunes of the isle 356

ESSAY VI

THE CONSTITUTION OF THE UNITED STATES AS SEEN IN THE PAST 359-429

Value of contemporary views of an institution 359

The _Federalist_: Alex Hamilton and James Madison 360

The United States in A.D. 1788 361

Predictions of the opponents of the New Constitution 366

Views of its supporters: dangers feared by them 369

Examination of the predictions of 1788 374

Characteristic merits and defects of American Democracy only 378

slightly foreseen

The _Democracy in America_ of Alexis de Tocqueville 381

Merits and flaws in Tocqueville’s study of the United States 382

His insufficient knowledge of England 385

His preoccupation with France 387

The deficiencies observable in his book scarcely affect its 390

present value

Condition of the United States in Tocqueville’s day 392

His description of the salient features of the nation 397

Advantages which he conceives Democracy to have secured 403

Evils he discovers in American Democracy 404

Causes which in his view maintain Republican government 406

His forecasts: the negroes: weakness of the Federal Union 408

Points omitted in his description 413

Chief events in the United States since Tocqueville’s time 415

Chief political changes of the last sixty-seven years 417

Examination of Tocqueville’s predictions 418

Summary of Tocqueville’s conclusions 425

General course of events in America since 1788 427

What Tocqueville would say to-day 428

ESSAY VII

TWO SOUTH AFRICAN CONSTITUTIONS 430-467

Originality of the Constitutions of the two Dutch Republics 430

Circumstances under which they arose 432

Constitution of the Orange Free State 436

Constitution of the South African Republic (Transvaal) 441

Observations on the Constitution of the South African Republic 448

Is it a Rigid or a Flexible Constitution? 449

Controversy as to the so-called ‘testing power’ 452

The Constitution is certainly a Flexible one 453

Observations upon both these Constitutions 455

Comparison of these Constitutions with that of Britain and that 458

of the United States

Relations of Executive and Legislature in these Dutch Republics 460

Practical Working of the Constitution of the Orange Free State 463

Working of the Constitution of the South African Republic 464

Postscript 466

ESSAY VIII

THE CONSTITUTION OF THE COMMONWEALTH OF AUSTRALIA 468-553

Interest attaching to the new Constitution of Australia 468

Origin and progress of the movement for federalizing Australia 471

Causes which induced Federation 477

Influence of a Pan-Australian sentiment 480

Physical and racial conditions favouring Federation 483

Comparison with the conditions of the United States and of 487

Canada

Two leading types of Federal Government 489

Distribution of powers between the Nation and the States in the 491

Australian Constitution

Position of the Australian States under the Constitution 494

Differences from the Federal systems of the United States and of 498

Canada

The National Government: few restrictions on its powers 501

The Legislature: Representation of the States in the Senate 503

The House of Representatives 506

The Executive and the Judiciary 508

Question as to Constitutional Appeals: the British Government 509

yield to Australian sentiment

Intended working of the scheme of Government: The Cabinet 513

Provision against legislative deadlocks 516

Relations of the Two Houses 518

Financial provisions: railways and rivers 521

Location of the national capital: admission of New States 522

Mode of amending the Constitution 523

Relations of the Australian Commonwealth to the British Crown 525

General comparison of the Australian Constitution with that of 527

the United States

Comparison with that of the Dominion of Canada 528

Further observations on the Constitution 531

It is less strictly Federal and more National than that of the 532

United States

Its highly democratic character 535

It contemplates a party system 539

Difficulties which may arise from the existence of a third party 540

What political issues are likely to arise in Australia? 542

Probable prominence of Economic questions 545

Possible creation and admission of New States 547

Will New Zealand enter the Federation? 548

Tendencies to consolidation maybe strengthened by disputes with 550

foreign powers

Future relations of Australia to Britain 551

_VOLUME II_

ESSAY IX

OBEDIENCE 1-48

Different Theories of the Nature of Political Obedience #1#

The grounds of compliance in general: Indolence #6#

Deference and Sympathy #9#

Reason and Fear #12#

Respective strength of these springs of Obedience #14#

Will as a political force: Illustrations from the East #15#

Formation of the habit of Obedience in the individual #19#

Influences forming Obedience in early societies #21#

Slight interest of men in liberty for its own sake #24#

Is the tendency to obey likely to decrease? #26#

Influences apparently making for subordination #28#

What may be hoped for the future of democratic government #31#

How a pessimist might view existing conditions #33#

Conclusion: The disposition to obey will be permanent #41#

Note on the application to the definitions of Jurisprudence of a #44#

theory of Obedience

ESSAY X

THE NATURE OF SOVEREIGNTY 49-111

Confusions regarding the term Sovereignty #49#

Sovereignty _de iure_ and _de facto_ must be distinguished #51#

Sovereignty _de iure_ exists in the sphere of law only, and is #56#

not concerned with obedience

Sovereignty _de facto_: concrete instances #59#

Relations of Sovereignty _de iure_ to that _de facto_ #64#

Action and reaction of each on the other #68#

The Roman doctrine of Sovereignty: the people are the source of #73#

political power

Mediaeval views of Sovereignty: Emperor and Pope #79#

New theories of the sixteenth and seventeenth centuries #82#

Bodin, Althaus, Hobbes #84#

Relation of Hobbes’ system to the events of his time #86#

Bentham revives Hobbes’ doctrine #88#

Views of John Austin: illustrations of their unsoundness #89#

Confusion of various questions regarding Sovereignty which are #94#

really distinct

Rights in the moral sphere of Sovereignty _de iure_ and #98#

Sovereignty _de facto_

Sovereignty in International Relations #101#

Sovereignty in a Federation #104#

Conclusion: Theoretical Controversies regarding Sovereignty have #108#

mostly had their origin in current politics

ESSAY XI

THE LAW OF NATURE 112-171

Origin of the notion of Nature as a ruling force #112#

It is different from modern conception of the Laws of Nature #117#

Nature as a force in human society #120#

The term ‘Natural’ as applied to Customs and Laws #122#

St. Paul and the Greek philosophers on Natural Law #124#

The Roman Law of the Nations (_Ius Gentium_) #128#

How the ‘common law of the nations’ was formed #131#

Cicero on the Law of the Nations and Law of Nature #135#

Growth of the idea of Natural Law among the jurists #138#

Practical identification of _Ius Gentium_ and _Ius Naturae_ #142#

Points of difference which remained: Slavery #144#

Extension of Roman citizenship removes the need for a _Ius #147#

Gentium_

Senses in which the jurists use the term ‘Nature’ #148#

Value and practical influence of the notion of Natural Law #151#

The Law of Nature and Law of God in the Middle Ages #157#

The Law of Nature in Modern Times #161#

Its relation to the Law of England #164#

Its influence on the rise of International Law #167#

‘Natural Law’ as meaning a Philosophy of Law #169#

Conclusion: Comparative quiescence of the idea in recent times #170#

ESSAY XII

THE METHODS OF LEGAL SCIENCE 172-208

No Philosophy of Law among the Roman Jurists; is such a #172#

Philosophy necessary or serviceable?

Four Methods employed in Legal Science #174#

The Metaphysical Method: German _Naturrecht_ #174#

The Analytic Method: the Benthamites #178#

Errors in John Austin’s use of it #180#

The Historical Method #184#

The Comparative Method #186#

Value of these four Methods respectively #190#

How they may best be applied to Legal Study #193#

Did the Romans suffer from having no general Philosophy of Law? #197#

Merits observable in the Roman Jurists: comparison of their #199#

treatises with those of English lawyers

Summary: The Roman Jurists are philosophical in spirit and in #207#

their practical handling of law

ESSAY XIII

THE RELATIONS OF LAW AND RELIGION 209-246

Apparent Antagonism of Law and Religion #209#

Close connexion of Law and Religion in early states of Society #211#

Differences in this respect between different peoples #215#

The Jews in Roman times: primitive Christianity #216#

Islam; identification of Law with Religion #218#

Illustrations from a Musulman University: the Mosque El Azhar at #219#

Cairo

Description of El Azhar and its Teaching #220#

Course of Instruction: Graduation: Endowments #225#

Resemblances of El Azhar to the European Universities of the #229#

Middle Ages

Causes of the arrested development of Musulman Universities #233#

Nature and consequences of the Musulman identification of Law #234#

and Religion

Identity of State and Church under Islam #240#

How Christianity avoided a similar identification #242#

ESSAY XIV

METHODS OF LAW-MAKING IN ROME AND IN ENGLAND 247-338

Relations of the History of Law to the Constitutional or #247#

Political History of a Country

Law-making Authorities in general #249#

Three main sources of Law: the Ruling Authority, the Magistrate, #253#

and the Legal Profession

The Jurists as makers of Law in earlier times #255#

Changed position of the Jurists under the Empire #257#

Differences between the action of Roman and English Jurists #261#

Roman Treatises compared with English Reports #266#

Magistrates and Judges: in what sense Law-makers #269#

The Praetor at Rome #273#

Nature and Working of the Praetor’s Edict #275#

The English Chancellor #278#

Praetorian Edicts compared with English Case-Law #281#

Further observations on Praetorian methods #287#

Strong and weak points in the English Case-System #289#

Direct Legislation at Rome: its Organs #293#

The Popular Assembly: its method of legislating #297#

Merits of the Roman Statutes #300#

Legislation by the Senate: its characteristics #303#

Direct legislation by the Emperor #308#

Vast powers of the Emperor: his Privy Council #313#

Defects in Imperial legislation #315#

Profusion and inferiority of legislation under the later #318#

Emperors

Direct legislation in England: its history #321#

Advantages of Parliament and Congress for legislation #323#

Strictures commonly passed on English and American Statutes #325#

Difficulties incident to Parliamentary legislation #327#

Reflections suggested by the history of English compared with #332#

that of Roman legislation

Some branches of law better fitted than others to be handled by #333#

direct legislation

ESSAY XV

THE HISTORY OF LEGAL DEVELOPMENT AT ROME AND IN ENGLAND 339-380

Roman and English Law have both been developed in a #339#

comparatively independent way

Conspicuous epochs of legal change at Rome and in England #341#

Forces and influences chiefly active in determining legal #344#

changes

Roman Legal History during the republican period #345#

Effect on the law of the establishment of the imperial autocracy #350#

Rise of Christianity: dissolution of the Empire in the West #352#

The decline in legal learning induced Codification #354#

Political events and External Influences are the chief sources #357#

of changes in Roman Law

Causes of legal change operative in England: the periods of #358#

Henry II and Edward I

The Reformation and the Civil War #361#

The Reform Act of 1832 and the Victorian Epoch #364#

The Law of Family and Inheritance at Rome and the Law of Land in #367#

England

Effects of Territorial Expansion on Roman and on English Law #369#

Economic influences more generally potent in England: political #371#

in Rome

Observations on France and Germany #375#

Private law is the branch least affected by political changes #377#

Legal topics in which further advances may be looked for #379#

ESSAY XVI

MARRIAGE AND DIVORCE IN ROMAN AND IN ENGLISH LAW 381-474

Diversity of the Law of Marriage in different countries #381#

Features generally characteristic of the institution in the #383#

ancient Mediterranean World

Early Marriage law of the Romans #386#

Subordination of the Wife: the ‘Hand Power’ (_Manus_) #387#

Transition to a freer system #389#

Later Marriage Law: nature of the personal relation it creates #392#

Relation of the Consorts as respects Property #395#

General character of the Roman Conception of Marriage: its #400#

freedom

Roman doctrine and practice regarding Divorce #402#

Influence of Christianity on Imperial Legislation #406#

Other Roman rules: prohibited degrees: _Concubinatus_ #409#

Marriage under the Canon Law #416#

The English Law: jurisdiction of the Spiritual Courts #420#

Relations of the Consorts as respects Property under English Law #424#

Amendment of English Matrimonial Law by courts of Equity and by #427#

Legislation

Personal Liberty of the Wife now well established #430#

English law has wavered between different theories of the #431#

relation

Divorce under the Canon Law #433#

History of Divorce in England #436#

Divorce Laws in the United States #439#

Laxity of Procedure in Divorce Cases #441#

Statistics of Divorce in the United States: causes for which it #443#

is granted

Illustrations from the ‘Western Reserve’ counties of Ohio #446#

Divorce in modern European countries #450#

Comparison of the phenomena of Divorce in the Roman and in the #453#

Modern World

Causes now tending to weaken the permanence of the Marriage Tie #457#

Does the growth of Divorce betoken a moral decline? #461#

Influence of the Church and of the Law #464#

Does the English Divorce Law need amendment? #465#

Changes in Theory and in Sentiment regarding Marriage #469#

INAUGURAL LECTURE #475#

VALEDICTORY LECTURE #504#

INDEX #527#

I

THE ROMAN EMPIRE AND THE

BRITISH EMPIRE IN INDIA

In several of the Essays contained in these volumes comparisons are

instituted between Rome and England in points that touch the

constitutions and the laws of these two great imperial States. This

Essay is intended to compare them as conquering and ruling powers,

acquiring and administering dominions outside the original

dwelling-place of their peoples, and impressing upon these dominions

their own type of civilization.

This comparison derives a special interest from a consideration of the

position in which the world finds itself at the beginning of the

twentieth century. The great civilized nations have spread themselves

out so widely, and that with increasing rapidity during the last fifty

years, as to have brought under their dominion or control nearly all the

barbarous or semi-civilized races. Europe—that is to say the five or six

races which we call the European branch of mankind—has annexed the rest

of the earth, extinguishing some races, absorbing others, ruling others

as subjects, and spreading over their native customs and beliefs a layer

of European ideas which will sink deeper and deeper till the old native

life dies out. Thus, while the face of the earth is being changed by the

application of European science, so it seems likely that within a

measurable time European forms of thought and ways of life will come to

prevail everywhere, except possibly in China, whose vast population may

enable her to resist these solvent influences for several generations,

perhaps for several centuries. In this process whose agencies are

migration, conquest, and commerce, England has led the way and has

achieved the most. Russia however, as well as France and Germany, have

annexed vast areas inhabited by backward races. Even the United States

has, by occupying the Hawaiian and the Philippine Islands, entered,

somewhat to her own surprise, on the same path. Thus a new sort of unity

is being created among mankind. This unity is seen in the bringing of

every part of the globe into close relations, both commercial and

political, with every other part. It is seen in the establishment of a

few ‘world languages’ as vehicles of communication between many peoples,

vehicles which carry to them the treasures of literature and science

which the four or five leading nations have gathered. It is seen in the

diffusion of a civilization which is everywhere the same in its material

aspects, and is tolerably uniform even on its intellectual side, since

it teaches men to think on similar lines and to apply similar methods of

scientific inquiry. The process has been going on for some centuries. In

our own day it advances so swiftly that we can almost foresee the time

when it will be complete. It is one of the great events in the history

of the world.

Yet it is not altogether a new thing. A similar process went on in the

ancient world from the time of Alexander the Macedonian to that of

Alaric the Visigoth. The Greek type of civilization, and to some extent

the Greek population also, spread out over the regions around the

eastern Mediterranean and the Euxine. Presently the conquests of Rome

brought all these regions, as well as the western countries as far as

Caledonia, under one government. This produced a uniform type of

civilization which was Greek on the side of thought, of literature, and

of art, Roman on the side of law and institutions. Then came

Christianity which, in giving to all these countries one religion and

one standard of morality, created a still deeper sense of unity among

them. Thus the ancient world, omitting the barbarous North and the

semi-civilized heathen who dwelt beyond the Euphrates, became unified,

the backward races having been raised, at least in the upper strata of

their population, to the level of the more advanced. One government, one

faith, and two languages, were making out of the mass of races and

kingdoms that had existed before the Macedonian conquest, a single

people who were at once a Nation and a World Nation.

The process was not quite complete when it was interrupted by the

political dissolution of the Roman dominion, first through the

immigrations of the Teutonic peoples from the north, then by the

terrible strokes dealt at the already weakened empire by the Arab

conquerors from the south-east. The results that had been attained were

not wholly lost, for Europe clung to the Greco-Romano-Christian

civilization, though in a lowered form and with a diminished sense of

intellectual as well as of political unity. But that civilization was

not able to extend itself further, save by slow degrees over the north

and towards the north-east. Several centuries passed. Then, at first

faintly from the twelfth century onwards, afterwards more swiftly from

the middle of the fifteenth century, when the intellectual impulse given

by the Renaissance began to be followed by the rapid march of

geographical discovery along the coasts of Africa, in America, and in

the further east, the process was resumed. We have watched its later

stages with our own eyes. It embraces a far vaster field than did the

earlier one, the field of the whole earth. As we watch it, we are

naturally led to ask what light the earlier effort of Nature to gather

men together under one type of civilization throws on this later one. As

Rome was the principal agent in the earlier, so has England been in the

later effort. England has sent her language, her commerce, her laws and

institutions forth from herself over an even wider and more populous

area than that whose races were moulded into new forms by the laws and

institutions of Rome. The conditions are, as we shall see, in many

respects different. Yet there is in the parallel enough to make it

instructive for the present, and possibly significant for the future.

The dominions of England beyond the seas are, however, not merely too

locally remote from one another, but also too diverse in their character

to be compared as one whole with the dominions of Rome, which were

contiguous in space, and were all governed on the same system. The

Britannic Empire falls into three territorial groups, the self-governing

colonies, the Crown colonies, and the Indian territories ruled by or

dependent on the sovereign of Britain. Of these three groups, since they

cannot be treated together, being ruled on altogether different

principles, it is one group only that can usefully be selected for

comparison with the Roman Empire. India contains that one group. She is

fitter for our purpose than either of the other two groups, because the

self-governing colonies are not subject territories administered from

England, but new Englands planted far away beyond the oceans,

reproducing, each in its own way, the features of the constitution and

government of the old country, while the Crown colonies are so scattered

and so widely diverse in the character of their inhabitants that they

cannot profitably be dealt with as one body. Jamaica, Cyprus,

Basutoland, Singapore, and Gibraltar, have little in common except their

dependence on Downing Street. Neither set of colonies is sufficiently

like the dominion of Rome to make it possible for us to draw parallels

between them and it. India, however, is a single subject territory, and

India is compact, governed on the same principles and by the same

methods over an area not indeed as wide as that of the Roman Empire but

more populous than the Roman Empire was in its palmiest days. British

India (including Burma) covers about 965,000 square miles, and the

protected States (including Kashmir, but not Nepal and Bhotan), about

600,000 square miles, making a total of (roughly) 1,565,000 square

miles, with a population of nearly 290 millions. The area of the

territories included in the Roman Empire at its greatest extent (when

Dacia and the southern part of what is now Scotland belonged to it) may

have been nearly 2,500,000 square miles. The population of that area is

now, upon a very rough estimate, about 210 millions. What it was in

ancient times we have no data even for guessing, but it must evidently

have been much smaller, possibly not 100 millions, for although large

regions, such as parts of Asia Minor and Tunisia, now almost deserted,

were then filled by a dense industrial population, the increase in the

inhabitants of France and England, for instance, has far more than

compensated this decline.

The Spanish Empire in America as it stood in the sixteenth and

seventeenth centuries was still vaster in area, as is the Russian Empire

in Asia to-day. But the population of Spanish America was extremely

small in comparison with that of the Roman Empire or that of India, and

its organization much looser and less elaborate[1]. Both the Spanish and

the Russian Empires, however, furnish illustrations which we shall have

occasion presently to note.

-----

Footnote 1:

The total area of the Russian Empire exceeds 8,000,000 square miles,

and the population is about 130,000,000.

-----

Of all the dominions which the ancient world saw, it is only that of

Rome that can well be compared with any modern civilized State. The

monarchies of the Assyrian and Egyptian conquerors, like those of the

Seleucid kings and of the Sassanid dynasty in Persia, stood on a far

lower level of culture and administrative efficiency than did the Roman.

Neither was there in the Middle Ages any far stretching dominion fit to

be matched with that of Rome, for the great Ommiad Khalifate and the

Mogul monarchy in India were both of them mere aggregates of

territories, not really unified by any administrative system, while the

authority or suzerainty of the Chinese sovereigns over Turkistan,

Mongolia, and Tibet presents even fewer points of resemblance. So when

we wish to examine the methods and the results of British rule in India

by the light of any other dominion exercised under conditions even

remotely similar, it is to the Roman Empire of the centuries between

Augustus and Honorius that we must go.

When one speaks of conditions even remotely similar one must frankly

admit the existence of an obvious and salient point of contrast. Rome

stood in the middle of her dominions, Britain stands, by the Red Sea

route, six thousand miles from the nearest part of hers. She can reach

them only by water, and she conquered them by troops which had been sent

round the Cape over some thirteen thousand miles of ocean. Here there is

indeed an unlikeness of the utmost significance. Yet, without minimizing

the importance of the contrast, we must remember that Britain can

communicate more quickly with the most distant part of her territories

than Rome could with hers. It takes only twenty-two days to reach any

part of British India (except Kashmir and Upper Assam) from London. But

it took a nimble, or as Herodotus says, a ‘well girt traveller,’ perhaps

forty days from Rome to reach Derr on the Nile, the last fortress in

Nubia where Roman masonry can be seen, or Gori, at the foot of the

Caucasus, also a Roman stronghold, or Old Kilpatrick (near Dumbarton)

where the rampart of Antoninus touches the Clyde; not to add that the

sea part of these journeys might be much longer if the winds were

adverse. News could be carried not much faster than an official could

travel, whereas Britain is, by the electric telegraph, in hourly

communication with every part of India: and the difference in speed

between the movement of an army and that of a traveller was, of course,

greater in ancient times than it is now.

Thus, for the purposes both of war and of administration, England is

better placed than Rome was as respects those outlying parts of the

Roman empire which were most exposed to attack. Dangers are more quickly

known at head quarters; troops can reach the threatened frontier in a

shorter time; errors in policy can be more adequately corrected, because

explanations can be asked, and blundering officials can be more promptly

dismissed. Nevertheless the remoteness of India has had results of the

highest moment in making her relation to England far less close than was

that of Rome to the provinces.

This point will be considered presently. Meantime our comparison may

begin with the points in which the two Empires resemble and illustrate

one another. The first of these turns upon the circumstances of their

respective origins.

Empire is retained, says a famous maxim, by the same arts whereby it was

won. Some Empires have been won easily. Spain acquired hers through the

pertinacity and daring of a Genoese sailor. She had comparatively little

fighting to do, for the only opponents she encountered, who added to

valour some slight tincture of civilization, were the Mexicans.

Russia has met with practically no resistance in occupying her vast

territories in Northern Asia; though she had some sharp tussles with the

nomad Turkmans, and tedious conflicts both with Shamyl and with the

Circassians in the Caucasus. But both Rome and England had to fight long

and fight hard for what they won. The progress of Roman and British

expansion illustrates the remark of Oliver Cromwell that no one goes so

far as he who does not know whither he is going. Neither power set out

with a purpose of conquest, such as Alexander the Great, and perhaps

Cyrus, had planned and carried out before them. Just as Polybius,

writing just after the destruction of Carthage in B.C. 146, already

perceived that Rome was, by the strength of her government and the

character of her people, destined to be the dominant power of the

civilized world, so it was prophesied immediately after the first

victories of Clive that the English would come to be the masters of all

India. Each nation was drawn on by finding that one conquest led almost

inevitably to another because restless border tribes had to be subdued,

because formidable neighbours seemed to endanger the safety of

subjugated but often discontented provinces, because allies inferior in

strength passed gradually into the position first of dependants and then

of subjects.

The Romans however, though they did not start out with the notion of

conquering even Italy, much less the Mediterranean world, came to enjoy

fighting for its own sake, and were content with slight pretexts for it.

For several centuries they were always more or less at war somewhere.

The English went to India as traders, with no intention of fighting

anybody, and were led into the acquisition of territory partly in order

to recoup themselves for the expensive efforts they had made to support

their first allies, partly that they might get revenue for the East

India Company’s shareholders, partly in order to counterwork the schemes

of the French, who were at once their enemies in Europe and their rivals

in the East. One may find a not too fanciful analogy to the policy of

the English in the days of Clive, when they were drawn further and

further into Indian conflicts by their efforts to check the enterprises

of Dupleix and Lally, in the policy of the Romans when they entered

Sicily to prevent Carthage from establishing her control over it. In

both cases an effort which seemed self-protective led to a long series

of wars and annexations.

Rome did not march so swiftly from conquest to conquest as did England.

Not to speak of the two centuries during which she was making herself

supreme in Italy, she began to conquer outside its limits from the

opening of the First Punic War in B.C. 264, and did not acquire Egypt

till B.C. 30, and South Britain till A.D. 43-85[2]. Her Eastern

conquests were all the easier because Alexander the Great’s victories,

and the wars waged by his successors, had broken up and denationalized

the East, much as the Mogul conquerors afterwards paved the way for the

English in India. England’s first territorial gains were won at Plassy

in A.D. 1757[3]: her latest acquisition was the occupation of Mandalay

in 1885. Her work was done in a century and a quarter, while that of

Rome took fully three centuries. But England had two great advantages.

Her antagonists were immeasurably inferior to her in arms as well as in

discipline. As early as A.D. 1672 the great Leibnitz had in a letter to

Lewis XIV pointed out the weakness of the Mogul Empire; and about the

same time Bernier, a French physician resident at the Court of

Aurungzeb, declared that 20,000 French troops under Condé or Turenne

could conquer all India[4]. A small European force, and even a small

native force drilled and led by Europeans, was as capable of routing

huge Asiatic armies as the army of Alexander had proved capable of

overthrowing the immensely more numerous hosts of Darius Codomannus.

Moreover, the moment when the English appeared on the scene was

opportune. The splendid Empire of Akbar was crumbling to pieces. The

Mahratta confederacy had attained great military power, but at the

battle of Paniput, in 1761, it received from the Afghans under Ahmed

Shah Durani a terrific blow which for the time arrested its conquests.

Furthermore, India, as a whole, was divided into numerous

principalities, the feeblest of which lay on the coasts of the Bay of

Bengal. These principalities were frequently at war with one another,

and glad to obtain European aid in their strife. And England had a third

advantage in the fact that she encountered the weakest of her

antagonists first. Had she, in those early days when her forces were

slender, been opposed by the valour of Marathas or Sikhs, instead of by

the feeble Bengalis and Madrassis, her ambitions might have been nipped

in the bud. When she found herself confronted by these formidable foes

she had already gained experience and had formed a strong native army.

But when the Romans strove against the Achaean League and Macedon they

had to fight troops all but equal to themselves. When Carthage was their

antagonist, they found in Hamilcar a commander equal, in Hannibal a

commander superior to any one they could send against him. These earlier

struggles so trained Rome to victory that her later conquests were made

more easily. The triumphs of the century before and the century after

Julius Caesar were won either over Asiatics, who had discipline but

seldom valour, or over Gauls, Iberians, Germans, and Caledonians, who

had valour but not discipline. Occasional reverses were due to the

imprudence of a general, or to an extreme disparity of forces; for, like

the English, the Romans did not hesitate to meet greatly superior

numbers. The defeat of Crassus by the Parthians and the catastrophe

which befell Varus in the forests of Paderborn find a parallel in the

disastrous retreat of the English army from Cabul in 1843. Except on

such rare occasions the supremacy of Roman arms was never seriously

challenged, nor was any great calamity suffered till the barbarian

irruption into Italy in the reign of Marcus Aurelius. A still graver

omen for the future was the overthrow of Valerian by the Persians in

A.D. 260. The Persians were inferior in the arts of civilization and

probably in discipline: but the composition of the Roman armies was no

longer what it had been three centuries earlier, for the peasantry of

Italy, which had formed the kernel of their strength, were no longer

available. As the provincial subjects became less and less warlike, men

from beyond the frontier were enrolled, latterly in bodies under their

native chiefs—Germans, or Arabs, or, in still later days, Huns—just as

the native army in British India, which has now become far more peaceful

than it was a century ago, is recruited by Pathans and Ghurkas from the

hills outside British territory as well as by the most warlike among the

Indian subjects of the Crown. The danger of the practice is obvious.

Rome was driven to it for want of Roman fighting-men[5]. England guards

against its risks by having a considerable force of British troops

alongside her native army.

-----

Footnote 2:

Dacia was taken by Trajan in A.D. 107, and lost in A.D. 251.

Mesopotamia and Arabia Petraea were annexed by Trajan about the same

time, but the former was renounced so soon afterwards that its

conquest can hardly be considered a part of the regular process of

expansion.

Footnote 3:

Territorial authority may be said to date from the grant of the Diwani

in 1765.

Footnote 4:

See the admirably clear and thoughtful book of Sir A. C. Lyall, _Rise

of British Dominion in India_, pp. 52 and 126.

Footnote 5:

And indeed the employment of these barbarians to resist the outer

barbarians probably prolonged the life of the Empire.

-----

Studies in history and jurisprudence, volume 1 (of 2) · 第 1 / 40 段