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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.
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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.
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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.
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