only do they cramp the teacher, practically debarring him from some
topics; but they are so arranged as to prevent the Law School from
receiving, with some few exceptions, men of the first intellectual rank.
The ablest and best prepared of the students naturally, and rightly,
enter the classical school, and find themselves obliged, when they have
obtained their degree in it at the age of twenty-three, to quit the
University for the work of life. Do not suppose that I for a moment
desire to draw such men away from the classical school. No one who has
himself passed through the training of that school will doubt its
superior value to even the best-arranged Law School, as a part of the
education needed to make a good scholar, a good citizen, and a good
Christian. What we want is such a revision of our arrangements as will
bring men to the University somewhat younger, and will enable those who
have obtained honours in the school of Literae Humaniores, and intend to
follow the legal profession, to pass into the Law School when they have
taken their B.A. classical honours, and devote at least a year (though
in the Law Schools of America two years at least are thought needful) to
professional studies. At present Oxford is in the absurd position of
practically excluding from the legal instruction which the University
provides the most promising of her students, the very men who are best
fitted to turn it to account in their subsequent career. They spend at
school a year which they ought to spend at college, and they spin out
their general studies so long that they are unable to obtain that
scientific training in the future work of their life which the
University has been at such pains to set before them. To find time and
make provision in our curriculum for professional as well as general
literary studies was one of the chief problems which the Commissioners
of 1878-81 ought to have dealt with. Their failure throws back upon the
University herself the duty of reform. Other, though less material,
causes may be found in the undue prominence which examinations have been
suffered to take in the system, and in the very unsatisfactory relations
between the teaching provided by the University and that which the
Colleges supply, relations which involve much overlapping and a serious
waste of teaching power.
I need not pursue this topic into its details. Let it suffice to remark
that it is not merely for the sake of the University that one would
desire to see her influence upon legal studies extended. Over and above
that general liberal education which it is her main business to give,
and on which neither law nor any other special study must be suffered to
infringe, it is her duty to handle professional studies in a wide and
philosophic spirit, to raise them above mere gainful arts into the
domain of science, to draw to herself the ablest of those who are
entering these professions, the men from whom each profession receives
its tone and temper. You all know how much the practical sciences, such
as medicine, chemistry, and engineering, have gained by being closely
associated with the pursuit of abstract science. No less true is it that
men who follow these occupations, and those who devote themselves to the
bar or to the church, profit by their association with literary and
scientific culture and its central home here, feeling themselves members
of a great learned corporation, and carrying away with them the
influence of the ideals it has taught them to cherish. It is upon the
clergy that this influence has hitherto told most; nor has anything done
more to keep the clergy of the Church of England from becoming a caste
and to stimulate their activity in those fields of philosophic and
historical research wherein they have won so much distinction. One would
like to see the University lay the same hold on the other great
professions likewise.
This, however, is only one of the points in which observers who have
watched and studied Oxford from without as well as from within are
disposed to think that she does not fully comprehend, does not at any
rate fully use, her unrivalled opportunities. I touch upon a delicate
point. Yet as Homer occasionally invests a dying warrior with prophetic
gifts, one who is on the eve of departure may be permitted to give
expression to some of the aspirations that have long filled his mind
when he has thought of what Oxford might achieve. She seems at present
to be too exclusively occupied not only with the giving of a general
liberal education (to the disparagement of professional studies), but
also with her regular curriculum and those who follow it, to the neglect
of those others, now comparatively few, but capable of almost indefinite
increase, who desire not so much to follow a regular course or secure a
degree as to obtain special training in some department of learning.
Have we not, in our English love of competition and our tendency to
reduce everything to a palpable concrete result, allowed the examination
system to grow too powerful, till it has become the master instead of
the servant of teaching and has distracted our attention from the
primary duty of a University? It is not any revolutionary change one
would desire to see. Such changes are seldom either easy or salutary;
while as regards the college system, I find something to regret in those
inroads upon the social life and corporate character of the colleges for
which the last Commission is responsible. The reform chiefly needed is a
reform that would neither injure the Colleges nor affect the character
of the University as a seat of general liberal education. Rather let us
return to the older conception of a University as a place to which every
one who desired instruction might come, knowing that as Oxford took all
knowledge for her province she would provide him with whatever
instruction he required. The abundance and the cheapness of literature
have not diminished, perhaps they have even stimulated, the demand for
the best oral teaching, while the recent establishment of so many
prosperous colleges in the great towns, the spread of University
Extension lectures, the growth of Science schools, have immensely
increased the number of young men who would come hither for a year or
more to obtain such teaching were they sure of finding it. What is the
present position? There are professors, many of whom, eminent as they
are, cannot secure proper classes, because the undergraduates are
occupied, under the guidance of the college teachers, in preparing for
degree examinations. For the teaching of some important branches,
especially in natural and in economic science, no adequate staff is
provided. England has been outstripped not only by Germany but also by
the United States, in the provision of what the Americans call
Post-Graduate courses, a provision which even the present poverty of the
University need not hinder her from making, were but a reasonable system
of fees introduced and revenues husbanded that are now unprofitably
spent. Both the new University teachers who might be created and the
present professors to whom the existing system refuses hearers would be
only too happy to give those courses, if the students could be found and
the requisite arrangements made. The men who would attend the courses
are to be found, some of them within, many more without the University.
Those without do not come because the courses have not been offered: and
to provide for both sets, existing arrangements must be remodelled, for
these contemplate only the normal undergraduate who arrives at nineteen,
is examined, and departs at twenty-two or twenty-three, and take no
account of those who desire neither examinations nor degrees, but simply
to perfect themselves in some department of science or learning. Were
such courses offered, and were those antiquated arrangements altered,
you might soon expect a sensible afflux of students, not from England
only, but from far beyond the bounds of England.
Perhaps those who dwell in Oxford have scarcely yet realized the
magnificent position this University holds, as not only the oldest and
the most externally beautiful and sumptuous place of education in the
English-speaking world, but as a spot whose name and fame exert a
wonderful power over the imagination of the English peoples beyond the
sea, many of whose youth would gladly flock hither were they encouraged
to do so by arrangements suited to their needs. For those among the
studious youth of the United States and Canada who desire to follow out
their special studies, I can safely say from what I have seen of Canada
and the United States that did Oxford and Cambridge provide what the
Universities of Germany provide, and were it as easy to enter here and
choose the subject one seeks to study as it is in the Universities of
Germany, it is to Oxford and Cambridge rather than to Germany that most
of them would resort: nor could the value be overestimated of such a tie
as their membership here would create between the ancient mother and the
scattered children, soon to be stronger than their mother, but still
looking to her as the hallowed well-spring of their life.
It is always sad to part from work with which the best years of one’s
life have been largely occupied: and to me this common regret is
deepened by the associations, full of antique dignity, of the office I
am resigning and by the nature of the work which has been a source of
unfailing pleasure. And my regret at parting is the keener because I
part from the place where I have known so many of those brilliant
figures whom the last twenty years have taken from us, one of them
happily still in the world, though long since lost to the University
which his splendid powers adorned,—I mean Mr. Goldwin Smith,—the rest
now living only in our recollection. Vividly there come back to me as I
stand by the open gate, the kindly wisdom of the late President of
Corpus Christi[254], most loveable of men; the luminous and fertile
intellect of Sir Henry Maine[255]; the masculine force and high sense of
public duty of Thomas Green[256]; the penetration and learning, not more
wide than exact, of Mark Pattison[257]; the fine taste and golden lips
of Henry Liddon; the warm heart and vehement discourse and noble love of
truth of Edward Freeman[258]; the fire, the courage, the eagerness, the
zeal in all good causes of one whose university lectures and sermons
were so powerful a stimulus to many of us in our undergraduate days,
Arthur Stanley[259]. These men had some sharp contests in their lives,
but they are all alike enshrined in our memory as men of whom the Oxford
of those days may well be proud.
-----
Footnote 254:
Dr. John Matthias Wilson, formerly Professor of Moral Philosophy.
Footnote 255:
Formerly Corpus Professor of Jurisprudence.
Footnote 256:
Formerly Professor of Moral Philosophy.
Footnote 257:
Formerly Rector of Lincoln College.
Footnote 258:
Formerly Regius Professor of Modern History.
Footnote 259:
Formerly Regius Professor of Ecclesiastical History, afterwards Dean
of Westminster.
-----
Nor must a word of grateful farewell be omitted to those colleagues in
the Faculty of Law—among whom I will venture to reckon the Warden of All
Souls—whose thoughts and plans it has been a constant pleasure to share,
and with whom I have lived these many years in a friendship which no
cloud of personal disagreement, nor any divergence of political
opinions, has ever for a moment darkened. With the regret of parting I
carry away the delightful recollection of those years, and a sense which
time will not diminish of the honour it has been to be permitted so long
to serve this great University, the oldest and most venerated of the
dwellings of learning in Britain, dear to us not only because our
brightest years were spent among her towers and groves, but still more
because in her, as now in maturer life we scan a sometimes troubled
horizon to watch for signs of storm, we see an institution which has
stood unshaken while dynasties have fallen and constitutions have been
changed, and which still and always, placed above the shock of party
conflicts and renewing her youth in fresh activities from age to age,
embodies in visible and stately form the unbroken continuity of the
intellectual life of our country, and still commands, as fully as ever
in the past, the loving devotion of her children. [Blank Page]
INDEX
Abolitionists, in America, i. 414.
Aborigines, in Australia, i. 549.
Achaean League, i. 204.
Adoption, by Indian princes, i. 37;
in Indian law, i. 124;
by Roman emperors, ii. 482.
Adultery, a crime in Indian Penal Code, i. 126;
in Roman law, ii. 403.
Aeschylus, quoted, i. 167.
Afghanistan, i. 20.
Agricola, i. 15; ii. 405.
Alabama case, i. 416.
Alarich II, laws of, ii. 356, 483.
Algeria, i. 293.
Alsace, annexation of, i. 305.
Althing, or general assembly, in Iceland, i. 322-332, 347, 354.
Althusius, on sovereignty, ii. 85.
Amendment of constitution, i. 151, 205-217;
in Australia, i. 523-525.
America. _See_ United States.
_American Commonwealth_, referred to, i. 201, 211, 377; ii. 41.
Analytic school of jurisprudence, ii. 178-184.
Anarchism, ii. 28, 170.
Areopagus, i. 92.
Argentina, constitution of, i. 212, 253.
Aristocracy and flexible constitutions, i. 178-185.
Aristotle, i. 155, 430; ii. 2, 125, 317, 484.
Armenia, i. 20.
Army of Rome and India, i. 17, 18, 45.
Asiatic peoples, ii. 16-18.
Augustus, ii. 26, 61, 67, 68, 257, 289, 404, 405.
Austin criticized, ii. 89-97, 127, 180-184.
Australia: constitution of the Commonwealth, i. 468-553;
movement for federation, 471-482;
conditions favouring federation, 483-489;
character of federation, 489-491;
distribution of powers between Commonwealth and States, 491-494;
position of States under constitution, 494-498;
differences from United States and Canada, 498-501;
few restrictions on powers of Commonwealth, 501-504;
the legislature, 504-507;
the executive, 508;
the judiciary, 508-512;
dependence of executive upon legislature, 513-516;
provisions against deadlocks, 516-518;
relations of the two Houses, 518-521;
miscellaneous provisions, 521-523;
amendment of constitution, 523-525;
relations of Commonwealth to British crown, 525, 526;
comparison with United States and Canada, 527-530;
general observations, 531-535;
democratic character, 535-539;
political parties, 539-541;
future political issues, 542-546;
possible entrance of new States, 547-551;
future relations to Britain, 551-553.
Austro-Hungary, constitution of, i. 203, 284, 470; ii. 91, 92;
divorce in, ii. 450, 451.
Bacon, i. 261; ii. 96, 480.
Baker, Newton D., ii. 446.
Banns, publication of, ii. 417.
_Basilica_, of Leo, ii. 341, 378.
Belgium, divorce in, ii. 450, 451.
Bentham, criticized, ii. 3, 44-48, 88-97, 127, 179-184.
Bernier, on Mogul empire, i. 10.
Betrothal, in Roman law, ii. 393.
Beyrut, law school of, ii. 264, 320.
Bills, in House of Commons, ii. 325, 499.
Bishops, in Iceland, i. 327.
Bismarck, ii. 25.
Blackstone, i. 118; ii. 77, 166, 181, 265, 427, 430, 491.
Blood feuds, i. 321; ii. 212.
Bodin, on sovereignty, ii. 84, 85.
Bologna, law school of, i. 105; ii. 219, 231.
Bosnia, ii. 102.
Boss system in America, i. 417; ii. 30.
Bowen, Lord, ii. 199, 266.
Bracton, ii. 261, 332.
Brand, President, i. 463.
Breach of promise, action for, ii. 394.
Brehon law, i. 111; ii. 188.
Bulgaria, constitution of, i. 210, 211; ii. 102.
Cabinet government, in England, i. 177;
under the Australian constitution, i. 513-516.
Cairns, Lord, ii. 199, 266.
Cairo, university of, ii. 219-231.
Calhoun, i. 395; ii. 105.
Canada, constitution, i. 197, 198, 203;
compared with Australian, i. 470, 478, 488, 492, 495, 497, 498-501,
527-530;
law of divorce, ii. 443.
Canning, Lord, i. 37.
Canon Law, growth of, i. 105, 106; ii. 245;
regulation of marriage and divorce by, ii. 414, 416-420, 433-435.
Cape Colony, i. 432.
Capital, of United States, i. 406;
of Australian Commonwealth, i. 523.
Caracalla, edict of, i. 48, 99; ii. 147, 354.
Case law, compared with praetorian edict, ii. 281-293.
Caste, i. 68.
Catullus, i. 27, 53; ii. 393.
Caucus, the, i. 177.
Celibacy, discouragement of, at Rome, ii. 401, 409;
of clergy, ii. 414.
Centripetal and centrifugal forces, their action on political
constitutions, i. 255-311;
interest and sympathy, 263-265;
race and religion, 265-267;
how constitutions may utilize centripetal forces, 271-281;
and how modify centrifugal forces, 281-295;
illustrations from United States, 295-298;
probable results in the future, 300-311;
effect of conquest and family succession, 303-307.
Chancellor, the Lord, as builder of equity, ii. 164-166;
as law-maker, ii. 271, 279-281.
Character, of conquering races, i. 59-61.
Chartism, i. 175, 238.
Chastisement of wife by husband, ii. 426.
Christianity, unifying influence of, i. 3;
persecution of, i. 53;
in India, i. 69;
introduction into Iceland, i. 350, 351;
as affecting growth of law, ii. 242-246, 352;
influence on Roman law of divorce, ii. 406-409.
Church, identified with State, ii. 240.
Cicero, against Verres, i. 27, 89, 94; ii. 275;
on the Law of Nature, ii. 133-138, 173;
on the Twelve Tables, ii. 347, 494;
divorced his wife, ii. 404.
Citizenship under Roman empire, i. 48, 90.
Clarendon, Constitutions of, ii. 360.
Claudian, quoted, i. 75.
Claudius, Emperor, ii. 411.
Climate, effect of, on Roman and Indian empires, i. 63, 64.
Clive, i. 9, 13, 28, 60.
_Codicilli_, ii. 289.
Codification, of Roman law, i. 104;
of French law, i. 107, 388; ii. 376;
of German law, i. 108; ii. 377, 479;
of Indian law, i. 121-133;
of Icelandic law, i. 341-343.
_Coemptio_, Roman marriage by, ii. 388-390.
Coke, Lord, ii. 199, 260.
Collectivism, i. 309.
Colonies, of England, i. 4.
Colour of Race, effect of, in Roman and Indian empires, i. 64-67,
291-294.
_Comitia_, ii. 297-303.
Commands, laws as, i. 334; ii. 3, 44-48, 194.
Committee stage, in English legislation, ii. 328.
Commonwealth. _See_ Australia.
Comparative method of jurisprudence, ii. 170, 186-190.
Concubinage, ii. 413.
_Confarreatio_, Roman marriage by, ii. 388-390.
Congress, as a legislative body, ii. 323-326.
Conquest, formation of empire by, i. 8-16;
extension of Roman law by, i. 88; ii. 78;
effect of, as a centripetal force, i. 303-307.
_Consistorium_, ii. 314.
Consolidation: of law in India, i. 131;
of law in America, ii. 326;
of English law, ii. 331, 499.
Constantinople, law school of, ii. 264, 320.
_Constituta_, of Roman emperors, i. 99; ii. 311.
Constitutions: of Rome and England, i. 145-150;
proposed new classification, 150-159;
origin of flexible, 159-162;
strength and weakness of flexible, 162-178;
aristocracies, 178-185;
influence on the mind of a nation, 185-193;
capacity for territorial expansion, 193-196;
origin of rigid, 196-205;
enactment and amendment of rigid, 205-217;
definiteness of rigid, 217-221;
stability of rigid, 221-228;
interpretation of rigid, 228-234;
democracies, 234-242;
future of flexible and rigid, 242-249;
possibility of new types, 249-252;
classes of governments, 253, 254.
Contract code, in India, i. 128-130.
Contractualists, the, ii. 1-5, 163.
Convention, for amendment of constitution, i. 211, 213, 216, 476.
Cousins, intermarriage of, ii. 411.
Criminal law, i. 92; ii. 334.
Croatia, i. 268.
Cromwell, Oliver, i. 8, 200; ii. 60, 68.
Crown colonies, i. 5.
Custom: source of Icelandic law, i. 334-337;
of law generally, ii. 211, 251, 268, 334.
Customs duties, in Australian constitution, i. 522.
Dacoity, i. 25.
Dante, i. 379;
quoted, ii. 80, 158, 310.
Dartmouth college case, i. 496.
Darwin, i. 366; ii. 150.
Deadlocks, provisions against, in Australian constitution, i. 516-521.
Deceased wife’s sister, marriage with, under Roman law, ii. 412.
Decemviral legislation, at Rome, ii. 341.
Declaration of Independence, ii. 35, 139, 163.
Deference, as ground of political obedience, ii. 9, 14.
Delegations, in Austro-Hungary, ii. 92.
Democracy and rigid constitutions, i. 234-242.
Democratic character of Australian constitution, i. 535-539.
Demosthenes, quoted, ii. 126, 158.
Denmark, acquisition of Iceland by, i. 357;
constitution of, ii. 61, 63;
divorce in, ii. 450.
Dicey, Prof. E., i. 157; ii. 267, 506.
Dictator, i. 170; ii. 55.
Diet, of empire, i. 323, 355, 376.
Diocletian, ii. 319, 342, 352.
Divorce: in Ireland, ii. 370, 382, 438;
in Scotland, 382, 435-438;
in Roman law, 402-406;
influence of Christianity on Roman law, 406-408;
under canon law, 433-435;
later law in England and Scotland, 435-438;
laws in United States, 439-443;
American statistics, 443-449;
in modern European countries, 450-453;
connexion with conjugal infidelity, 461-463;
does English law need amendment? 465-469.
_Donatio propter nuptias_, ii. 398, 407, 432.
_Dos_, in Roman law, ii. 397, 406, 432.
Dower, ii. 420, 427, 432.
Drayton, quoted, ii. 150.
_Droit Naturel_, ii. 169, 173-178.
Duck, Arthur, ii. 160, 477.
Dutch law, in South Africa, i. 86, 109, 439.
Dutch republics, in South Africa, i. 430-467.
Ecclesia, of Greek cities, i. 183; ii. 297.
Ecclesiastical courts, ii. 420, 421, 435.
Edict of the praetor, i. 91, 92; ii. 275, 282-285, 291.
_Edictum perpetuum_, ii. 288.
Education, in Roman and Indian empires, i. 57, 73.
Edward I, legislation of, ii. 360.
Egypt, political position of, i. 35, 70, 102, 267, 282; ii. 61, 103.
El Azhar, mosque and university, ii. 219-231.
Elegance, in Roman law, ii. 198, 495.
Emancipation of women, ii. 401, 458-460, 470.
Empedocles, quoted, ii. 126.
Emperor: as sovereign in middle ages, ii. 80;
as source of law at Rome, ii. 308-321.
England: Roman empire compared with British empire in India, i. 1-84;
extension of English law throughout the world, i. 85-144;
the constitution, i. 145-147, 152, 155-158, 165, 168, 171, 172, 174,
183, 191, 192, 194, 206, 230, 244-249, 272;
sovereignty of Parliament, ii. 57, 61, 68, 90, 109;
conception of equity as affected by law of nature, ii. 164-167;
analytic school of jurisprudence, ii. 178-184;
want of elegance in English law, ii. 199;
legal writers as sources of law, ii. 260-269;
judges as sources of law, ii. 270-272, 278-281;
case law, ii. 281-291;
legislation by Parliament, ii. 321-331;
five epochs of legal change, ii. 343;
outline of progress of legal changes, ii. 358-366;
comparison with Roman law, ii. 367-375;
private law least affected, ii. 377-380;
law of marriage, ii. 419-424;
property relations of consorts, 424-427;
gradual amendment of law, 423-427, 468, 499;
law of divorce, 433-438;
does law of divorce need amendment? 465-469.
English language in India, i. 74.
Ennius, quoted, ii. 181.
Epicurus, ii. 127.
Equality theory of marriage, ii. 431-433, 470.
Equity, in Roman law, ii. 143;
in English law, ii. 164;
in Indian law, ii. 166;
as amending law of wife’s property, ii. 427, 428.
Erastianism, ii. 210.
Eurasians, in India, i. 66, 69, 136.
Euripides, quoted, ii. 384.
European influence over rest of world, i. 1.
Evidence Code, in India, i. 128.
Executive, the: at Rome, i. 191, 192;
in Australian constitution, i. 508, 513.
Executive Council, the: in the Orange Free State, i. 438, 457, 459,
464;
in the South African Republic, i. 445, 457, 459.
Family, its influence on Roman law, ii. 367;
as religious organism, ii. 211.
Family succession: effect of, as a centripetal force, i. 303-307.
Fathers of the Church, ii. 244, 484.
Fathers of the Republic, i. 365, 381.
Fear, as ground of political obedience, ii. 1-5, 12-14, 20.
Federal courts: in the United States, i. 399, 419, 420;
in Australia, i. 508-512.
_Federalist, The_, i. 360, 366-374.
Federation: types of, i. 469, 470, 489-492;
sovereignty in, ii. 104-108;
of British empire, i. 245-249, 553.
Fetwa, ii. 241.
Finance: in Roman and Indian empires, i. 37-42;
in Australian constitution, i. 478, 522.
Finland, autonomy of, i. 288.
Flag, the, in the United States, i. 298, 418.
Flexible and rigid constitutions, i. 145-252;
is the Transvaal constitution flexible? i. 449-451.
Folk Mot, i. 161, 162, 316, 353, 434; ii. 297.
_Formulae_, ii. 334.
France: constitution of the republic, i. 152, 202;
legal history, ii. 375-377;
divorce in, ii. 450, 451.
Franks, the, ii. 22.
Free State. _See_ Orange Free State.
Free Trade, ii. 26.
French law, codification of, i. 107.
French Republic, constitution of, i. 152, 214.
Frontiers, of Roman and Indian empires, i. 14-20.
Fundamental statutes, i. 206.
Fusion: of races in Roman empire, i. 62, 74;
of Roman and provincial law, i. 96-98.
Future life, belief in, ii. 459.
Fylki, in Norway, i. 353.
Gaius, ii. 142, 145, 153, 260, 264, 296, 304, 354, 390, 392, 512.
Gardiner, S. R., i. 200.
_Gens_, meaning of, ii. 131.
Gentili, Alberico, ii. 167, 507.
German empire, constitution of, i. 196, 204, 215, 470;
divorce in, ii. 450, 451.
German law, codification of, i. 108;
history of, ii. 375-377.
Ghosts, legal ejectment of, in Iceland, i. 345, 346.
Gierke, Prof. Otto, ii. 85, 159.
Gilman, President, i. 382.
Glanvill, ii. 261, 332.
Goethe, quoted, ii. 160.
Goði, or priest-chieftain, in Iceland, i. 317-322, 325, 326, 332, 344,
352-354.
Gortyn, laws of, i. 89.
Grace, opposed to law, ii. 209.
Graduation, at El Azhar, ii. 225.
Grammar, in Musulman university, ii. 224, 225.
Gratian, ii. 157.
Greece, constitution of, i. 209.
Greek Civilization, spread of, in ancient world, i. 2.
Greek law, i. 89, 102; ii. 145, 202.
Greenland, colonized from Iceland, i. 333.
Grondwet, the: of the South African Republic, i. 442-447;
was it a rigid constitution? i. 449-455.
Grotius, ii. 167, 168.
Group, defined, i. 257;
parliamentary, i. 541.
Growth, phenomena of, ii. 114.
Grueber, Dr. E., ii. 506.
Gunnlaug’s Saga, i. 348, 349.
Habit, as governing action, ii. 14, 45, 65.