Transcriber’s Note:
Сноски были перенумерованы для обеспечения уникальности, собраны в конце текста и снабжены ссылками для удобства использования.
Оглавление включает ссылки на эссе, вошедшие во второй том. Темы в оглавлении не обязательно совпадают с заголовками разделов в тексте.
Незначительные ошибки, допущенные типографией, были исправлены. Подробную информацию об устранении любых текстовых проблем, возникших при подготовке издания, см. в примечании составителя в конце текста.
Все исправления отмечены подчеркиванием. При наведении курсора на исправление во всплывающем окне отображается исходный текст.
Все исправления оформлены в виде гиперссылок, которые направляют читателя к соответствующей записи в таблице исправлений в примечании в конце текста.
Пустая обложка была изменена: на нее добавлена основная информация с титульного листа, и в таком виде она переведена в общественное достояние.
ИССЛЕДОВАНИЯ ПО ИСТОРИИ И ЮРИСПРУДЕНЦИИ
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 II
OXFORD
AT THE CLARENDON PRESS
1901
OXFORD
PRINTED AT THE CLARENDON PRESS
BY HORACE HART, M.A.
PRINTER TO THE UNIVERSITY
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 advanced races 1
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 territories 4
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 Empire 8
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 frontiers 14
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 India 35
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 religious feeling in ancient and in modern world 51
Character of the conquerors as a source of their strength 58
Contrasts between the two Empires: geographical position of the ruling race 61
Fusion of Romans and provincials: no similar fusion of English and Indians 62
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 India 74
Retroactive influences of the provinces on Rome and of India on Britain 76
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 general 154
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 Continent 230
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 Constitutions 255-311
The influence of aggregative and disjunctive forces on political societies 255
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 may be opposed 269
How Constitutions may use the existing Centripetal and Centrifugal forces 271
Illustrations from Commerce, Law and Religion 274
Instances of the troubles caused by Racial or Religious sentiment 281
Methods by which Constitutions may disarm or regulate the centrifugal forces: illustrations 286
Difficulties due to differences of colour in races 291
How the Constitutions of the United States and Switzerland have acted 296
The Centripetal force generally, but not always, dominant in European history 300
Effects of Conquest and of Dynastic Succession 303
Probable future strength of the centrifugal and centripetal forces respectively 307
Present tendency to the enlargement or consolidation of States is not necessarily permanent 309
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 the Fair 348
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 slightly foreseen 378
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 present value 390
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 of the United States 458
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 Canada 487
Two leading types of Federal Government 489
Distribution of powers between the Nation and the States in the Australian Constitution 491
Position of the Australian States under the Constitution 494
Differences from the Federal systems of the United States and of Canada 498
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 yield to Australian sentiment 509
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 the United States 527
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 United States 532
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 foreign powers 550
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 theory of Obedience 44
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 not concerned with obedience 56
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 political power 73
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 really distinct 94
Rights in the moral sphere of Sovereignty de iure and Sovereignty de facto 98
Sovereignty in International Relations 101
Sovereignty in a Federation 104
Conclusion: Theoretical Controversies regarding Sovereignty have mostly had their origin in current politics 108
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 Gentium 147
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 Philosophy necessary or serviceable? 172
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 treatises with those of English lawyers 199
Summary: The Roman Jurists are philosophical in spirit and in their practical handling of law 207
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 Cairo 219
Description of El Azhar and its Teaching 220
Course of Instruction: Graduation: Endowments 225
Resemblances of El Azhar to the European Universities of the Middle Ages 229
Causes of the arrested development of Musulman Universities 233
Nature and consequences of the Musulman identification of Law and Religion 234
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 Political History of a Country 247
Law-making Authorities in general 249
Three main sources of Law: the Ruling Authority, the Magistrate, and the Legal Profession 253
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 Emperors 318
Direct legislation in England: its history 321
Advantages of Parliament and Congress for legislation 323
Strictures commonly passed on English and Amercan Statutes 325
Difficulties incident to Parliamentary legislation 327
Reflections suggested by the history of English compared with that of Roman legislation 332
Some branches of law better fitted than others to be handled by direct legislation 333
ESSAY XV
The History of Legal Development at Rome and in England 339-380
Roman and English Law have both been developed in a comparatively independent way 339