ABSTRACT
THE Teutonic Codes, including those of our AngloSaxon ancestors, are the only bodies of archaic secular law which have come down to us in such a state that we can form an exact notion of their original dimensions. Although the extant fragments of Roman and Hellenic codes suffice to prove to us their general character, there does not remain enough of them for us to be quite sure of their precise magnitude or of the proportion of their parts to each other. But still on the whole all the known collections of ancient law are characterised by a feature which broadly distinguishes them from systems of mature jurisprudence. The proportion of criminal to civil law is exceedingly different. In the German codes, the civil part of the law has trifling dimensions as compared with the criminal. The traditions which speak of the sanguinary penalties inflicted by the code of Draco seem to indicate that it had the same characteristic. In the Twelve Tables alone, produced by a society of greater legal genius and at first of gentler manners, the civil law has something like its modern precedence; but the relative amount of space given
to the modes of redressing wrong, though not enormous, appears to have been large. It may be laid down, I think, that the more archaic the code, the fuller and the minuter is its penal legislation. The phenomenon has often been observed, and has been explained, no doubt to a great extent correctly, by the violence habitual to the communities which for the first time reduced their laws to writing. The legislator, it is said, proportioned the divisions of his work to the frequency of a certain class of incidents in barbarian life. I imagine, however, that this account is not quite complete. It should be recollected that the comparative barrenness of civil law in archaic collections is consistent with those other characteristics of ancient jurisprudence which have been discussed in this treatise. Nine-tenths of the civil part of the law practised by civilised societies are made up of the Law of Persons, of the Law of Property and of Inheritance, and of the Law of Contract. But it is plain that all these provinces of jurisprude11ce must shrink within narrower boundaries, the nearer we make our approaches to the infancy of social brotherhood. The Law of Persons, which is nothing else than the Law of' Status, will be restricted to the scantiest limits as long as all forms of status are merged in common subjection to Paternal Power, as long as the Wife has no rights against her Husband, the Son none against his
Father,andtheinfantWardnoneagainsttheAgnateswhoarehisGuardians.Similarly,therules relatingtoPropertyandSuccessioncanneverbe plentiful,solongaslandandgoodsdevolvewithin thefamily,and,ifdistributedatall,aredistributed insideitscircle.Butthegreatestgapinancient civillawwillalwaysbecausedbytheabsenceof Contract,whichsomearchaiccodesdonotmentionat all,whileotherssignificantlyattesttheimmaturity ofthemoralnotionsonwhichContractdependsby supplyingitsplacewithanelaboratejurisprudence ofOaths.Therearenocorrespondingreasonsfor thepovertyofpenallaw,andaccordingly,evenifit behazardoustopronouncethatthechildhoodof nationsisalwaysaperiodofungovernedviolence, weshallstillbeabletounderstandwhythemodern relationofcriminallawtocivilshouldbeinverted inancientcodes.
