PREFACE

THE department of legal history deals with particulars, with the special and concrete details of a legal system; while the field of historical jurisprudence is universals, the general and abstract phases of legal evolution. This collection of readings does not aim to present the sequences of facts attached to the names of men, places, and things, necessary (as is now, perhaps, almost universally admitted) to an understanding of legal rules as they obtain here or there; but is intended as an exposition of the law (to use the language of Mr. Justice Holmes) "as a great anthropological document." Therefore these volumes properly will be classified on the side of what is thus, somewhat vaguely, called historical jurisprudence or legal ethnology.

We need not insist too much upon the claim that an acquaintance with the anthropology of the law has a direct, tangible, and quantitative bearing on the isolated manifestations of the law as expressed in the daily conflicts of practical life. Nor yet would we disparage the thought that a general survey of the course of legal evolution has a measurable qualitative relation to the complex, and, at times, discordant play of modern legal phenomena, at least for those who looking into the vessel of life reflect that "the Eternal Sáki from that bowl has poured millions of bubbles like us, and will pour." Moreover, to advocate such study on the ground of the creation or discovery of a new discipline will fail to persuade; there are already disciplines enough. And, again, an appeal to the informative value of this learning, while the easiest method of justification for a prevailing curiosity into what is strange and bizarre, is not the claim which this undertaking prefers to support.

Not, therefore, as a positive instrument concretely applicable to the details of an existing legal technic, not as a mental gymnastic, not to satisfy a natural interest, but rather as tending to chart in broad outline the march of humanity in its effort to govern itself and work out its destiny, is the conscious

purpose of these readings. They are offered in the belief that the day is not far distant when the students of the law, the teachers of the law, and the examiners in the law will be dissatisfied with an equipment of knowledge which attempts only the dogmatic side, and neglects the universal, and even the specific historical background of legal institutions.

It need hardly be said to any one whose vision has extended to genetic and comparative knowledge of the institutions of society, that the present is not understood without information concerning the past, and that the future must remain a greater enigma than it is, without an attempt to penetrate the course of evolution. Historical knowledge must, and will, always remain the one certain test of present expediency, and the scientific tool for measuring the paths of the ages to come. It is unmistakable that the law of all progressive countries is undergoing rapid changes, easily observable even within the span of the last generation. Only the intolerant reactionary, or the technical stickler whose sense of perspective is destroyed by the details of his craft, can fail to observe the motion of the stream. The revolutionary also may find much in the stolid processes of history which defies the human will and carries out purposes of its own. Every reader will interpret his own philosophy of history, and construct his own generalizations. But certain it is, that from the evidence of man's struggle in countless ages to achieve human society, there may be constructed philosophies and generalizations important enough in a large sense, if not also in terms of immediate use, as instruments of knowledge to be worthy of serious attention.

The philosophies will oscillate between the mechanical pantheism, on one side, of Post, and the view of Hegel, on the other, that history is the "actualization of the universal spirit." The compilers have not sought here to solve any problems of their own, or to ventilate any theories; and naturally they do not offer in these volumes anything as a final solution of the problems involved. When a solution is presented, it is tendered only as a basis of discussion, and a motive for further inquiry. Especially it is sought to avoid any suggestion of espousal of an ultimate metaphysical position as to the meaning and value of history. Nevertheless an intermediate working thesis is necessary to vindicate the very existence of this compilation. It is found in the essential unity of human nature. This is explanatory of the existence of a similarity of institutions among a diversity of peoples where the principle of imitation is inadmissible. It furnishes the distinguishing marks of the

phases and stages of legal evolution, and provides at least one of the important tests of legislative policy. To go farther would trespass on a privilege reserved for the reader.

The field of historical knowledge is to-day so extensive that a great variety of rendering was possible in execution of the purposes of this compilation. A collection of this nature, although governed by a principle of unity, is still liable to be charged with various sins of omission and commission. In this respect, it is much like an anthology, where the personal choice of the compiler as to the flowers of the garden to be plucked will differ in one way and another from the judgment of every other person in the world. The risk of displeasing every one at some point is therefore inevitable.

Primarily these readings have been projected, as an introduction to the study of specific legal systems, for use in law schools which are now limited to the classic text of Maine's "Ancient Law." Secondarily (only in intention, but equally and perhaps greater in advantage) these readings may be employed by the lawyer who has completed the conventional course of legal studies, and by the cultured general reader who seeks to find in the history of legal institutions man's most important effort to emerge from the night of savagery to the light of civilization.

The plan of the present work dealing with Ancient and Primitive Law involves three volumes. The first is a compilation of sources selected from (i) ancient literatures, (ii) modern observations of retarded peoples, (iii) ancient laws, and (iv) legal transactions, including trials and documents. The second selects chapters from modern scholars expounding the relation of law to general social institutions, and such specific legal institutions as Family, Property, Contract, etc. The third volume will select similar chapters interpreting the formative influences which have governed the development of the law. The present undertaking, therefore, aims to present an outline, chiefly of the rudimentary and basic part of legal evolution, and incidentally, for purposes of comparison, ancient law. Similar treatment of developed and modern institutions is another distinct program.

The course of the work proceeds from the purely concrete as shown in the first volume to the abstract as represented in the third volume. As legal history has hitherto been taught, the student has been learnedly instructed in the meaning and influence (let us say) of such laws as the Twelve Tables or the Lex Salica without having read these laws themselves. This

we believe is a fundamental error.

With the successful issue of the case method before our eyes, which is spreading to other fields from the law, we begin by placing in the hands of the reader the best evidence of ancient law, either the law itself, when there is written law, or an ancient record from general literature of customary law, when there is no written law. Primitive peoples are, in a similar way, made known by the record of trained observers. This method of presentation was

regarded as indispensable.

With the exception of Mr. Henderson's compilation of the "Historical Documents of the Middle Ages" (which is comparable to the first volume) we believe that no similar undertaking has been attempted in English, and the indulgence of the learned critic will be presumed in this attempt to treat in a pioneer way the large field entered. Some harmless inconsistency of arrangement will be evident to the expert, but absolute logical symmetry was unattainable without necessary disadvantages. The combination of ancient and primitive law itself results, in fact, in inconsistency. Barring the controversy provoked by the term "primitive" (for what is the test of "primitive"?) there are examples of ancient law as modern in conception as anything seen in the world to-day. A “citizen of a modern city would probably feel more at home in ancient Babylon than in medieval Europe" (Johns, “Babylonian and Assyrian Laws," p. vii). Why, it may be asked, are such things combined with the legal mores of the Kaffirs, the red Indians, and the Eskimos?

The fact of this combination of conflicting elements within the same volume has developed the problem of space limitations, and for this reason original notes and bibliographies are omitted. Such notes of our own as were not to be avoided are put in square brackets.

Further explanation might appear to attach more importance to our part in assembling the writings of others, than we desire to assert. But it needs to be said that the present selections are substantially only an outline, and represent the irreducible minimum of what is to be compassed by the student who approaches this subject. In particular, it may be suggested, also, that what is here presented is only the external shell of legal evolution. The internal life of this development must be constructed by other agencies than history, which is after all only the more or less satisfactory appearance of the reality within.

The compilers desire to make grateful acknowledgment to the various authors and publishers represented in this Series