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 for their generous coöperation in our plans, and it should be urged that the selections which appear in this Series, while adequate to the object sought, do not fairly represent the value of the works from which they are taken. The compilers also express their indebtedness to Elbert H. Gary, Esq., of New York City, for his ample provision of materials consulted in the Gary Library of Ancient and Primitive Law (in Northwestern University). A. K., J. H. W. ADDENDUM TO PREFACE TWENTY-FIVE years ago, while living in Japan, I became interested in the sources of old Japanese law. On turning over its then unpublished materials, I discovered that its institutions, point for point, showed parallel legal ideas, and sometimes (amidst influences totally independent) a striking similarity of development with the Occident. I was led to study these ideas from the comparative point of view. As yet a novice in the world of legal thought, I came under the fascination of what is called comparative law (or, as it may preferably be named, universal legal ideas). And I felt a wish and hope to cultivate that field especially. The world-wide spell of Maine's "Ancient Law" (published nearly a generation before) was still unique. Fustel's "Ancient City," its contemporary in France, had established a new point of view. Little or nothing more had been done by AngloAmerican scholars; Tylor, Lubbock, Morgan, MacLennan, had not emphasized the legal element in evolution, nor its continuity and universality. . Even on the Continent the science of comparative law was but summoning its adherents and marshalling its materials. Dareste was just publishing (1889) his first series of Etudes." Post's "Ursprung des Rechts" (1876), "Bausteine" (1880), and "Grundlagen" (1884), were beginning to receive a hearing. Kohler's "Zeitschrift" had been started a decade before (1878). Tarde's "Transformations du droit" (1893), Letourneau's "Evolution juridique" (1891), and Leist's" Alt-arisches jus" (1889, 1892), were yet in manuscript. In a published study (now forgotten by the learned world) on "The Pledge-Idea," I satisfied myself there were great possibilities in the tracing of the evolution of universal legal ideas. I can see now, in the light of what others have since done, how much more there is in the philosophy of the subject than I then imagined. But that early experience convinced me in a personal way that the subject had a real claim upon us and a great future, — immensely greater than the then state of the literature might indicate. Circumstances obstructed my wish to pursue the task, and it was laid aside as a dream. But, through the kindness of my colleague, the opportunity has now after all been afforded to me to take a share in the work awaiting to be done in this fascinating field. I obtrude here this personal statement because I have a sentimental interest in thus returning to the science of my early hopes. And it will perhaps be interesting to some to be reminded how long we have been waiting in Anglo-America to take up into our scientific legal thought the study of this culminating and comprehensive subject. Maine's inspiring call has echoed all through these fifty years. time, the materials for general study were worth while. But now they are plentiful. editors of this work is that it will provide at once a stimulus and an opportunity for a general interest in the subject, and will help it to take its rightful place in legal studies. For part of that perhaps hardly The hope of the J. H. W. |