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Studies in History and Jurisprudence, Vol. 1 [1901] The Online Library of Liberty A Project Of Liberty Fund, Inc. Viscount James Bryce, Studies in History and Jurisprudence, vol. 1 [1901] The Online Library Of Liberty This E-Book (PDF format) is published by Liberty Fund, Inc., a private, non-profit, educational foundation established in 1960 to encourage study of the ideal of a society of free and responsible individuals. 2010 was the 50th anniversary year of the founding of Liberty Fund. It is part of the Online Library of Liberty web site http://oll.libertyfund.org, which was established in 2004 in order to further the educational goals of Liberty Fund, Inc. To find out more about the author or title, to use the site's powerful search engine, to see other titles in other formats (HTML, facsimile PDF), or to make use of the hundreds of essays, educational aids, and study guides, please visit the OLL web site. This title is also part of the Portable Library of Liberty DVD which contains over 1,000 books and quotes about liberty and power, and is available free of charge upon request. The cuneiform inscription that appears in the logo and serves as a design element in all Liberty Fund books and web sites is the earliest-known written appearance of the word “freedom” (amagi), or “liberty.” It is taken from a clay document written about 2300 B.C. in the Sumerian city-state of Lagash, in present day Iraq. To find out more about Liberty Fund, Inc., or the Online Library of Liberty Project, please contact the Director at [email protected]. LIBERTY FUND, INC. 8335 Allison Pointe Trail, Suite 300 Indianapolis, Indiana 46250-1684 Online Library of Liberty: Studies in History and Jurisprudence, vol. 1 Edition Used: Studies in History and Jurisprudence (New York: Oxford University Press, 1901). 2 vols. Author: Viscount James Bryce About This Title: Vol. 1 of a two volume collection of Bryce’s essays and articles on the Roman and British Empires, constitutional history and theory, obedience, sovereignty, the law of nature , and legal history. PLL v6.0 (generated September, 2011) 2 http://oll.libertyfund.org/title/2003 Online Library of Liberty: Studies in History and Jurisprudence, vol. 1 About Liberty Fund: Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals. Copyright Information: The text is in the public domain. Fair Use Statement: This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit. PLL v6.0 (generated September, 2011) 3 http://oll.libertyfund.org/title/2003 Online Library of Liberty: Studies in History and Jurisprudence, vol. 1 PLL v6.0 (generated September, 2011) 4 http://oll.libertyfund.org/title/2003 Online Library of Liberty: Studies in History and Jurisprudence, vol. 1 Table Of Contents Preface I: The Roman Empire and the British Empire In India II: The Extension of Roman and English Law Throughout the World III: Flexible and Rigid Constitutions 1 Note to Essay Iii Constitutional and Other Governments IV: The Action of Centripetal and Centrifugal Forces On Political Constitutions 1 V: Primitive Iceland VI: The United States Constitution As Seen In the Past VII: Two South African Constitutions 1 VIII: The Constitution of the Commonwealth of Australia THIS VOLUME WAS TO HAVE BEEN OFFERED TO HENRY SIDGWICK (LATE PROFESSOR OF MORAL PHILOSOPHY IN THE UNIVERSITY OF CAMBRIDGE) WITH WHOM I HAD OFTEN DISCUSSED THE TOPICS IT DEALS WITH, AND IN WHOM I HAD ADMIRED, DURING AN INTIMATE FRIENDSHIP OF NEARLY FORTY YEARS, A SUBTLE AND FERTILE MIND, A CHARACTER OF SINGULAR PURITY AND BEAUTY, AND AN UNFAILING LOVE OF TRUTH. IT IS NOW DEDICATED TO HIS MEMORY. PLL v6.0 (generated September, 2011) 5 http://oll.libertyfund.org/title/2003 Online Library of Liberty: Studies in History and Jurisprudence, vol. 1 [Back to Table of Contents] PREFACE This volume contains a collection of Studies composed at different times over a long series of years. It treats of diverse topics: yet through many of them there runs a common thread, that of a comparison between the history and law of Rome and the history and law of England. I have handled this comparison from several points of view, even at the risk of some little repetition, applying it in one essay to the growth of the Roman and British Empires (Essay I), in another to the extension over the world of their respective legal systems (Essay II), in another to their Constitutions (Essay III), in others to their legislation (Essays XIV and XV), in another to an important branch of their private civil law (Essay XVI). The topic is one profitable to a student of the history of either nation; and it has not been largely treated by any writers known to me; as indeed few of our best known historians touch upon the legal aspects of history. Two Essays (III and IV) embody an effort to examine political constitutions generally from comparatively unfamiliar points of view. Five (IX, X, XI, XII and XIII) are devoted to the discussion, in a non-technical way, of problems in jurisprudence which have both a theoretical and a historical—to some extent also a practical—side. Another sketches in outline the early history of Iceland, and the very peculiar constitution of the primitive Icelandic Republic. Three others relate to modern constitutions. One contains reflections on the history of the constitution of the United States, a second describes the systems of the two Dutch Republics in South Africa, and a third analyses and comments on the constitution recently created for the new Commonwealth of Australia. My aim throughout the book has been to bring out the importance, sometimes overlooked, of the constitutional and legal element in history, and to present topics which, because somewhat technical, often repel people by their apparent dryness, in a way which shall make them at least intelligible—since they can hardly be made seductive—to a reader who does not add to a fair general knowledge of history any special knowledge of law. Technicalities cannot be wholly avoided; but I hope to have indulged in none that were not absolutely necessary. The longer one lives the more is one impressed by the close connexion between the old Greco-Italian world and our own. We are still very near the ancients; and have still much to learn from their writings and their institutions. The current of study and education is at present setting so strongly towards the sciences of nature that it becomes all the more needful for those who value historical inquiry and the literature of the past to do what they can to bring that old world into a definite and tangible relation with the modern time, a relation which shall be not only stimulative but also practically helpful. None of these Studies have previously appeared in print except two, viz. those relating to the United States and to the two Dutch Republics; and both of these have been enlarged and revised. My thanks are due to my friend Professor Herbert B. PLL v6.0 (generated September, 2011) 6 http://oll.libertyfund.org/title/2003 Online Library of Liberty: Studies in History and Jurisprudence, vol. 1 Adams of Johns Hopkins University, Baltimore, and to the proprietors of the Forum magazine respectively for permission to republish these two. Some Studies were (in substance) delivered as Public Lectures at Oxford, during the years 1870-1893 (when I held the Regius Professorship of Civil Law there), pursuant to the custom which exists in that University for a professor to deliver from time to time discourses dealing with the wider and less technical aspects of his subject. All these have, however, been rewritten for publication; and whoever has had a similar experience will know how much more time and trouble it takes to rewrite a discourse than to compose one de novo. Two Lectures, delivered one when I entered on and the other when I resigned the professorship, have been appended, in the belief that they may have some interest for members of the University and for those who watch with sympathy the development of legal teaching in England. I have endeavoured to bring up to date all references to recent events, so that when such events are mentioned the book may be taken to speak as from 1900 or 1901. As it is now nine years since I was obliged (when I entered Mr. Gladstone’s Ministry in 1892) to intermit any minute study either of Roman or of English law, it is probable that the book may disclose an imperfect knowledge of facts and views given to the world during those nine years. Under these conditions I might have wished to keep the book longer before publishing it. But life is short. Some of the friends to whose comments and criticisms I had most looked forward while composing these Studies have already passed away. So it seemed better to let what I have written, under the constant pressure of other duties, go forth now. Among the friends whom I have to thank for information or suggestions are Professors A. V. Dicey, Sir F. Pollock, Henry Goudy, and Henry Pelham of Oxford, Sir Courtenay Ilbert (Parliamentary Counsel to the Treasury), Dr. C. L. Shadwell and Mr. Edward Jenks of Oxford, Dr. F. Sigel of Warsaw, and Mr. Jón Stefánsson of Iceland. The Index has been prepared by Mr.
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