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udge''s mind at the moment of adjudication. It is of course extremely difficult for us to realise a view so far removed from us in point both of time and of association， but it will become more credible when we dwell more at length on the constitution of ancient Society， in which every man， living during the greater part of his life under the patriarchal despotism， was practically controlled in all his actions by a regimen not of law but of caprice. I may add that an Englishman should be better able than a foreigner to appreciate the historical fact that the “Themistes” preceded any conception of law， because， amid the many inconsistent theories which prevail concerning the character of English jurisprudence， the most popular， or at all events the one which most affects practice， is certainly a theory which assumes that adjudged cases and precedents exist antecedently to rules， principles， and distinctions. The “Themistes” have too， it should be remarked， the characteristic which， in the view of Bentham and Austin， distinguishes single or mere commands from laws. A true law enjoins on all the citizens indifferently a number of acts similar in class or kind； and this is exactly the feature of a law which has most deeply impressed itself on the popular mind， Causing the term “law” to be applied to mere uniformities， successions， and similitudes. A command prescribes only a single act， and it is to commands， therefore， that “Themistes” are more akin than to laws. They are simply adjudications on insulated states of fact， and do not necessarily follow each other in any orderly sequence.
The literature of the heroic age discloses to us law in the germ under the “Themistes” and a little more developed in the conception of “Dike.” The next stage which we reach in the history of jurisprudence is strongly marked and surrounded by the utmost interest. Mr. Grote， in the second part and second chapter of his History， has fully described the mode in which society gradually clothed itself with a different character from that delineated by Homer. Heroic kingship depended partly on divinely given prerogative， and partly on the possession of supereminent strength， courage， and wisdom. Gradually， as the impression of the monarch''s sacredness became weakened， and feeble members occurred in the series of hereditary kings， the royal power decayed， and at last gave way to the dominion of aristocracies. If language so precise can be used of the revolution， we might say that the office of the king was usurped by that council of chiefs which Homer repeatedly alludes to and depicts. At all events from an epoch of kingly rule we come everywhere in Europe to an era of oligarchies； and even where the name of the monarchical functions does not absolutely disappear， the authority of the king is reduced to a mere shadow. He becomes a mere hereditary general； as in Lacedaemon， a mere functionary， as the King Archon at Athens， or a mere formal hierophant， like the Rex Sacrificulus at Rome. In Greece， Italy， and Asia Minor， the dominant orders seem to have univerally consisted of a number of families united by an assumed relationship in blood， and， though they all appear at first to have laid claim to a quasi-sacred character， their strength does not seem to have resided in their pretended sanctity. Unless they were prematurely overthrown by the popular party， they all ultimately approached very closely to what we should now understand by a political aristocracy. The changes which society underwent in the communities of the further Asia occurred of course at periods long anterior in point of time to these revolutions of the Italian and Hellenic worlds； but their relative place in civilisation appear to have been the same， and they seem to have been exceedingly similar in general character. There is some evidence that the races which were subsequently united under the Persian monarchy， and those which peopled the peninsula of India， had all their heroic age and their era of aristocracies； but a military and a religious oligarchy appear to have grown up separately， nor was the authority of the king generally superseded. Contrary， too， to the course of events in the West， the religious element in the East tended to get the better of the military and political. Military and civil aristocracies disappear， annihilated or crushed into insignificance between the kings and the sacerdotal order； and the ultimate result at which we arrive is， a monarch enjoying great power， but circumscribed by the privileges of a caste of priests. With these differences， however， that in the East aristocracies became religious， in the West civil or political， the proposition that a historical era of aristocracies succeeded a historical era of heroic kings may be considered as true， if not of all mankind， at all events of all branches of the Indo-European family of nations.
The important point for the jurist is that these aristocracies were universally the depositaries and administrators of law. They seem to have succeeded to the prerogatives of the king， with the important difference， however， that they do not appear to have pretended to direct inspiration for each sentence. The connection of ideas which caused the judgments of the patriarchal chieftain to be attributed to superhuman dictation still shows itself here and there in the claim of a divine origin for the entire body of rules， or for certain parts of it， but the progress of thought no longer permits the solution of particular disputes to be explained by supposing an extra-human interposition. What the juristical oligarchy now claims is to monopolise the knowledge of the laws， to have the exclusive possession of the principles by which quarrels are decided. We have in fact arrived at the epoch of Customary Law. Customs or Observances now exist as a substantive aggregate， and are assumed to be precisely known to the aristocratic order or caste. Our authorities leave us no doubt that the trust lodged with the oligarchy was sometimes abused， but it certainly ought not to be regarded as a mere usurpation or engine of tyranny. Before the invention of writing， and during the infancy of the art， an aristocracy invested with judicial privileges formed the only expedient by which accurate preservation of the customs of the race or tribe could be at all approximated to. Their genuineness was， so far as possible， insured by confiding them to the recollection of a limited portion of the community.
The epoch of Customary Law， and of its custody by a privileged order， is a very remarkable one. The condition of the jurisprudence which it implies has left traces which may still be detected in legal and popular phraseology. The law， thus known exclusively to a privileged minority， whether a caste， an aristocracy， a priestly tribe， or a sacerdotal college， is true unwritten law. Except this， there is no such thing as unwritten law in the world. English case-law is sometimes spoken of as unwritten， and there are some English theorists who assure us that if a code of English jurisprudence were prepared we should be turning unwritten law into written —— conversion， as they insist， if not of doubtful policy， at all events of the greatest seriousness. Now， it is quite true that there was once a period at which the English common law might reasonably have been termed unwritten. The elder English judges did really pretend to knowledge of rules， principles， and distinctions which were not entirely revealed to the bar and to the lay-public. Whether all the law which they claimed to monopolise was really unwritten， is exceedingly questionable； but at all events， on the assumption that there was once a large mass of civil and criminal rules known exclusively to the judges， it presently ceased to be unwritten law. As soon as the Courts at Westminster Hall began to base their judgments on cases recorded， whether in the year books or elsewhere， the law which they administered became written law. At the present moment a rule of English law has first to be disentangled from the recorded facts of adjudged printed precedents， then thrown into a form of words varying with the taste， precision， and knowledge of the particular judge， and then applied to the circumstances of the case for adjudication. But at no stage of this process has it any characteristic which distinguishes it from written law. It is written case-law， and only different from code-law because it is written in a different way.
from the period of Customary Law we come to another sharply defined epoch in the history of jurisprudence. We arrive at the era of Codes， those ancient codes of which the Twelve Tables of Rome were the most famous specimen. In Greece， in Italy， on the Hellenised sea-board of Western Asia， these codes all made their appearance at periods much the same everywhere， not， I mean， at periods identical in point of time， but similar in point of the relative progress of each community. Everywhere， in the countries I have named， laws engraven on tablets and published to the people take the place of usages deposited with the recollection of a privileged oligarchy. It must not for a moment be supposed that the refined considerations now urged in favour of what is called codification had any part or place in the change I have described. The ancient codes were doubtless originally suggested by the discovery and diffusion of the art of writing. It is true that the aristocracies seem to have abused their monopoly of legal knowledge； and at all events their exclusive possession of the law was a formidable impediment to the success of those popular movements which began to be universal in the western world. But， though democratic sentiment may have added to their popularity， the codes were certainly in the main a direct result of the invention of writing. Inscribed tablets were seen to be a better depositary of law， and a better security for its accurate preservation， than the memory of a number of persons however strengthened by habitual exercise.
The Roman code belongs to the class of codes I have been describing. Their value did not consist in any approach to symmetrical classifications， or to terseness and clearness of expression， but in their publicity， and in the knowledge which they furnished to everybody， as to what he was to do， and what not to do. It is， indeed， true that the Twelve Tables of Rome do exhibit some traces of systematic arrangement， but this is probably explained by the tradition that the framers of that body of law called in the assistance of Greeks who enjoyed the later Greek experience in the art of law-making. The fragments of the Attic Code of Solon show， however， that it had but little order， and probably the laws of Draco had even less. Quite enough too remains of these collections， both in the East and in the West， to show that they mingled up religious， civil， and merely moral ordinances， without any regard to differences in their essential character and this is consistent with all we know of early thought from other sources， the severance of law from morality， and of religion from law， belonging very distinctly to the later stages of mental progress.
But， whatever to a modern eye are the singularities of these Codes， their importance to ancient societies was unspeakable. The question —— and it was one which affected the whole future of each community —— was not so much whether there should be a code at all， for the majority of ancient societies seem to have obtained them sooner or later， and， but for the great interruption in the history of jurisprudence created by feudalism， it is likely that all modern law would be distinctly traceable to one or more of these fountain-heads. But the point on which turned the history of the race was， at what period， at what stage of their social progress， they should have their laws put into writing. In the western world the plebeian or popular element in each state successfully assailed the oligarchical monopoly； and a code was nearly universally obtained early in the history of the Commonwealth. But in the East， as I have before mentioned， the ruling aristocracies tended to become religious rather than military or political， and gained， therefore， rather than lost in power； while in some instances the physical conformation of Asiatic countries had the effect of making individual communities larger and more numerous than in the West； and it is a known social law that the larger the space over which a particular set of institutions is diffused， the greater is its tenacity and vitality. from whatever cause， the codes obtained by Eastern societies were obtained， relatively， much later than by Western， and wore a very different character. The religious oligarchies of Asia， either for their own guidance， or for the relief of their memory， or for the instruction of their disciples， seem in all cases to have ultimately embodied their legal learning in a code； but the opportunity of increasing and consolidating their influence was probably too tempting to be resisted. Their complete monopoly of legal knowledge appears to have enabled them to put off on the world collections， not so much of the rules actually observed as of the rules which the priestly order considered proper to be observed. The Hindoo code， called the Laws of Menu， which is certainly a Brahmin compilation， undoubtedly enshrines many genuine observances of the Hindoo race， but the opinion of the best contemporary orientalists is， that it does not， as a whole， represent a set of rules ever actually administered in Hindostan. It is， in great part， an ideal picture of that which， in the view of the Brahmins， ought to be the law. It is consistent with human nature and with the special motives of their author， that codes like that of Menu should pretend to the highest antiquity and claim to have emanated in their complete form from the Deity. Menu， according to Hindoo mythology， is an emanation from the supreme God； but the compilation which bears his name， though its exact date is not easily discovered， is， in point of the relative progress of Hindoo jurisprudence， a recent production.
Among the chief advantages which the Twelve Tables and similar codes conferred on the societies which obtained them， was the protection which they afforded against the frauds of the privileged oligarchy and also against the spontaneous depravation and debasement of the national institutions. The Roman Code was merely an enunciation in words of the existing customs of the Roman people. Relatively to the progress of the Romans in civilisation， it was a remarkably early code， and it was published at a time when Roman society had barely emerged from that intellectual condition in which civil obligation and religious duty are inevitably confounded. Now a barbarous society practising a body of customs， is exposed to some especial dangers which may be absolutely fatal to its progress in civilisation. The usages which a particular community is found to have adopted in its infancy and in its primitive seats are generally those which are on the whole best suited to promote its physical and moral well-being； and， if they are retained in their integrity until new social wants have taught new practices， the upward march of society is almost certain. But unhappily there is a law of development which ever threatens to operate upon unwritten usage. The customs are of course obeyed by multitudes who are incapable of understanding the true ground of their expediency， and who are therefore left inevitably to invent superstitious reasons for their permanence. A process then commences which may be shortly described by saying that usage which is reasonable generates usage which is unreasonable. Analog， the most valuable of instruments in the maturity of jurisprudence， is the most dangerous of snares in its infancy. Prohibitions and ordinances， originally confined， for good reasons， to a single description of acts， are made to apply to all acts of the same class， because a man menaced with the anger of the gods for doing one thing， feels a natural terror in doing any other thing which is remotely like it. After one kind of food has interdicted for sanitary reasons， the prohibition is extended to all food resembling it， though the resemblance occasionally depends on analogies the most fanciful. So， again， a wise provision for insuring general cleanliness dictates in time long routines of ceremonial ablution； and that division into classes which at a particular crisis of social history is necessary for the maintenance of the national existence degenerates into the most disastrous and blighting of all human institutions —— Caste. The fate of the Hindoo law is， in fact， the measure of the value of the Roman code. Ethnology shows us that the Romans and the Hindoos sprang from the same original stock， and there is indeed a striking resemblance between what appear to have been their original customs. Even now， Hindoo jurisprudence has a substratum of forethought and sound judgment， but irrational imitation has engrafted in it an immense apparatus of cruel absurdities. from these corruptions the Romans were protected by their code. It was compiled while the usage was still wholesome， and a hundred years afterwards it might have been too late. The Hindoo law has been to a great extent embodied in writing， but， ancient as in one sense are the compendia which still exist in Sanskrit， they contain ample evidence that they were drawn up after the mischief had been done. We are not of course entitled to say that if the Twelve Tables had not been published the Romans would have been condemned to a civilisation as feeble and perverted as that of the Hindoos， but thus much at least is certain， that with their code they were exempt from the very chance of so unhappy a destiny.
Henry Sumner Maine
第一章 古代法典
世界上最著名的一个法律学制度从一部“法典”（Code）开始，也随着它而结束。从罗马法历史的开始到结束，它的释义者一贯地在其用语中暗示着，他们制度的实体是建筑于“十二铜表法” （Twelve Decemviral Tables）、因此也就是建筑于成文法的基础上的。在罗马，对于“十二铜表法”以前的一切制度，除了一特殊之点外，都不予承认。罗马法律学在理论上是来自一部法典，而英国法律在理论上则被认为是来自古代的不成文惯例，这是他们制度的发展和我们制度的发展所以不同的主要原因。这两种理论与事实不完全相符，但却都产生了极端重要的后果。
“十二铜表法”的公布并不能作为我们开始研究法律史的最早起点，这是毋庸多说的。古代罗马法典，是属于这样一类的法典，几乎世界上每一个文明国家都可以提出一个范例，并且以罗马和希腊而论，它们是在彼此之间相距并不过分遥远的时代中在它们各自的领域中广泛地传布着。它们是在非常类似的情况下出现的，并且据我们所知，也是由类似的原因产生的。毫无疑问，在这些法典的后面，存在许多法律现象，这些法律现象在时间上是发生在法典之前的。现在有很多文件记录，明白地提供我们关于这种早期法律现象的知识。
但在语言学家能对“梵文”（Sanskrit）文学作出完全的分析以前，我们知识的最好来源无疑地只有希腊的荷马诗篇（Homeric poems），当然我们不能把它认作一种确实事件的历史，而只能把它作为作者所知道的不是完全出于想象的一种社会状态的描写。纵使诗人的想象力对于这种英雄时代的某些特征，如战士的勇猛以及神的威武，可能有些夸张之处，但我们没有理由相信� |
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