in the same manner as we cannot far trace in the depths of the earth the springs which feed our fountains, so it is denied to us to know any thing of these natural fountains of justice, before the time when we find them nourishing the wise counsels of those tribes of noble barbarians, out of which, after ages of turmoil and conflict, progressive nations are formed.

The first scene of the drama of national life opens with the settlement in the same land of warlike and hostile tribes, each living after the customs which they brought with them from their former homes, and seeking, in proportion to their strength, to impose those customs on the weaker tribes around them. Those customs or ordinances some member of the most powerful tribe has perhaps caused to be collected and publicly made known to the whole population, so that no one might unwittingly infringe them. This was precisely what Draco, himself a member of the Eupatridæ, accomplished in Attica in the seventh century before Christ. He did not alter the political constitution, nor aspire to the invention or establishment of an original system of laws; but he simply caused to be put in writing the Thesmoi or Ordinances which previously existed (a) ; and, so far as we can judge of them, they consisted of little else than laws to repress crime by punishments which appeared of extreme severity to later ages, when manners were more mild and crimes more easily repressed. The legends attribute to Romulus only the establishment of laws to repress crime, leaving to Numa the authorship of those which belong to religion and the details of civil order; though both these personages were probably nothing but eminent chieftains, to whom after ages ascribed the origin of the customs they found established among the principal of the tribes out of which the Roman nation was formed (b).

Now, the first step in the history of a nation is its formation by the fusion of these various tribes which are settled upon the land; and the necessity for the fusion of their laws and customs into one harmonious system binding upon the whole nation, gives rise to what I denominate the first school of (a) Grote, History of Greece, iii, 101. (b) Niebuhr, History of Rome, ii, 282.

legislation. The most distinguished examples of this school in ancient times are Lycurgus, Solon, and the first Decemvirate; among the modern nations, which are of grander and slower development than the ancient, this school of legislation has had a gradual operation, more certain and magnificent in its results, though perhaps less striking at the first glance, because it has used as its instrument not a single individual or a council of ten, but successive generations of legislators.

Perhaps the first observation which will occur to the minds of those who hear this paper, is the extreme diversity of the systems of the legislators whom I have classed together; but any objection which may thence arise will, I think, be removed, when we consider that not only are the groups of individual tribes out of which nations are formed, different in each instance in their origin, habits, and customs; but, what is of more moment, they, in the general fusion by which the nation is ultimately formed, take shares of power and influence in no two instances alike, and the legislator is but the exponent and the instrument of the necessities of the time. He cannot substantially alter the relative power and rank of the elements with which he has to deal; his duty is to give due effect and influence to them in his legislation; nor does he resemble the closet philosophers of the last generation, who were prepared to frame universal systems of government and codes of law suited for every nation, but he can only establish those systems which can work with the materials existing in the nation with which he has to deal. It was Solon who, when asked whether he had given the Athenians the best laws, answered that he had given them the best that they were capable of receiving.

Now, if with this clue we examine the efforts of this school of legislation, their diversities will be found to be the direct results of the diverse character and power of the elements which formed the nations for which they had to legislate.

Lycurgus had to deal with a nation where the Doric race were supreme masters, and his legislation was therefore the simple embodiment of the old customs of the Doric race (which were previously established in Crete), but with the

a

alterations necessary for its position in Sparta as a conquering aristocracy (a). He thus consolidated the Lacedæmonian nation, though certainly after a fashion which tended for ever to preserve it in the first stage of national life, and to prevent its becoming progressive. Solon's field of action was nation where one race or class possessed nearly all the land, while the rest of the population was driven by oppression into rebellion. His legislation, embodying so much of the customs of the various Attic races as could consistently be retained, was yet required to create mutual rights and obligations between the classes which afterwards ripened into an aristocracy and a democracy; while before his time they had had scarce any other relation but that of creditor and debtor, which, when the creditors could make and enforce their own laws, was very much the same as that between master and slave; and therefore, in the legislation of Solon, there was much that was new to the Athenian race, though whether invented by the legislator or borrowed from the Egyptians may be left for others to discuss.

A similar necessity gave rise to the appointment of the Decemvirs. Previous to their time each of the Roman tribes and races was governed by a different set of customs (b), in most instances unwritten, and in all very vague; and the object aimed at in the proposed change was, as Niebuhr has remarked, threefold-to unite the two orders of patricians and plebeians, and place them as nearly as possible on an equal footing, to institute a supreme magistracy in the room of the consulship, and to frame a national code for all classes of Romans without distinction. The laws of the Twelve Tables, according to the better opinion, did not introduce a body of new laws, but rather fixed and reduced into an harmonious system such of the old customary laws as could without inconsistency be retained.

The history of the modern nations of Europe opened with the same character of diversity of tribes and races, and consequent

(a) See Muller's Dorians, iii. 1. 8. Grote, History of Greece, ii. 456. Herod. i. 65, 66.

(b) Niebuhr, History of Rome, ii. 282.

diversity of customs. In the same country lived the Lombard according to the Lombard law, the Roman according to the Roman law; while the Franks, the Burgundians, and the Goths, retained in the new homes that they had conquered the customary laws which they brought with them from their native forests (a). What the ancient legislators whom we have named accomplished for their nation was effected in modern Italy by means of the statutes; and when the cities became so powerful as to be able to compel the nobles who inhabited their territory to submit to their laws, and reside during some part of the year within their walls, the modern Italian states may be said to have been founded. In England, France (6), Spain, and Germany, the establishment and consolidation of the feudal system, into which was gradually absorbed a considerable part of the customary laws of the original races and of the Roman law, occupied centuries; but, in principle, what was thus accomplished for those nations was the same as what Solon, Lycurgus, and the Decemvirs had done in a few years for their respective countries. The nations which they had to form were small, and derived from few elements in comparison with the nations of modern times; and So, while the life of one man sufficed for the former, for the latter it has taken the labour of successive generations of legislators to fix the keystone of the arch on which the progressive greatness of nations must be built.

This, then, is the first school of legislation, and its principal characteristics are five :-First, That it collects the scattered customary laws of different tribes, and fuses them into one system of law, as the tribes themselves are fused into one nation. Second, That it not merely establishes civil and penal laws, but it consolidates and ensures the social order of the state, by changes and adjustments which in these days we should term political. Third, That with a view (if one may so speak) to the moral education of the nation, it exercises a minute interference in the affairs of private life-the aim of

(a) Savigny, Hist. du Droit Rom. i. 90, 123. Hallam, Middle Ages, i. 148. (b) The first measures of general legislation in France date from 1322. Hallam, Middle Ages, p. 248. See on the old customs of France, Argon, Institution au Droit Franc. i, 58 et seq.

the legislator then being to mould those for whom he legislates into good citizens and subjects. Fourth, That it regards only the welfare of its own nation, to which it considers all surrounding nations to be natural enemies, with whom there may be occasional truces, but, for want of community of interest, no lasting friendship. Fifth, That it is directed to mitigate (a) the savage usages of the barbarous tribes, to whom it affords the first introduction to civilization; for the arts of peace can never flourish till the civil order of the nation has been ensured by its first legislators, who, in a metaphorical sense, do what one of their number did literally -stand on a lonely elevation, in the barren and barbarous wilderness, looking forward upon the goodly land they may never own-the happy times they may never enjoy-the wealth and grandeur they may never partake; but all which they have secured for the nations which their legislation has enabled to start on the course of national progress.

The second school of legislation immediately succeeds the first, and its principal characteristic consists in its being the simple and inartificial result, and, if one may so speak, exponent of the development of national progress. "The laws of a nation" (says Gibbon) "form the most instructive portion of its history," and they do so for this reason:- It has been ordained, that to each social element a peculiar spirit of legislation should belong. There is one character belonging to the legislation of absolute aristocracy; another, quite different, belonging to the legislation of absolute democracy; and so with respect to absolute monarchy, absolute plutocracy, and absolute theocracy. In proportion to the relative strength of each of these social elements, the spirit of its legislation pervades the statute book of the nation. We hear of naturalists who, from the examination of a single bone, can reconstruct the skeleton of an extinct species; so, when the science of history-now in its rudest beginnings-shall have advanced, the historian will be able, from the laws of a nation, to discover the forms of life, and the social forces which existed

(a) It generally does this very imperfectly. See Mill, British India, i. 217. Milman's Jews, i. 32. Grote, iii. 477.