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the rule, the custom would have been legalized relatively much sooner than it actually was.
Customs then are the same thing as laws to the historical jurist, and his business is to trace the influences under which they have grown up, flourished, and decayed, their dependence on the intellectual and moral conditions of society at different times, and their reaction upon them. The recognized science – and such it may now be considered to be – with which historical jurisprudence has most analogy is the science of language. Laws and customs are to the one what words are to the other, and each separate municipal system has its analogue in a language. Legal systems are related together like languages and dialects, and the investigation in both cases brings us back at last to the meagre and obscure records of savage custom and speech. A great master of the science of language (Max Müller) has indeed distinguished it from jurisprudence, as belonging to a totally different class of sciences. "It is perfectly true," he says, "that if language be the work of man in the same sense in which a statue, or a temple, or a poem, or a law are properly called the works of man, the science of language would have to be classed as an historical science. We should have a history of language as we have a history of art, of poetry, and of jurisprudence; but we could not claim for it a place side by side with the various branches of natural history." Whatever be the proper position of either philology or jurisprudence in relation to the natural sciences, it would not be difficult to show that laws and customs on the whole are equally independent of the efforts of individual human wills, – which appears to be what is meant by language not being the work of man. The most complete acceptance of Austin's theory that law everywhere and always is the command of the sovereign does not involve any withdrawal of laws from the domain of natural science, does not in the least interfere with the scientific study of their affinities and relationships. Max Müller elsewhere illustrates his conception of the different relation of words and laws to the individual will by the story of the emperor Tiberius, who was reproved for a grammatical mistake by Marcellus, whereupon Capito, another grammarian, obsarved that, if what the emperor said was not good Latin, it would soon be so. "Capito," said Marcellus, "is a liar; for, Cæsar, thou canst give the Roman citizenship to men, but not to words." The mere impulse of a single mind, even that of a Roman emperor, however, probably counts for little more in law than it does in language. Even in language one powerful intellect or one influential academy may, by its own decree, give a bent to modes of speech which they would not otherwise have taken. But whether law or language be conventional or natural is really an obsolete question, and the difference between historical and natural sciences in the last result is one of names.
The application of the historical method to law has not resulted in anything like the discoveries which have made comparative philology a science. There is no Grimm's law for jurisprudence; but something has been done in that direction by the discovery of the analogous processes and principles which underlie legal systems having no external resemblance to each other. It happens, however, that the historical study of law has, for the most part, been confined to a single system – the Roman law. The Roman law presents itself to the historical student in two different aspects. It is regarded as the law of the Roman republic and empire, a system whose history can be traced through out a great part of its duration with certainty, and in parts with great detail It is, moreover, a body of rationalized legal principles which may be considered apart from the state system in which they were developed, and which have, in fact, entered into the jurisprudence of the whole of modern Europe on the strength of their own abstract authority, – so much so that the continued existence of the civil law, after the fall of the empire, is entitled to be considered one of the first discoveries of the historical method. Alike, therefore, in its original history, as the law of the Roman state, and as the source from which the fundamental principles of modern laws have been taken, the Roman law presented the most obvious and attractive subject of historical study. An immense impulse was given to the history of Roman law by the discovery of the Institutes of Gaius in 1816. A complete view of Roman law, as it existed three centuries and a half before Justinian, was then obtained, and as the later Institutes were, in point of form, a recension of those of Gaius,[1] the comparison of the two stages in legal history was at once easy and fruitful. Moreover, Gaius dealt with antiquities of the law which had become obsolete in the time of Justinian, and were passed over by him without notice. Roman law has accordingly been the main subject of historical study, and the conclusions of jurisprudence are to a great extent generalizations suggested by the history of Roman law.
Nowhere did Roman law in its modern aspect give a stronger impulse to the study of legal history than in Germany. The historical school of German jurists led the reaction of national sentiment against the proposals for a general code made by Thibaut. They were accused by their opponents of setting up the law of past times as intrinsically entitled to be observed, and they were no doubt strongly inspired by reverence for customs and traditions. Through the examination of their own customary laws, and through the elimination and separate study of the Roman element therein, they were led to form general views of the history of legal principles. In the hands of Savigny, the greatest master of the school, the historical theory was developed into a universal philosophy of law, covering the ground which we should assign separately to jurisprudence, analytical and historical, and to theories of legislation. There is not in Savigny's system the faintest approach to the Austinian analysis. The range of it is not the analysis of law as a command, but that of a Rechtsverhältniss or legal relation. Far from regarding law as the creation of the will of individuals, he maintains it to be the natural outcome of the consciousness of the people, like their social habits or their language. And he assimilates changes in law to changes in language. "As in the life of individual men no moment of complete stillness is experienced, but a constant organic development, such also is the case in the life of nations, and in every individual element in which this collective life consists; so we find in language a constant formation and development, and in the same way in law."[2] German jurisprudence is darkened by metaphysical thought, and weakened, as we believe, by defective analysis of positive law. But its conception of laws is exceedingly favourable to the growth of an historical philosophy, the results of which have a value of their own, apart altogether from the character of the first principles. Such, for instance, is Savigny's famous examination of the law of possession.
There is only one other system of law which is worthy of being placed by the side of Roman law, and that is the law of England. No other European system can be compared with that which is the origin and substratum of them all; but England, as it happens, is isolated
