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PREFACE

THESE Volumes contain a collection of Studies composed at different times over a long series of years. They treat 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. 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. J. S. Cotton, to whom I am indebted for the care he has bestowed upon it.

June 27, 1901.

CONTENTS

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Employment of native subjects in civil and military posts
Civil rights of conquerors and of subjects
Respect shown to native religions and customs: contrast of
religious feeling in ancient and in modern world

Character of the conquerors as a source of their strength

Contrasts between the two Empires: geographical position of

the ruling race

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