A Federal Fiscal Policy. So far in this paper I have confined myself to the consideration of constitutional forms. The proposition is that these should be modified so far as is necessary to make them fit the self-evolving common purposes of the Empire. Beyond the reality of these purposes changes should not go, and that is my objection to the proposal of a Federal Parliament. Such a Parliament would almost inevitably prove a fetter and a drag, and in the end lead to disruption. The silken and elastic bonds of constitutional usage are better adapted to the spirit of our people than is the iron rigidity of a written constitution. But this kind of interference with their liberty of following out the policy that suits them best is not the only kind of interference which is talked of, nor the most dangerous. People are to-day speaking of a federal system of fiscal policy as though this were an easy thing to make universally acceptable and to keep so. I entertain something more than misgiving on this topic. When it was recently suggested that we should retain the corn duty and differentiate in favour of Canada and other Colonies, I was not struck merely by the apparent unconsciousness of the extent to which this scheme would set aside economic principles which, wrongly or rightly, have deliberately been made the foundation of our trade and fiscal system. What I asked myself was whether those who threw out the suggestion so easily had really reflected on what it involved. Canada is interested in wheat. Other Colonies are not interested in wheat, but are each of them-and they are many-interested in different articles of consumption, such as beef, mutton, sugar, and wool. How are we to refuse to modify our free-trade system for these and many other articles if we concede wheat to Canada? And if we do, what of the effect on the views of our people at home, accustomed to cheap food and cheap raw materials, and competing in the foreign markets where the great bulk of our trade lies with no advantages excepting these? I am not prepared to say that the change in our fiscal system would not so gall our own people as to endanger that cause of the unity of the Empire which most of us to-day have strongly at heart. Again, what of the effect of such a change in our fiscal constitution or our position in those vast territories which, like for example Egypt, we hold to-day without murmur because it suits the rest of the world that we should hold them? No occupation excepting one on a free-trade basis would be tolerable to other nations, and we should be driven to rely for our position, as by far the greatest nation in the world in point both of territory and population, on armaments alone, instead of good-will. I cannot see far enough along the new road to make myself easy over the idea of choosing it. I know not where it would lead For aught I can see to the contrary, the basis of the Empire is really a free-trade basis. Let the Colonies remain at liberty to take their own course, and let us remain at liberty to follow ours. There will remain common ends, which do not entail bondage. It is not by putting fetters in place of either legal or fiscal liberty that we are likely to strengthen the only

me.

kind of bond than can unite us. I am not in the mind to take leaps into the dark. Our own people and the people of the Colonies have both to be considered. We can best serve the Colonies by remaining as rich and strong as we can. Our strength depends on the maintenance of our national income, an income which has grown to the enormous dimensions it has under a free-trade system, and which is still growing. Whatever other explanations may or may not be possible, there is the fact, and again I say I am not for a leap in the dark. Geographically this country is wholly different from the United States and Germany. What may have been a proper economic or military policy for them must be judged in the light of considerations which do not apply to our island nation, that can live only by commanding the ocean with its ships and neutral markets with its products. If we are to assist the Colonies financially, direct grants in aid would surely be safer and cheaper than any such departure into the wasteful and ill-explored region of indirect taxation.

It is more than half a century since the free-trade controversy was thoroughly investigated by Peel and Gladstone and the great economic thinkers and men of business who gave them the materials from which they drew their conclusions. I should like to see the whole matter investigated once more with equal thoroughness. Until it has been, we are not likely to come to an end of the flood of loose talk upon what is a difficult and highly technical topic. Meanwhile, it is to be noted that the vast majority of the experts remain adverse.

Executive and Parliamentary Adaptation.-I return, then, to the proposition which I have already ventured to submit to you, that we do well to turn our minds to the possibility of executive rather than Parliamentary or fiscal adaptations. Here there is room for the kind of change that proceeds no faster than the movement that renders it necessary. Here reform is not likely to clash with self-interest, and the rigidity that readily becomes irksome is avoided. The constitution of the Empire is a vast field of inquiry. It requires the most careful exploration. For him who would make changes in its organisation, knowledge and great capacity to think are as necessary as the ability to act.

THE HISTORY OF COMPARATIVE

JURISPRUDENCE.'

[Contributed by SIR FREDERICK POLLOCK, BART.]

First Appearance of the Term.-The name of comparative jurisprudence is modern; our current use of the term, with the full meaning which it now bears, is barely a generation old. It seems that about, or possibly before, 1830, some one applied the name of general or comparative jurisprudence to the process of ascertaining the "principles common to maturer systems" of law, "or the various analogies obtaining between them"; the result of which process, it seems to have been supposed, would be a system of universal principles of positive law.2 We are not now concerned to enquire what useful results we should derive from the proposed operation; I do not think any one would now maintain that a philosophy of law was likely to be among them. Whatever may be the value of the process or method thus indicated, it is not what we now call comparative jurisprudence or droit comparé. In the succeeding generation a learned and brilliant reviewer of the first edition of Maine's Ancient Law, whom I am permitted to identify as Mountague Bernard, wrote thus: "The fields of study immediately adjacent to Law are History and Ethics, each of which, indeed, may be so extended as to include a great portion of it; while law itself embraces a vast region, the domain of comparative jurisprudence, of which English Law forms a small province." 3 No further light is thrown by the context on the precise meaning to be attached to the term. The learned writer, however, fully recognised that existing legal institutions cannot be understood without some knowledge of their history, and therefore he cannot be supposed to have regarded comparative jurisprudence as a thing standing apart from historical study and discrimination. Still, its object seems to have been conceived as practice rather than knowledge, the collection of materials for useful amendment or assimilation of existing

A farewell public lecture delivered in the University of Oxford on January 24th, 1903, with a few later corrections and additions.

2 Austin's fragment On the Uses of the Study of Jurisprudence, written in 1834 (A. on Jurisp., ed. 1869, ii. 1107). I have not been able to discover what writer is alluded to. 3 Quart. Rev., cx. 115 (July, 1861).

laws rather than any scientific or philosophical construction. In technical terms, comparative jurisprudence was regarded wholly or mainly as a handmaid to the theory of legislation.

"Comparative" formerly treated as excluding "Historical."-About ten years later we find Sir Henry Maine himself speaking of comparative jurisprudence, in his opening lecture on Village Communities, as not having for its object to throw light upon the history of law. "What it does is to take the legal systems of two distinct societies under some one head of law-as, for example, some one kind of Contract, or the department of Husband and Wife-and to compare these chapters of the systems under consideration. It takes the heads of law which it is examining at any point of their historical development, and does not affect to discuss their history, to which it is indifferent." Maine goes on to state, as a proposition "universally admitted by competent jurists, that, if not the only function, the chief function of comparative jurisprudence is to facilitate legislation and the practical improvement of law." The use of it is that "by the examination and comparison of laws" and methods of legal reasoning "the most valuable materials are obtained for legal improvement." He adds that the enquiry to be pursued in the following lecture-namely, the examination of the tenure of land, with its legal and economic incidents, in certain parts of India, in comparison with the history of corresponding institutions in Europe "can only be said to belong to comparative jurisprudence, if the word 'comparative' be used as it is used in such expressions as 'comparative philology' and 'comparative mythology." It seems to us, at this day, difficult to understand why any one should have taken exception to such use; and in fact the analogy of comparative jurisprudence to comparative philology was clearly stated as early as 1857 by Emerico Amari, of whom I shall speak later. Maine, however, continues, in a rather apologetic tone: "I think I may venture to affirm that the comparative method, which has already been fruitful of such wonderful results, is not distinguishable in some of its applications from the historical method." It is curious to see how far the master still was, ten years after the publication of Ancient Law, from realising the importance of his own work. If there is anything we have learnt from Sir Henry Maine, it is that intimate alliance between comparative and historical research is not only natural and desirable, but necessary for either branch of work being efficiently done. If there is any book to which a modern teacher would point as a typical example of what is meant by comparative jurisprudence, it is this very series of lectures on Village Communities in the East and West. Maine's hesitation seems to have been a kind of expiatory offering to the ghosts of those mechanical and external conceptions of human institutions which he did so much to destroy-if indeed there can be ghosts of vain shadows that never had any life.

The modern canon of comparing institutions in parallel stages, not

necessarily contemporaneous.-No doubt the method is important and not the name. It makes no great difference whether we speak of historical jurisprudence or of comparative jurisprudence, or, as the Germans seem inclined to do, of the general history of law.1 What does matter is understanding that comparison of institutions is profitable only when we take account of the stage of civilisation and of special development to which the terms to be compared belong. The mere order of time has next to nothing to do with it, as one or two examples will readily show.

If we compare the Roman law of property which Papinian administered at York seventeen centuries ago with the English law of real property which the Court of Appeal now administers in London, it will be for the purpose of throwing light not on anything in the past history of English law, but on what English law may tend to become in the days of our children or grandchildren; for the classical law of Rome is, in all essentials, far more modern in everything relating to the ownership and disposition of landed property than the medieval system, eked out with cumbrous and piecemeal alterations, which still serves our turn. On the other hand, the commercial law of the Roman Empire under the Antonines and even under Justinian was archaic and rudimentary as compared with the modern development of the law merchant. Ulpian would have stared and gasped alike at a strict settlement and at a debenture payable to bearer, but for wholly different reasons. If, again, Papinian could have been transported from York to India, he would have found millions of men living under systems of family law so ancient that only faint vestiges of a corresponding stage could be found in Roman traditions and forms; and if he could now visit "Agra and Lahore of Great Mogul," he would find the same rules still being administered by English judges, having indeed suffered something of secular change, and more in some provinces than in others, but little changed on the whole in comparison with their world-wide difference from any modern Western law. To compare the institutions of Indian law and custom directly with modern English law can lead to nothing but ludicrous if not dangerous misunderstandings; as indeed happened in at least one celebrated instance.

Even in parallel comparison, history cannot be excluded.-It is true that, as Maine said, the provisions of different systems, taken at stages of development sufficiently corresponding to afford a real parallelism, can be compared, in form or on their substantial merits, without any explicit historical criticism. You cannot compare the law of the Twelve Tables as to execution against a debtor with, say, the Indian Civil Procedure Code, except by working through a great deal of intermediate history. But you can compare

1 Die Universalrechtsgeschichte, die man auch vergleichende Rechtswissenschaft zu nennen pflegt, hat die Aufgabe, wo möglich die Rechte aller Völker zu erforschen, der lebenden wie der toten, und diese Rechte zu erforschen, nicht nur was die objektive Rechtsordnung, sondern auch was die Betätigung der Rechtsordnung im subjektiven Rechtsleben betrifft.-J. Kohler in Encyklop. d. Rechtswissenschaft, 6th ed. 1902, pp. 17-18.