tions, in their rigorous forms, naturally obliterates all earlier memories, and a society, on attaining extreme stability and definiteness, loses, together with the conditions of future development, the traces also of its earlier processes of formation. Yet the assumption is unavoidable that in such societies customary law developed from unconscious accommodation and custom, and, on the other hand, that the systems of religious doctrine became consolidated merely from isolated conceptions and disposi tions slowly coalescing with each other. Indeed, the most ancient songs of the Vedas decidedly point to a period in which the personifying of the agencies of nature into divinities was still wavering, as was the application to the relations of life of transcendental notions, arising from religious conceptions and from primitive philosophical abstraction, which, at most, might manifest itself in special cases of doubt in judgments and decisions relating to concrete circumstances.

§ 230. The several steps in the transition from barbarous conditions to the cultured stage can be traced with much greater particularity amongst the Greeks. With them the phases and forms of the development of law are clearly brought out, one by one, from the age of Homer to the decay of the independent societies of Greece. Distinct from general, unreasoned, ancient custom, there appear, at first, in the divinely inspired Themistes, the declarations of law relating to special cases, in judgments which derive their authority from this very inspiration by the divinity, and not from the authority of the princes, or prominent persons sitting in judgment and serving as organs of justice, or from the approval of the mass of the people, standing by and expressing their sympathies. According to tradition, this phase of development was followed by that of mythical religious codes, such as the Code of Minos, codes which were imagined to be summaries of all the rules of Divine as well as of human order. It is possible, however, that the supposition of these mythical codes had its origin only in the circumstance that the

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imagination of the people sought for a prototype of the products of the semi-historical period, and referred it to the remoter pre-historic period, so to say, and that, proceeding at the same time from the notion of legal and consciously established order with which they became familiar in later times, they deemed it necessary to ascribe the ancient faith and custom, which had survived from the times of the Aryan migrations, to the dispositions of almost superhuman beings, blessed by direct converse with the divinity, and to derive them from their codes. It is, at all events, possible to follow out historically the stages of development succeeding those mentioned, when the communal society, after its earliest establishment by means of conquest, supplements and consciously modifies the ancient customary law, by such an organic and connected body of institutions and propositions of law, as expresses the conditions of the settlement and social organization after the conquest, and presents itself as the means of their preservation. Of such a nature was the customary law of Sparta, founded upon the laws of Lycurgus, likewise ascribed to Divine inspiration. Such was that which, in Athens, was derived from the laws of Draco, but was not able to assert itself in every point, in opposition to the more ancient general customary law; and such, to some extent, was the Code of Solon, of a partly similar character, only that in this case the positive and conscious establishment can be proved historically.

In Athens this system of laws was succeeded by the investment of the people with regular legislative functions, in connection with which a distinction was soon made between organic and permanent laws, requiring the co-operation of a greater number of factors and longer preparation, and the resolutions of the people bearing upon special cases. Finally, the current of the philosophical cultivation of the idea of law set in, without being, however, in Greece, followed by any scientific recasting of positive law, or by its systematic compilation.

§ 231. Much slower and more gradual than the development of law in Athens was that of the Roman law, which constantly combined the almost Spartan tenaciousness of the customary law with the conscious application and formation of new laws.

The institutions of the ancient Aryan customary law formed here the first body of law, but hardly any memorials of their earliest manifestations have been preserved in decisions, like the Themistes, or mythical codes; at most a parallel might be drawn between the former and the traditions of the Leges Regiæ, supposed to have been digested in the Jus Papirianum; and between the latter and the code alleged to derive from Numa, from which broken fragments were also cited by some writers of antiquity.

The work of legislation began in Rome, as in Athens, with the period of the expulsion of the kings, and of the definitive establishment of the communal state, not, however, in the shape of a general comprehensive code, but in that of special public laws. At the same time, the development of the civil law, which as yet was not influenced by the opinion of the mass of the people, was promoted by the interpretation of the customary law effected by the college of the Pontiffs. With the establishment of the law of the twelve tables, Rome afterwards obtained a code regulating all the relations of the state, and embracing also the former customary law and its interpretations, which was a memorial of the first great coalescence of the classes, of the fact of the state having become homogeneous, and of the conscious recognition of the harmonizing interests of the community. This code was, for this reason, invested with the whole authority of the conditions of existence of the state, and with an almost religious sacredness,—referred, however, not to the gods, but to the notion of country,— and was held during many centuries, although enlarged by several laws, to be unalterable in text. Hence, too, it served as a foundation for judicial explanation and for scientific definition, effected, partly, by extensive interpretation, and, partly, by the aid of legal fictions.

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In course of time, the principles of the Jus Gentium, (the roots of which also extended back into international custom connected with the ancient and sacred law), under the influence of claims arising from the intercourse with foreigners, and of the sense of equity, experienced a further development within the independent sphere of action of the prætor, a development assisted by the temporary legislative power of the prætor exercised by means of interpretation, of legal fiction, and of analogy, and also by taking into consideration special expediency.

The rules thus established, and, for the most part, invariably renewed and confirmed by the successive prætors, obtained, owing also to the soundness of their motives, as it were the force of customary law, and extending, in consequence of the influence of equitable considerations, likewise to the regulation of the relations subsisting between the citizens, crowded step by step into the place of the proper ancient civil law, and were, at the same time, supported and supplemented by the results of legislation which asserted themselves more and more in the sphere of private law.

The system of equitable law, Jus Equum, which thus arose, was likewise associated with the ideal law, Jus Bonum, and, subsequently, when Greek philosophical theories became popular in Rome, especially through Cicero, assimilated also with the law of nature, which, though embracing a wider sphere, was not always held to be capable of being actually established and asserted. At this point, in connection with the transformation of the communal society into the society of amassing wealth for consumption, began the systematic attempts at codification, yet, owing to the consequences of this very transformation, and to the circumstance that the theory of the Jus Naturale had just met with responsive sympathy, the matter of the law was not yet really ripe for codification.

There were required the arduous labours of four generations of jurisprudents, declaring their opinions, responsa, already invested with public authority with reference, not only

to cases which actually arose, but also to supposed theoretical, although always special, cases, before the Jus Honorarium, asserting the principles of Æquitas and of the Jus Gentium, was finally established in the Edictum Perpetuum. The exertions of four further generations of jurists were also required before every proper consequence deducible from the Jus Naturale could be infused into the body of the Roman law. This stage, again, was very soon followed by collective arrangements of the imperial Constitutions, simultaneously with the recognition of the Christian Church by the state; and, finally, two centuries later, when the Roman law had, under the influence of the ecclesiastical society, been transformed to a point beyond which the reconcilement between the conquering imperial spirit and the ecclesiastical spirit was no longer possible, the cultivation of the Roman law was definitely concluded by the compilation of Justinian, extending over every department of the law.

The history of the development of law in Rome also supplies the most important material for the doctrine of the sources and forms of law. For the Roman law, together with its material contents, was, in yet three instances, called upon to exert a permanent influence upon jurisprudence and its developments; namely, during the Middle Ages, beginning with the twelfth century, through the labours of the glossators and commentators; again, from the sixteenth century, through the systems of the law of nature and of reason, and of international law; and, finally, since the end of the eighteenth century, through that movement which received its impetus from the historical school and still continues in the legislation and in the codifying labours of the present age. Besides, in all modern theories formed in our days, the development of the Roman law figures conspicuously as a model, presenting and bringing into view the general rules of every development of law.

§ 232. The course of the development of law during the Middle Ages is accordingly twofold, and runs parallel with