Another grand step in the development of law is the severance of the judicial power from the legislative and the executive, which permits the rise of jurists, and of a regular legal profession. This is a slow process. In the stationary East, as a rule, the king has remained the supreme judge. At Athens, the sovereign people delegated its judicial powers to a large committee, but it got no further; and the judicial committee was hardly more free from political passion, or more competent to decide points of law, than the assembly itself. In England the House of Lords still, formally at least, retains judicial functions. Acts of attainder were a yet more primitive as well as more objectionable relic of the times in which the sovereign power, whether king, assembly, or the two combined, was ruler, legislator, and judge all in one. We shall not attempt here to trace the process by which this momentous separation of powers and functions was to a remarkable extent accomplished in ancient Rome. But we are pretty safe in saying that the praetor peregrinus was an important figure in it, and that it received a considerable impulse from the exigencies of a jurisdiction between those who as citizens came under the sovereign assembly and the aliens or semi-aliens who did not.
Whether the partial explanations of the mystery of Roman greatness which we have here suggested approve themselves to the reader's judgment or not, it may at least be said for them that they are verae causae, which is not the case with the story of the foster-wolf, or anything derived from it, any more than with the story of the prophetic apparitions of Jupiter on the Capitoline Hill.
With regard to the public morality of the Romans, and to their conduct and influence as masters of the world, the language of historians seems to us to leave something to be desired. Mommsen's tone, whenever controverted questions connected with international morality and the law of conquest arise, is affected by his Prussianism; it betokens the transition of the German mind from the speculative and visionary to the practical and even more than practical state; it is premonitory not only of the wars with Austria and France, but of a coming age in which the forces of natural selection are again to operate without the restraints imposed by religion, and the heaviest fist is once more to make the law. In the work of Ihne we see a certain recoil from Mommsen, and at the same time an occasional inconsistency and a want of stability in the principle of judgment. Our standard ought not to be positive but relative. It was the age of force and conquest, not only with the Romans but with all nations; hospes was hostis. A perfectly independent development of Greeks, Romans, Etruscans, Phoenicians, and all the other nationalities, might perhaps have been the best thing for humanity. But this was out of the question; in that stage of the world's existence contact was war, and the end of war was conquest or destruction, the first of which was at all events preferable to the second. What empire then can we imagine which would have done less harm or more good than the Roman? Greek intellect showed its superiority in speculative politics as in all other departments of speculation, but as a practical politician the Greek was not self-controlled or strong, and he would never have bestowed on the provinces of his empire local self- government and municipal life; besides, the race, though it included wonderful varieties in itself, was, as a race, intensely tribal, and treated persistently all other races as barbarians. It would have deprived mankind of Roman law and politics, as well as of that vast extension of the Roman aedileship which covered the world with public works beneficent in themselves and equally so as examples; whereas the Roman had the greatness of soul to do homage to Greek intellect, and, notwithstanding an occasional Mummius, preserved all that was of the highest value in Greek civilization, better perhaps than it would have been preserved by the tyrants and condottieri of the Greek decadence. As to a Semitic Empire, whether in the hands of Syrians or Carthaginians, with their low Semitic craft, their Moloch-worships and their crucifixions—the very thought fills us with horror. It would have been a world-wide tyranny of the strong box, into which all the products of civilization would have gone. Parcere subjectis was the rule of Rome as well as debellare superbos; and while all conquest is an evil, the Roman was the most clement and the least destructive of conquerors. This is true of him on the whole, though he sometimes was guilty of thoroughly primaeval cruelty. He was the great author of the laws of war as well as of the laws of peace. That he not seldom, when his own interest was concerned, put the mere letter of the social law in place of justice, and that we are justly revolted on these occasions by his hypocritical observance of forms, is very true: nevertheless, his scrupulosity and the language of the national critics in these cases prove the existence of at least a rudimentary conscience. No compunction for breach of international law or justice we may be sure ever visited the heart of Tiglath-Pileser. Cicero's letter of advice to his brother on the government of a province may seem a tissue of truisms now, though Warren Hastings and Sir Elijah Impey would hardly have found it so, but it is a landmark in the history of civilization. That the Roman Republic should die, and that a colossal and heterogeneous empire should fall under the rule of a military despot, was perhaps a fatal necessity; but the despotism long continued to be tempered, elevated, and rendered more beneficent by the lingering spirit of the Republic; the liberalism of Trajan and the Antonines was distinctly republican nor did Sultanism finally establish itself before Diocletian. Perhaps we may number among the proofs of the Roman's superiority the capacity shown so far as we know first by him of being touched by the ruin of a rival. We may be sure that no Assyrian conqueror even affected to weep over the fall of a hostile city however magnificent and historic. On the whole it must be allowed that physical influences have seldom done better for humanity than they did in shaping the imperial character and destinies of Rome.
THE GREATNESS OF ENGLAND
[Footnote: The writer some time ago gave a lecture before the Royal Institution on "The Influence of Geographical Circumstances on Political Character," using Rome and England as illustrations. It may perhaps be right to say that the present paper, which touches here and there on matters of political opinion, is not identical with the latter portion of that lecture.]
Two large islands lie close to that Continent which has hitherto been selected by Nature as the chief seat of civilization. One island is much larger than the other, and the larger island lies between the smaller and the Continent. The larger island is so placed as to receive primaeval immigration from three quarters—from France, from the coast of Northern Germany and the Low Countries, and from Scandinavia, the transit being rendered somewhat easier in the last case by the prevailing winds and by the little islands which Scotland throws out, as resting-places and guides for the primaeval navigator, into the Northern Sea. The smaller island, on the other hand, can hardly receive immigration except through the larger, though its southern ports look out, somewhat ominously to the eye of history, towards Spain. The western and northern parts of the larger island are mountainous, and it is divided into two very unequal parts by the Cheviot Hills and the mosses of the Border. In the larger island are extensive districts well suited for grain. The climate of most of the smaller is too wet for grain and good only for pasture. The larger island is full of minerals and coal, of which the smaller island is almost destitute. These are the most salient features of the scene of English history, and, with a temperate climate, the chief physical determinants of English destiny.
What, politically speaking, are the special attributes of an island? In the first place, it is likely to be settled by a bold and enterprising race. Migration by land under the pressure of hunger or of a stronger tribe, or from the mere habit of wandering, calls for no special effort of courage or intelligence on the part of the nomad. Migration by sea does: to go forth on a strange element at all, courage is required; but we can hardly realize the amount of courage