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![handle is hein.beal/lwhtry0001 and id is 1 raw text is: [Notes supplementary to the Johns Hopkins University
Studies in Historical and Political SWoenee.-No. 8.]
LAW AND HISTORY.
BY WALTER B. SCAIFE, LL. B.; PH.D. (VIENNA).
The laws of a nation form the most instructive part of its hbstory.-Gibbon.
Wie das Volk, so das Recht, und wie das Recht, so das Volk, so dass erst durch die
Erkenntniss der ubrigen Seiten des nationalen Lebens die Natur des Rechts, und durch
diese umgekehrt wieder, die Eigenthamlichkeit und das Wesen des Volks verstindlich
wird.-Wilhelm Arnold.
Since the days of Savigny it has gradually become generally recognized
that the historical method of investigation is necessary to a thorough under-
standing of the law; on the other hand eminent historians have acknowl-
edged their obligation to the law books for valuable information. Sir Henry
Maine, in his Ancient Law, first published in 1861, showed practically
how a masterly historical work may be founded on a study of the law.
Various constitutional histories of high merit, based on public law, parlia-
mentary debates, etc., have of late years appeared and been widely read.
But there is another side to the subject which as yet seems to have attracted
but comparatively little attention. Aside from those laws directing the
action of government, whose working is patent to every observer, there is
in each country a great body of private law, which, governing the daily
actions of the people, has its silent, inconspicuous, but none the less sure
and weighty influence upon the national development. The growth of
custom into law and the latter's embodiment in institutions appear to the
present writer to form the very kernel of history ; while the reigns of kings,
the ordinary meetings of parliaments, the lives of prominent personages, are
merely the outer covering. In the obscure lives of the masses, is to be
sought the hidden centre of action, whose nature, and not that of the sur-
face, determines the main lines of historical development. This is true not
only in countries where the people, through their representatives, take an
active part in the work of governing, but even in those under despotic rule;
as is shown by the powerlessness of imperial decrees to stop such movements
as the growth of Christianity in ancient Rome, or the spread of democratic
ideas in Russia to-day. In the evolution of societies as in that of plants and
animals, it is the qualities and environments common to the great masses
of individuals which determine the nature of the species; and not those
uncommon, striking characteristics which may bring a few individuals into
prominence. The latter, it is true, may sometimes be indicative of new
conditions of life; and their possessors, accordingly, the first beginnings of
a new species of plants or animals; or in national development, they may
be the forerunners of a new political era. But they are rather the first
fruits of the silent workings of the past, than the sole cause of the changes
that are to follow.](ViewImageLocal?handle=hein.beal/lwhtry0001&div=1&collection=&method=preview&ext=.png&size=3)